Appellant in this case is an old man. On 22-10-1990 at about 9-30 a.m. He was apprehended in the vicinity of Darbar Saeen Jamal on a spy information and 13 grams of heroin and 100 grams of opium was recovered from his possession. After preliminary investigation he was challaned and put up for trial before the learned Additional Sessions Judge, Sargodha. The learned Judge after recording evidence of two recovery witnesses and after recording the statement of appellant under section 342. Cr.P.C. As well as 340(2), Cr.P.C. Has convicted him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to rive years' R.I., twenty stripes and a f-ins of Rs.2,000 or in default to further suffer R.I. For one year.
2. The prosecution has examined two witnesses namely P.W.3 Tanwirul Haq and P.W.4 Karim Nawaz.
The former is an Inspector in the Excise Department. The latter belongs to the regular polite force of the rank of Inspector. He is attached to the Narcotics Staff. Both have stated that on 22-10-1990 when they, alongwith other excise officials happened to be at Suleman Pura Road near Bawa Saeen Jamal, a spy information was received by Karim Nawaz that some persons were selling heroin in Baboo Mohallah, Baba Saeen Darbar Road. The informer actually accompanied the raiding party and on reaching the spot pointed out the accused who was found standing there.
The appellant tried to slip away on noticing the approaching raiding party but was somehow apprehended. His body search was carried out and as a result 100 grams of opium and 13 grams of heroin were recovered. The recovered material was seized under recovery memo. P.1 and P.2, respectively. Sample weighing six grams was drawn from opium while sample weighing two grams was drawn from the heroin. They were sent to the Chemical Examiner and vide report of the Chemical Examiner Exh. P.F. The material was confirmed to be opium and heroin. Some cash was also recovered during search.
3. The accused appellant was examined by the learned trial Court under section 342, Cr.P.C. He also made a statement in his defence under section 340, Cr.P.C. The defence of the appellant is that the case is false and he has been falsely implicated on account of personal grudge against him by one Rab Nawaz, A.S.I. The reason for this grudge is stated to be that sometime back father of the appellant had given evidence in a murder case against one of the relatives of this Rab Nawaz.
Incidentally Rab Nawaz and the appellant belong to District Mianwali. In the first place there is no proof of any such enmity or any such murder case on the record except the bald statement of the appellant. Secondly, assuming that there was any such case it would be too far-fetched to hold that merely on account of some old friction between Rab Nawaz, Inspector and the father of the appellant other police officers would yield to the pressure of Rab Nawaz to the extent of implicating an innocent old man in such a dirty crime. The plea advanced by the appellant in his defence seems to be of no substance.
4. In the result there is no reason` to disagree with the findings of the learned Additional Sessions Judge or to disturb the findings in the appeal.
5. The question of quantum of sentence is, however, debatable. Recovery of heroin is only 13 grams alongwith 100 grams of opium. Had the recovery been 10 grams the maximum punishment provided would be two years under Article 4 of the Prohibition Order. Here the punishment of 20 stripes and Rs.2,000 fine is also a part of punishment and to award the appellant imprisonment for five years would be quite hard. The imprisonment would affect the family members of the appellant. The substantive sentence of imprisonment needs reappraisal. It should be reduced from five years to two years' R.I. This term of imprisonment of two years alongwith 20 stripes and fine of Rs.2,000 would meet the ends of justice.
6. With this modification in sentence, the appeal is dismissed. The appellant has been given the benefit of section 382-B, Cr.P.C. That would remain undisturbed.