Appellant Ahmad Khan has been convicted by the learned Additional Sessions Judge, Mianwali under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer R.I. For three years, ten stripes and fine of Rs.2,000 or in default to further undergo R.I. For six months on the allegation that on 21-9-1989 at about 8-00 a.m. He was found in possession of 11 grams of heroin which was recovered by the police patrol party from the right hand pocket of his shirt while he was standing in the street. The F.I.R. Was recorded on the complaint of Khalid Mehmood (P.W.3) in Police Station Isakhel the same day after half an hour of the occurrence.
2. The recovery has been proved by the two eye-witnesses namely P.W.3 Khalid Mehmood and P.W.2 Esab Khan. Khalid Mehmood is the S.H.O. Of Police Station Isakhel and leader of the raiding party while Esab Khan is a constable posted in the same police station and who happened to be a member of the raiding party. The prosecution case is that a secret information was passed on to the police that the appellant was in possession of heroin. On this information .a police party led by P.W.3 Khalid Mehmood and consisting of a number of constables reached the place of occurrence in the vicinity of Water Supply Scheme. The police party took body search of the appellant and as a result recovered 25 packet containing heroin. These 25 packets were opened and the contents were mixed up together and weighed and found to be 11 grams. The appellant was bro4t to the police station alongwith the case property and it has come in evidence that after two days i.e. 23- 9-1989 further quantity weighing 120 grams was recovered from his house for which separate proceedings were lodged and he has been convicted in that case as well. Against that conviction also he has filed Criminal Appeal No.34/1 of 1991.
3. The appellant was examined under section 342, Cr.P.C. By the learned trial Judge. He pleaded not guilty and raised a plea that since 1986 the police is after him involving him in several false cases.
The reason for this is stated to be old enmity with the area police. Unfortunately in the present case no such proof is forthcoming and no enmity is proved with the two police witnesses involved in the present proceedings. It would be too far-fetched to say that on account of a case registered against the present appellant under section 364, P.P.C. Some time in May, 1986, the area police has involved him in the present case as well as in some other narcotics cases. We have to go by the evidence on record and if such incidents are mixed up with the past incidents without having any reference to any individual police officer against whom the enmity may have occurred, it would be very difficult to decide cases of this nature. The appellant has refused to make any statement under section 340(2), Cr.P.C. On oath. He has not produced any witness in support of his plea that he was arrested on 18-9-1989 i.e. Two days earlier than the present occurrence. The contention of Mr. Muhammad Aslam Uns learned counsel for the State has some substance that had it been so he should have made a statement on oath to inspire confidence in truth of his plea. He has not obviously done so.
4. Khan Mushtaq Ahmad Khan, learned counsel appearing for the appellant, seems to be over enthusiastic in defending his client. Finding himself in difficulty he had to fall back on minor contradictions, which are normal in any such incident. For instance he pointed out that P.W.2 says that information was received in police station while P.W.3 says that the information was received during the course of their Gusht. The learned counsel further pointed out that while P.W.3 Khalid Mehmood makes a clean statement that all the 25 packets were mixed up together P.W.2 does not make any such statement. He simply says that the heroin was weighed and found to be 11 grams.
According to the learned counsel it is an omission. The point of enmity has not been brought home.
Nor the name of any Police Officer, against whom the enmity was, has been mentioned. This bald plea taken by the appellant is without any substance.
5. Now the question remains whether the sentence awarded to the appellant is reasonable. Mr. Muhammad Aslam Uns, learned counsel for the State very frankly pointed out that the net weight of heroin without the wrapper may be 10 grams and not 11 grams, a quantity which is on the border line from the point of view of conviction. If the quantity was not 11 grams but 10 grams the case would fall under the first part of Article 4 of the Order for which maximum punishment is two years or whipping not exceeding thirty stripes. Agreeing with the contention of the learned counsel for the State, I feel that ends of justice would be served if the sentence of three years is reduced to the period already undergone, which, I am informed, is one year and more than three months. So far as punishment of ten stripes is concerned, I was inclined to keep the punishment of whipping intact, but Khan Mushtaq Ahmad Khan, learned counsel for the appellant, pointed out that punishment of imprisonment and whipping as given in Article 4 of the Order are in the alternative. Both the punishments cannot be awarded simultaneously. There is substance in this argument and as the appellant has already suffered imprisonment, he should not be awarded whipping in addition to the term, of imprisonment. But fine is mandatory. I would, therefore, not disturb the fine I imposed by the learned trial Court. The appellant shall be released after payment of fine if not wanted in any other case. With this modification in the sentence the appeal is dismissed.