Khaliq Dad I.H.C, of Police Station Tangi was on Gasht in Bazar Tangi Nusratzai on 12-8-1990 when he received information (hat Rashid appellant herein was selling heroin. He searched for the appellant and found him near the Hujra of Sultan Khan. The I.H.C. Carried out the personal search of the appellant and brought out heroin contained in 20 packets from the side pocket of his shirt.
The heroin was weighed and it came to be 20 grams which was taken into possession by I.H.C. And a packet was separated therefrom for chemical analysis. The appellant was arrested and complaint was sent to Police Station Tangi where F.I.R. No 250 was recorded on the same day.
2. After investigation the appellant was sent up for trial before the Additional Sessions Judge, Charsadda under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 to which he pleaded not guilty and claimed trial The State produced 4 witnesses in proof of the prosecution case The appellant made a statement under section 342, Cr.P.C. But he neither produced any defence nor he made a deposition on oath. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant under Article 4 of the Prohibition Order and as he was also a previous convict he also convicted him under Article 24 of the Prohibition Order and sentenced him respectively to undergo rigorous imprisonment for one year, fine of Rs.1,000 or in default to further undergo rigorous imprisonment for 2 months and sentenced to undergo rigorous imprisonment for 2 years and fine of Rs1,000 or in default to further undergo rigorous imprisonment for three months for both the offences. The appellant has challenged his conviction and sentence by the appeal in hand, sent by him from jail. A suo motu was also issued to the appellant for enhancement of sentence.
3. P.W.1 Khaliq Dad had corroborated the contents of the complaint which he had sent to police station for registration of the case against the appellant. He stated that he had himself carried out the search of the person of the appellant and recovered heroin in question. P.W.3 Imran Uddin F.C.
Was a marginal witness of the recovery memo prepared after the heroin was recovered from the possession of the appellant. This witness identified his signature on the recovery memo. It transpires that the appellant had also made a confession on 15-8-1990 Exh.P.C.1, the same was proved by P.W.4 Fazh Rehman the then Sub-Divisional Magistrate Tangi. This witness had stated that he had observed all the legal formalities in recording the confessional statement of the appellant:
4. In his statement recorded under section' 342, Cr.P.C. The appellant denied that any heroin was recovered from his possession. He also denied the making of the confession. Evidence was also brought on the record in the statement of P.W.1 Khaliq Dad that the appellant was a previous convict as he was charged under Article 3/4 of the Prohibition Order in F.I.R: No.161 on 28-5-1989 in Police Station Tangi. As such Article 24 of the Prohibition Order was also considered by the learned Additional Sessions Judge against the appellant.
5. I have minutely perused record of the case and have also heard the arguments of the learned counsel for the parties.
6. In so far as the offence of being found in possession of 20 grams of heroin against the appellant is concerned, more than sufficient evidence had been brought on the record to substantiate the same. However, there was no evidence brought, on the record to prove that the appellant had been convicted in the offence which was registered, against him by F.I.R. No.161, dated 28-5-1989 of the same police station under Article 3/4 of the Prohibition Order. It was, therefore, difficult to ascertain whether the appellant was a previous convict or not.
7. Taking into consideration the contents of the aforesaid paragraph I have come to the conclusion that there are two matters requiring consideration of this Court: Firstly, whether the appellant was appropriately convicted for the offence which was proved against him in the case in hand; and secondly, whether he could be convicted under Article 24 of the Prohibition Order as being a previous convict.
8. In so far as the first point is concerned, more than sufficient evidence was brought on the record to prove that the appellant was found in possession of 20 grams of heroin when he was apprehended by P.W.1 Khaliq Dad. He also made a confession on 15-8-1990 which is a strong material against him because the confession was voluntarily made and the learned Magistrate had observed all the legal formalities in recording the same. The confessional statement was also corroborated by the recovery of 20 grams of heroin from the personal possession of the appellant.
As such the minimum sentence which could be awarded to the appellant was rigorous imprisonment for two years, whereas the learned Additional Sessions Judge has awarded him imprisonment only for one year. While I will maintain the conviction of the appellant under Article 4 of the Prohibition Order in the case in hand, I will enhance the sentence of imprisonment to rigorous imprisonment for two years while maintaining the'' sentence with regard to fine.
9. In so far as the second point is concerned, since there was brought no evidence on the record to prove that the earlier case registered against the appellant .Had ended in conviction, he could not, therefore, be convicted and sentenced as being a previous convict. As such the conviction and sentence of the appellant under Article 24 of the Prohibition Order is set aside. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
N.H.Q./739/FSC