' Sial Marjan and Mahboob, petitioners, stood their trial under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called as the Order) in the Court of Mr. Fazal Karim Khattak, a Magistrate of the First Class/Sub-Divisional Magistrate, Lahore, District Swabi. The learned trial Magistrate convicted the petitioners under Article 3 of the Order and sentenced them to rigorous imprisonment for 1-1/2 years with ten stripes and fine of Rs,2,000 each or in default to undergo rigorous imprisonment for 3 months each. Both of them were also convicted under Article 4 of the Order and sentenced to rigorous imprisonment for 6 months and fine of Rs,1,000 each or in default to suffer rigorous imprisonment for 3 months each. Aggrieved therefrom, they, filed an appeal which was decided by Mr. Mussadiq Hussain Gilani, the learned Sessions Judge, Swabi, who vide his order dated 9-3-1994, while maintaining the convictions and sentences of the petitioners tinder Article 3 of the Order, set aside their convictions and sentences under Article 4 of the Order "because Article 3 of the Order covers the offences of possession and transportation of narcotics.
"Feeling still dissatisfied, the convicts/petitioners have come up in revision to this Court.
2. Briefly stated, the facts of the case are that on 20-3-1991 Excise Party under the command of P.W.
Momeen Khan Inspector held picket near Petrol Pump on Jhangiri-Swabi Road and in consequence intercepted at 10-15 hours No,PRH-4888 which was being driven by Sial Marjan, petitioner, while Mahboob, petitioner, was occupying the front seat with him. The search of the vehicle led to the recovery of 5 packets of contraband `Charas' from a secret cavity thereof which wieghed 5 Kilograms and was taken into possession. Four grams of the substance was separated from each packet and was sealed into parcel while the remaining `Charas' was separately sealed into parcel vide memo. Exh.PK. Both the petitioners were arrested and a Murasila Exh.PA/1 under Article 3/4 of the Order was scribed by Momeen Khan Inspector (P.W.) on the basis of which a case was duly registered the same day at Police Station, Lahore vide F.I.R. Exh.PA. Eight grams of Charas sealed into parcel was despatched to the Chemical Analyst. His positive report is Exh.PE.
3. At the trial, the prosecution examined, besides P.W. Momeen Khan Inspector, P.Ws. Adil Sher, F.C.
And Shamoos Khan, L.H.C. To substantiate the charge of conscious possession and transportation of the contraband Charas. These allegations are substantially supported by P.W. Muhammad Ashraf Khan, S.I., the then S.H.O. Of Police Station, Lahore.
4. When examined under section 342, Cr.P.C., the petitioners denied the recovery and professed innocence. When asked as to why the P.Ws. Have deposed against them, their answer was that "they were inimical". They declined to adduce any evidence in defence and to be examined on oath.
5. Mr. Javed A.Khan, learned counsel for the petitioners, has assailed the impugned orders of the two Courts below on three-fold grounds. His first contention is that the case of the petitioners bristled with grave doubts because notwithstanding the recovery of the narcotics near the Petrol Pump on main Jehangira-Swabi Road, the private witnesses were not associated with the recovery and instead only the police witnesses had testified to the recovery memo.Ex. PK. In support of this proposition, two cases of: Ghulam Haider Shah v. The State (PLD 1988 FSC 38) and Mumtaz v. The State (1987 PCr.LJ 200 were referred. His second contention is that the report Exh.PE of the Chemical Examiner could not be relied upon for conviction because he has not furnished in his report the opinion and the grounds on which his opinion is based and, lastly; that the petitioners having suffered the ordeal of protracted trial from 20-3-1991 to 16-1-1994 had been visited with punishment rather severely.
6. As against this, Mr. Abdur Rauf Khan Gandapur, learned counsel for the State, has supported the order of convictions on the ground that the evidence of the police officials is worthy of credence and, therefore, the convictions and sentences recorded against the petitioners based on the testimony of police officials which per se was not vitiated merely because they were police officials.
7, The first contention of the learned counsel for the petitioners that recovery of the contraband narcotics had not been witnessed by any public witness is ex facie untenable. In Shah Nawaz v. The State PLD 1986 FSC 242) and Muhammad Shah v. The State (PLD 1984 SC 1978) this objection was repelled holding that a bare reading of section 103, Cr.P.C. Would make it clear that it refers to the search of place and not of persons. The latest view which confirms the earlier one on this proposition has been reiterated by the Shariat Appellate Bench in Malik Aman v. The State (1986 SCM R 17) wherein searches other than those made in the dwelling house, the provisions of section 103 ibid were held not to attract. Besides, no enmity whatsoever has been suggested to the recovery witnesses or P.W. Momeen Khan Inspector, the searching and seizing officer with the petitioners. The mere fact that the prosecution witnesses happened to be the police officials is not enough of a reason to discredit their testimony. Nonetheless, I should not be misunderstood that the requirement of associating public witness has been altogether dispensed with otherwise it would be a tool in the hands of the police to concoct the cases with a view to involving innocent people.
8. The second argument of the learned counsel for the petitioners is equally fallacious in that no request was made to the trial Court for summoning the Chemical Examiner for evidence if the report was meagre, cryptic and incomplete and further that the learned trial Court was consciously sharing this view. Nothing of the sort is available on the record.
9. The next submission of the learned counsel that the petitioners have been dealt with rather harshly in the matter of sentence has, however, some substance. As stated earlier, the quantity and kind of narcotics i,e, `Charas', the number of the petitioners i,e, two and the time consumed in the conclusion of trial are some of relevant considerations for the determination of adequacy of the sentence. Taking into consideration I am of the view that ends of justice would be met if the sentence of imprisonment awarded to each one of the petitioners is reduced to nine months and the sentence of lashes is reduced to five but instead the fine should be enhanced from Rs,2,000 to Rs,5,000 each which is ordered accordingly. With this modification in the sentence, this criminal revision is dismissed.
10. Above are the reasons for the short order which was passed by me on 14-5-1994.