' MUFTAKHIRUDDIN, J.--This is an appeal against the order of conviction passed by Sessions Judge, Rawalpindi in Hudood Case No,23 of 1985 whereby the appellant Muhammad Idrees son of Abdul Latif, caste Kashmiri has been convicted under Article 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979 (hereinafter referred to as the Order) and sentenced as
(d) Under Article 3 of R.I. For three years whipping numbering the order , five strives and a fine of Rs,1,000 or in
(b) Under Article 4 of the Order. Default of payment of tine to further undergo S.I. For three months.
R.I. For three years with whipping numbering five stripes and a fine of Rs,1,000 or in default of payment of fine to further undergo S.I. For three months.
The sentences are ordered to run concurrently. The appellant has, been allowed the benefit of section 382-B, Cr.P.C.
2. The prosecution case before the trial Court as disclosed by the F.I.R. Got recorded in this behalf by Niaz Hayat (P.W.5) in the Police Station Taxila on 5-10-1985 was that while the Excise Staff and the police official were on patrol duty in connection with the detection of narcotics found the accused/appellant travelling in a bus. He was A searched and a polythene envelope containing 120 grams Heroin was detected from the right fold of his Shalwar.
Five grams out of the said heroin was separated and sealed in a parcel for the analysis of the chemical examiner, the rest was also sealed in a parcel. A sum of Rs,150 was also found from the pocket of the shirt. Both the parcels and money were taken into possession and the recovery memos. Duly prepared in that behalf were attested by the persons in whose presence the recoveries were made from the accused/appellant. These witnesses are Ch. Nisar Ahmad and Daud Khan. The F.I.R. Was duly recorded by Ghulam Murtaza Shah (P.W.3). The Heroin recovered from the accused were kept in police Malkhana by Ahmad Nawaz H.C. (P.W.2). Later the parcel was taken by Mudasar Hussain F.C. (P.W.1) and remitted to the Chemical Examiner, Rawalpindi. The report of the Chemical Examiner was in the affirmative, hence the challan was put up before the Court.
3. The prosecution witnesses mentioned above appeared in the trial Court and supported the case of the prosecution. The accused/appellant in his defence pleaded that he was innocent and has been involved by the police falsely. He appeared as a witness under section 340(2), Cr.P.C. And said that nothing incriminating was found from him. The recovery of Rs,150 from him was also denied and it was asserted that he was arrested from near the police post while he was begging for fare as he intended to go to Wah Factory to meet his relations there. It was however, admitted that no P.W. Had any enmity with him. A defence witness was also produced who only deposed that he had the accused employed in the Municipal Corporation Rawalpindi. The accused had gone to Taxila from Rawalpindi on 5-11-1985. About 8/10 days thereafter received a message that he was in Jail. The trial Court disbelieved the defence and convicted the appellant and sentenced him as mentioned above.
4. We have heard the counsel for the appellant and have examined, the record. From the lengthy cross-examination made on behalf of the appellant in the trial Court nothing could be gathered which may discredit any of the prosecution witnesses. No motive whatsoever was suggested. The recovery of the Heroin was established beyond doubt. The accused/ appellant was proved to have travelled on the Bus No,MRA/5176 coming from Taxila side and was checked by the Excise Staff on 5-10-1985. The contention of the learned counsel for the appellant that no public witness was associated in the search and produced in Court has been replied by the witnesses that the passengers in the Bus were in a hurry to go for condolence as such none was prepared to stay and be witness to the search. This explanation found favour with the learned trial Court and we found no reason to differ in that behalf when it is not possible to associate any passenger travelling in the Bus, the Excise Staff is competent to depose about the facts. This is so because no motive has been suggested against them. The defence version could not be established through any person in Court and the solitary defence witness examined by the appellant in the trial Court did not say anything about the occurrence that day as he was not present there. But since there is no evidence against the appellant that he was selling the Heroin, his conviction under Article 3 of the Order is set aside. The order of conviction, however, under Article 4 of the Order is sustained but we reduced the sentence to two years and also the fine to Rs,500 and in case of default the appellant shall suffer further simple imprisonment for one month. The sentence of whipping being uncalled for is set aside. The appellant shall have the benefit of section 382-B, Cr.P.C. As ordered by the trial Court.