' Through the instant appeal appellant Zahir Shah son of Haji Muhammad assailed his conviction and sentence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to undergo two years' R.I. With a fine of Rs,1,000 or in default thereof to suffer further S.I. For 15 days.
He was also awarded the punishment of whipping numbering 5 stripes. He was, however, acquitted of the offence under Article 3 of the Order.
2. Briefly the facts of the case are that on 15-7-1991 at 18-00 hours he was found in possession of 15 grams heroin powder. A case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was consequently registered against him vide F.I.R. No,571 in Police Station, Gulbahar. Fazal Karim Khan A.S.I. (P.W.4) arrested the accused-appellant and drafted the Murasila Exh.P.A./1 which was sent to the police station where on its basis of formal F.I.R., Exii.P.A. Was drawn up. Out of the seized heroin one gram was separated and sent for chemical analysis and report received in this behalf is in positive. After recording the statements of the P.Ws. Challan was submitted against the accused in the Court of Sessions Judge, Peshawar.
3. The accused was charged under Article 3/4 of the Prohibition Order, 1979 to which he pleaded not guilty and claimed trial. In order to bring home charge to the accused the prosecution produced as many as four witnesses. P.W.1 Nasirul Mulk, S.H.O. (P.W.1) on completion of the investigation submitted challan against the accused. Muhammad Anwar F.C. (P.W.2) is the marginal witness to the recovery memo. Muhammad Anghar Khan, S.I. (P.W.3) - registered the case on receipt of the Murasila Exh.P.A./1, while Fazal Karim Khan, A.S.I. (P.W.4) investigated the case.
The learned Sessions Judge after close of the prosecution case examined the accused under section 342, Cr.P.C. He denied the allegations of the prosecution. The accused did not wish to produce any evidence in defense nor elected to be examined as his own witness under section 340(2), Cr.P.C. The trial Court after hearing the arguments convicted and sentenced the accused as stated above.
4. I have heard the learned counsel for the accused-appellant and the learned State Counsel. I have also carefully perused the record. The learned counsel for the appellant strenuously argued that the seized heroin was taken into possession on 15-7-1991 which was received by the Chemical Examiner on 17-8-1991 and returned the result on 21-8-1991. The delay in sending the sample to the Chemical Examiner casts a thick cloud over the genuineness of the report. Further that only one gram was sent to the Expert out of 15 "Puris" but all the material was not amalgamated together. He lastly argued that the place of occurrence is a thickly populated area but no one from the public was asked to associate the recovery. On the other hand the learned counsel for the State supported the judgment of the learned trial Court by stating that the accused-appellant was found in possession of 15 grams of heroin powder and the witnesses to the recovery memo. Have fully supported the prosecution version.
5. The objection of the learned counsel for the appellant that no public witness was asked to join the recovery would be of no help in that the police witnesses are as good as public witnesses and their testimony cannot be brushed aside merely on the ground that they are police personnel when there is nothing that they have any axe of their own to grind against the appellant. According to the prosecution evidence 15 Puris each containing one gram heroin were recovered from the possession of the accused-appellant but only one Puri A weighing one gram heroin was sent to the Chemical Examiner for analysis and according to the report of the Expert it was containing heroin.
There is no evidence even to suggest that the other 14 Puris allegedly containing heroin were amalgamated with the one sent to the Chemical Examiner, and thereafter one gram was separated from the whole lot. The prosecution has not properly handled this case. The sending of sample for analysis almost with one month delay is yet another lapse on their part. However, be that as it may be, Puri weighing one gram heroin was reported to be heroin. This being the case the accused-appellant can be punished for keeping one gram of heroin. It cannot, therefore, be said that the remaining 14 packets which were not sent for analysis also contained heroin. In this view of the matter I find that the sentence of two years with stripes and fine is quite harsh and needs interference.
6. Resultantly, while maintaining the conviction of the appellant, reduce the sentence already undergone by him. The sentence of stripes is set aside and the appellant is also exonerated of the fine imposed upon him. The appeal is thus partly accepted.
Sentence reduced.