1. ' The appellant has been convicted under Article 4 of Prohibition (Enforcement of Hadd) Order 1979, and sentenced to suffer R.I. For two years, and to pay fine of Rs,1,000 or in default to suffer further R.I.
2. For three months by the learned 1st Additional Sessions Judge, Karachi (West) vide judgment, dated 1-12-1986.
3. ' The brief facts of the prosecution case are that on 14-1-1985 the appellant was found in possession of 40 packets of heroin weighing 40 grams which were secured and sealed by Lal Khan A.S.I. After preparing Mashirnama of recovery in presence of Mashirs Noor Mohammad and Nasim Khan. After the recovery was made the complainant took the accused and heroin recovered from him to the police station and lodged his F.I.R. After necessary investigation the appellant was challaned.
4. ' A formal charge was framed against the appellant to which he pleaded not guilty.
5. ' At the trial the prosecution examined Mashir Noor Muhammad P.W.1. He has deposed that on 14-1- 1985 he was sitting with his brother at his shop when at about 4-45 p.m. The police party came at the shop of his brother and requested them to assist them in tracing out a person by name Yamin, as according to them he was dealing in heroin. That they told the police that they did not know any person by name Yamin. They remained at the shop, and the police party went away. After some time they heard commotion coming from the side of cattle pen, he saw that a person by name Yamin was arrested by police. About 15/20 persons of the Mohalla had collected there. The police searched the person of the accused in his presence and recovered heroin from the pocket of his shirt. He was informed that it was heroin. The heroin was weighed and it was 40 grams. The police had also secured one wrist watch and Rs,50 from the accused, such Mashirnama was prepared in his presence and co-Mashir Nasim Khan and the same has been produced as Exh.7. In cross- examination he has deposed that he resides at the distance of 3 miles from the place of Wardat.
6. He had come to see his brother at his shop on the date of incident. The police had weighed the heroin at the spot because police was allowed to use the scale which was used by the Goldsmith.
7. ' Lal Khan A.S.I. P.W.2 has deposed that on 14-1-1985 he was posted at Orangi. On that day he left police station at 2-00 p.m. And when he reached Urdu Chowk in Orangi Town Section 11-F, he received spy information that one Yamin was selling heroin near Kala Khan's cattle pen, he then picked up two persons namely Noor Muhammad and Nasim Khan and went to the cattle pen and arrested accused Yameen in presence of the Mashirs. He recovered 40 Puries of heroin from the accused. He also recovered Rs,50 and wrist watch from him. He weighed the heroin at the spot and it was 40 grams. He sealed the heroin at the spot, in presence of the above Mashirs, and arrested the accused. The Mashirnama has been produced as Exh.7. He came to the police station and lodged the report, the F.I.R. He has been produced as Exh.9. He then recorded the statements of the witnesses. He also sent heroin for Chemical Examination, and the report has been produced as Ex.10. In cross-examination he has deposed that he does not know if accused sells fruits. He has denied that the accused was involved falsely because he had refused to supply fruits to the police free of charges. He has also denied that the accused was involved by him falsely at the instance of subordinate police staff. He picked up P.W. Noor Muhammad from the shop situated in Urdu Chowk Orangi Town. He had weighed heroin himself with the scale which was already with him. The heroin recovered from the accused was 40 grams which included the papers in which the Puries were wrapped. He had sent heroin to the Chemical Analyser on 17-1-1985 thier obtaining the permission from his superiors. He has denied the suggestion that he had foisted this heroin on the accused at the instance of his subordinate staff.
8. ' After close of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. In which he denied the allegations. He has further stated that he was innocent. He was a fruit seller and used to pay Rs,3 per day to police on duty as illegal gratification. He refused to pay Rs,3 to the policeman on duty. One day prior to this alleged incident there was exchange of hot words between them. On 2nd or 3rd day thereafter a policeman came to him and asked him to give him one Petti of apples free of charges, because it was required by the S.H.O. But he refused.
9. On the next day same policeman came to him at about 11-00 or 11-30 a.m. And told him that he was called by the S.H.O. At the Orangi Police Station. He went to the police station where S.I. Lal Khan asked him as to why he had exchanged harsh words with police man. Thereafter the said Sub- Inspector gave him beating and involved him in this false case. The accused also examined himself under section 340(2), Cr.P.C. And he was cross-examined by the learned State counsel.
10. ' The learned trial Judge while relying upon above witnesses has convicted the appellant as described above. The present appeal is directed against the above judgment and conviction.
11. ' I have heard Mr. Mir Maqsood Ali, learned counsel appearing for the appellant, and Mr. Akhlaq Ahmed Siddiqui learned counsel appearing for the State, and have also gone through the R&P of the case.
12. ' Mr. Mir Maqsood Ali learned counsel appearing for the appellant has contended that there were contradictions in the eivdcnce of complainant Lal Khan and Mashir Noor Muhammad. That there was non-compliance of provisions of sections 103 and 51, Cr.P.C. That the chemical report did not give the details of examination.
13. ' Mr. Akhlaq Ahmed Siddiqui learned counsel appearing for the State has contended that the evidence produced by the prosecution was straightforward, natural, and reliable, and contradictions if any were minor in nature. That Mashir Noor Muhammad has deposed that he had gone to shop of his brother which is situated near cattle pen from where the appellant was arrested and, therefore, there was no breach of provisions of sections 103 and 51, Cr.P.C.
14. I have considered the contentions of the learned counsel and have gone through the R&P of the case. The evidence of complainant Lal Khan and Mashir Noor Muhammad appears to be straightforward, natural, and reliable. There was no serious contradiction in their evidence which could affect their veracity. Mashir Noor Muhammad has deposed that he had gone to meet his brother who had a shop in the same vicinity in which the cattle pen from where the accused was arrested is situated. The appellant has not alleged any enmity with Mashir Noor Muhammad. Even no direct enmity is alleged against the complainant Lal Khan. The defence of the applicant appears to be unnatural inasmuch as the applicant or his relations did not make any complaint against the complainant Lal Khan about false implication. From the evidence which has been produced by the prosecution in this case I am of the considered view that the prosecution had proved its case beyond reasonable doubt against the appellant. As far as the chemical report is concerned it clearly shows that the material sent for chemical examination was heroin powder and if the defence was dissatisfied with the report they could call the chemical examiner for cross- examination, but no such request was made on behalf of the appellant. As far as the legal plea is concerned Mashir Noor Muhammad has clearly stated that he had gone to meet his brother at his shop which is situated near cattle pen from where the applicant was arrested. In view of the above circumstances of the case I am of the considered view that the prosecution had proved its case beyond reasonable doubt against the appellant and I do not find any reason to interfere with the judgment of the learned trial Judge.
15. ' However, the appellant is entitled to the benefit of provisions of section 382-B, Cr.P.C. In respect of the period he has remained in jail as under trial prisoner and after his conviction. With this modification the appeal is dismissed.
16. ' Before parting with the case I would like to mention that the provisions of Article 4 show that if the quantity of heroin recovered is more than 10 grams, then it was mandatory for trial Court to award sentence of 2 years, stripes, as well as fine, but the learned Judge has failed to award sentence of stripes in this case. I hope the learned Judge will be careful in future in awarding sentence in such cases.