TANZIL-UR-RAHMAN, CJ.--This appeal arises out of judgment dated 15-8-1991 passed by the learned Sessions Judge, Chitral, whereby he convicted the appellant Noor Hashim, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the said Order"), and sentenced him to seven years' R.I. With twenty lashes and fine of Rs.50,000 or in default to further undergo six months' S.I. For recovery of Rs.28,800 kilograms of opium from his possession.
2. Learned counsel for the appellant does not challenge the conviction but prays for reduction of sentence.
3. It has come in the evidence that the contraband recovered from the Kotha of the appellant was "Opium" and not "Raw Opium". Mr. Khalid Khan, learned Assistant Advocate-General, refers to the report of the Chemical Examiner, but it also says "Opium" (only) and not "Raw Opium". Article 4 of the said Order speaks of "Opium" and "Raw Opium" as two different species, "Raw Opium" is a latex, dried or partially dried, obtained from unripe capsules of papver somniferum Linn. (family Papaveraceae). Drying of the exudate is accomplished party by spontaneous evaporation and partly by applied heat, the product being manipulated into cakes. The principal constituent is the alkaloid morphine, together with smaller amounts of the alkaloids, narcotine, papaverine, the baine, narceine, meconidne and numerous other minor alkaloids. Its action is primarily that of a narcotic, though preparations of opium are used as diaphoretics and sedative in the treatment of coughs and colds. In fact, these are two forms of opinion. (See British Pharmacopoeia). In pre- partition days it used to be termed as "Excisable opium" and "Non--excisable opium" (See Excise and Salt Act, 1944 along with Schedule). The sentence of imprisonment prescribed for "Opium" is two years, whereas for "Raw Opium" it may extend to life imprisonment.
4. The relevant Article of the said Order reads as under:-- "4. Owning or possessing intoxicant.--Whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years or with whipping not exceeding thirty stripes, and shall also be liable to fine: Article 3 or Article 4 not to apply to certain acts. Provided that nothing contained in this Article shall apply to a non-Muslim foreigner or to a non-Muslim citizen of Pakistan who keeps in his Custody at or about the time of a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony: Provided further, if the intoxicant in respect of which the offence is committed is heroin, cocaine, raw opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
5. Mr. Khalid Khan, learned Assistant Advocate-General on behalf of the State, after consulting the record again, submitted that the record of the case does not show that it was "Raw Opium". He, therefore, concedes that the appellant cannot be sentenced for more than two years. The legal position that emerges is that the offence in relation to the possession of "Opium" is punishable with sentence of imprisonment not exceeding two years or with whipping not exceeding thirty stripes and also with fine, irrespective of its quantity, whereas in the case of "Raw Opium" if its quantity exceeds one kilogram, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes and shall also be liable to fine.
In result the conviction is maintained but the sentence is reduced from seven years to two years'
R.I. The punishment of twenty stripes is set aside as the sentence of stripes is only an alternate punishment if the offence relates to "Opium" as prescribed under Article 4 of the said Order.
However, the sentence of fine will remain intact. As the sentence of imprisonment has been reduced to two years and the quantity of contraband recovered from the possession of the appellant is quite huge, I do not think it proper in allow him the benefit as provided under section 382-B, Cr.P.C. At the request of the learned counsel for the appellant, it is, however, clarified that the sentence of two years will run from the date of conviction by the learned Sessions Judge.
7. With the above modification, the appeal is dismissed.
8. The Suo Motu notice for enhancement of sentence, in the circumstance, stands discharged.
9. Before parting with the matter it will not, perhaps, be out of place to observe that it will be advisable for the Legislature if the word "raw" before "opium" used in the second proviso is deleted from it, as it will be conducive to the attainment of the aims and objects underlying the promulgation of the Prohibition (Enforcement of Hadd) Order, 1979. It will also remove the difficulty in the matter of awarding proper punishment in such cases.
10. Let a certified copy of this judgment be sent by the Registrar to the Ministry of Law, Justice arid Parliamentary Affairs, Government of Pakistan, Islamabad, for such legislative action as it thinks proper.