' Muhammad Roshan, Raz Muhammad, Parangey and Saiful Malook were tried for the offences punishable under Article 3/4 of the Prohibition (Enforcement of 1-ladd) Order, 1979 by Ex Officio Additional Sessions Judge, Quetta and by judgment, dated 10-9-1990 he convicted Muhammad Roshan, Raz Muhammad and Parangey and each of them has been sentenced to undergo R.I. For three years with five stripes and fine of Rs, five thousand, in default of payment of fine they are to suffer R.I. For three months more but co-accused, Saiful Malook, was acquitted.
2. Appellants Muhammad Roshan and Raz Muhammad have filed Criminal Appeal No,27/0 of 1990 jointly while co-accused, namely, Parangey has not filed any appeal.
3. The case of prosecution is that on 10-12-1989 at about 3-00 p.m. The shop of Muhammad Roshan was raided by Malik Saeed Jan Kansi, F.I.O., Pakistan Narcotics Control Board and his party. It is alleged that Muhammad Roshan, Raz Muhammad and Parangey were present in the shop of Muhammad Roashan and raiding party found a bag lying in between them and they were busy in opening the above said bag. They were apprehended on the spot. The bag contained 9-50 kilograms opium. The case was registered. They were sent up alongwith other accused for trial.
4. I have heard Syed Ayyaz Zahoor, counsel for appellants, Muhammad Roshan and Raz Muhammad. He has argued that case has not been proved against appellants and there are some legal infirmities as no search-warrant was taken from Magistrate. He has frankly submitted that he does not press the appeal on merits but requests for reduction in sentence on the ground that appellant Muhammad Roshan is a poor man running Dry Cleaner shop and is not previous convict.
He has submitted that opium and raw opium have not been determined and all the three persons have been convicted. Mr. Aurengzeb, counsel for the State submitted that he has no objection if sentence is reduced.
5. The appellants alongwith Parangey were arrested from the shop of Muhammad Roshan and it has been proved from the evidence of Malik Saeed Jan Kansi, complainant, P.W.2 Sardar Dur-e- Yaman, P.W.3 Ghaffar Khan, Chemical report and from the evidence of Investigating Officer that opium weighing 9.50 Kg. Was secured when all these accused were present. They all have been convicted. During the course of arguments, the learned counsel has also taken the plea that question of opium and raw opium is yet to be determined as in report of Chemical Examiner it has not been clearly mentioned that the narcotics secured was raw opium. The point regarding discrimination of opium and raw opium is being considered by Full Bench of this Court. In case of recovery of raw opium and upon conviction under Article 4 of the Prohibition Order the punishment for possession of more than one Kg. Raw opium could be extended to imprisonment of life but minimum sentence should not less than two years. I do not like to enter in this controversy at this stage but in this case three persons were found in possession of opium and learned counsel for the appellants frankly has not pressed the appeal on merits but only argued the case on the ground of reduction of sentence. There is nothing on record to show that appellants are previous convicts or dealing in opium or narcotics. I am of the view that case for reduction in the circumstances of this case is made out. I, therefore, reduce the sentence of appellants from three years to two years' R.I.
But maintain the sentences of stripes and fine. Appellants are given benefit of section 382-B, Cr.P.C.
With this modification the Criminal Appeal No,27/Q of 1990 having no merits is dismissed.
6. Convict, Parangey has not filed appeal but his case is identical to that of Muhammad Roshan and Raz Muhammad. I have reduced the sentence of appellants and in view of PLD 1949 Lah. 179 and 1969 P Cr. L J 446 the benefit could be extended to the person who did not file appeal. I, therefore, reduce the sentence of co-accused, Parangey, from three years to two years' R.I. But maintain the sentences of fine and stripes. He may be informed through Superintendent Jail.
Sentence reduced.