FAKHRUDDIN H. SHAIKH, J.--The petitioner was convicted by Assistant Commissioner/First Class Magistrate, Gujar Khan, of offence under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to suffer R.I. For one year, vide his judgment, dated 31-8-1985. The petitioner had filed an appeal from the above judgment which was heard by the Additional Sessions Judge, Rawalpindi, who by his judgment, dated 14-10-1985 altered the conviction from Article 3 to offence under Article 4 of the said Order, but maintained the sentence. The petitioner was also given benefit of section 382-B, Cr.P.C. Of the period of detention undergone during the trial. The above two decisions have been challenged by this Revision Petition.
2. The facts of the case are that on 19-1-1984 Mr. Niaz Hayat (P.W.3) received spy information that a person was likely to arrive at Gujar Khan Bus Stop with Charas. He formed a raiding party including Mr. Ghulam Rasul, A.S.I. Gujar Khan and Muhammad Jamil, H.C. Gujar Khan Police station and went to the Bus stop. A bus arrived at about 8 a.m. It is alleged that the petitioner was travelling in that bus. He was asked to get down from the bus on suspicion and. His person was searched. It is alleged that one Kilogram of Charas was secured from his person. A portion of the Charas was separated and sealed into a parcel for the purpose of sending it to the Chemical Examiner.
Remaining Charas was sealed in another parcel. Mr. Niaz Hayat, Excise Inspector, lodged complaint which was recorded by Mr. Ghulam Rasul, A.S.I., who had sent it to the police station for registration of the case. Mr. Ghulam Rasul also investigated the case and challaned the petitioner.
3. In support of the prosecution case there are three witnesses of the recovery, namely P.W.2 Mr. Ghulam Rasul, A.S.I P.W.3 Mr. Niaz Hayat. Excise Inspector and P. W.4 Muhammad Jamil. H.C. Other witnesses are formal being in respect of preservation and despatch of the parcel to the Chemical Examiner whose report is positive.
4. The petitioner was asked during his examination under section 342, Cr.P.C. About the evidence on record, he replied that allegations were false. Specific question was asked about the Chemical Examiner's report about which he stated that it was bogus. He has examined one defence witness namely D.W.1 Umar Hayat, who has simply stated that the petitioner is a poor man having nine sisters and brothers and that he earns his livelihood by doing labour. He further stated that he also offers prayers and bears good character.
5. A preliminary objection has been raised by Mr. Rab Nawaz Noon, the learned counsel for the petitioner, to the effect that Article 3 of the Qanun-e-Shehadat, 1984, has not been complied with by the trial Court inasmuch as he has called to determine the competence of each witness in accordance with the qualification prescribed by the injunctions of Islam. He has relied upon proviso
(3) of Article 3 of the Qanun-e---Shahadat, which reads as under:- "Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available."
6. It has been argued by Mr. Rab Nawaz Noon that the above proviso is mandatory and non- compliance of the same has vitiated the trial. We are unable to agree with the learned counsel because the proviso does not say that if witness bearing qualifications prescribed by the injunctions of Islam are not available, then the accused is to go scot-free. In spite of omission to hold enquiry, the law provides that the Magistrate may proceed to record evidence of such witness who is available, and may decide the case on the basis thereof. Hence the proviso is not mandatory, because it does not provide penalty for non-compliance with the first part of the proviso. In the absence of provision regarding consequence of non-compliance with the first part of the proviso, it shall be presumed that the proviso is directory and not mandatory and as such its non-compliance would not vitiate the trial. Again official acts are presumed to have been performed in the normal course. It shall be presumed that no witnesses bearing the qualifications prescribed by the injunctions of Islam were available, therefore, evidence was recorded of such witnesses, who were available in the case. Again no prejudice has been caused to the petitioner on account of non-compliance with the above proviso. Hence the said non-- compliance was an irregularity, which would be curable under section 537, Cr.P.C. Because neither any prejudice has been caused nor any failure of justice has occasioned due to such non-compliance.
7. The learned counsel for the petitioner has also pointed out certain discrepancies in the evidence of the recovery witnesses, but all these discrepancies are on minor particulars. From the record we find that' evidence of the witnesses was recorded after about one year of the C incident. Hence discrepancies oil minor details of the incident were quite natural and would not be sufficient to discard their evidence. Both the Courts below have relied upon the recovery witnesses hence we do not find any reason to take exception to their findings.
8. For the above reasons, we uphold the order of the Additional Sessions Judge regarding alteration of conviction of the petitioner to Article 4 of the said Order. However, in view of the small quantity of, the Charas we feel that so far as sentence is concerned, the period of detention already suffered by him, which is about four months, will be sufficient. But we shall also sentence the petitioner to pay fine of Rs.1,000 or in default of payment of fine to undergo R.I. For three months. The Revision Petition is partly allowed to the extent indicated above. The petitioner is granted one week's time to deposit the fine M with the Deputy Registrar of this Court.