' Faqir Muhammad son of Muhammad Noor resident of Muhallah Nazarabad/Gharibabad, Inqilab Road, Peshawar was convicted by the Additional Sessions Judge, Peshawar on 4-7-1996 under Article 4 of Prohibition (Enforcement of Hadd) Ordinance, 1979 for possessing 20 grams of heroin and sentenced to two years' R.I., 3 stripes and a fine of Rs,1,000 in default whereof to suffer 3 months'
S.I. The convict has preferred the present appeal against his conviction and sentence.
2. The prosecution case is that on 15-7-1994, while Abdul Malik Khan, S.-I., Hazrat Shah, S.-I. And 5 constables of Police Station Badaber were on patrol duty in the area when they noticed a person running away in suspicious circumstances. This alerted the police party. They followed the suspicious person, overpowered him and on his search found one pistol with 6 live cartridges and 20 small packets (Puries) of heroin powder. The person, who disclosed his name to be Faqir Muhammad, was arrested. The heroin was weighed and found to be 20 grams. One gram was separated, sealed and sent to the Forensic Science Laboratory for Chemical Examination. The articles recovered from the accused were taken into possession vide memo. Exh.P.C. And Exh.P.C./1.
Abdul Malik Khan, S.-I., who was investigating the case then drafted the Murasila Exh.P.A./1 and despatched it to Police Station Badaber for registration of a case. A case, F.I.R. No,380 Exh.P.A., was duly registered. After receipt of the report of the Chemical Examiner Exh.P.W.3/2, the case was put in the Court of Additional Sessions Judge, Peshawar. The accused was summoned, charge was framed, to which the accused pleaded not guilty and chose to face trial. To prove its case, the prosecution produced 3 witnesses at the trial, namely, Muhammad Akbar Khan, S.-I., who registered the case, Hazrat Shah, S.-I. One of the member of the police party and Abdul Malik Khan, the Investigating Officer. In his statement recorded under section 342, Cr.P.C. The accused totally denied the occurrence.
3. The learned counsel representing the appellant besides pointing to certain discrepancies in the evidence advanced mainly two-fold arguments. Firstly, he submitted that the recovery was doubtful as no member of the public was associated with it, although the appellant was allegedly apprehended in a crowded locality. Secondly, it was argued that the sample for chemical examination was taken from only one "Puri" and, therefore, it cannot be said that all the packets recovered contained heroin.
4. The learned Assistant Advocate-General responded that since the search was not from a public place, it was not essential to associate member of the public with a recovery. Referring to the evidence, the learned counsel contended that all the Puries were not in fact amalgamated before the sample was separated.
5. As far the first legal argument is concerned, undoubtedly, the appellant was arrested from a street and not from any place. The provisions of section 103, Cr.P.C. Which requires recovery in the presence of two respectables from the locality is applicable only when the recovery is effected from a place. That provision does not apply when the recovery is made from the person in a street.
Additionally, the petitioner was running away and thus it would not have been practical for the police to have procured recovery witnesses from the public. As regards the second question, one only has to read the statement of P.W.3, the Investigating Officer. In his examination-in-chief he had stated that he separated one gram of heroin and sent it to the Forensic Science Laboratory and sealed the remaining quantity in separate parcel. In cross-examination, in response to a question he clarified "the contents of the Puries were amalgamated after the removal of wrappers and then it was weighed". Taking the two assertions together, it clearly establishes that the heroin in all the Puries were first amalgamated and then one gram of heroin separated for chemical examination. Thus, irrespective of whatever the merits of the contention regarding non- amalgamation of the Puries, the fact remains that the evidence establishes amalgamation.
6. As to the quality of evidence, the defence has not been able to make any dent in the testimony of the prosecution witnesses. The two eye-witnesses, P.W.2 and P.W.3 are materially consistent about the circumstances in which the appellant was arrested and the heroin recovered. The prosecution story narrated in the F.I.R. Has been repeated by both the witnesses with no inconsistency. The C Chemical Examiner report also shows that the powder recovered was heroin.
In such circumstances, it is difficult not to believe the prosecution story. Thus, the conviction of the appellant has to be maintained as the prosecution has been able to prove its case against the appellant beyond doubt. However, some leniency is required in the sentence as the appellant is a young man with no record of previous conviction. He has already spent about five months in prison as an undertrial prisoner.
7. For the foregoing reasons, the appeal is partially allowed in the terms that the conviction of the appellant is maintained whereas the sentence of imprisonment is reduced to that already undergone but the sentences of stripes and fine shall remain intact.