1. This jail criminal appeal filed by Jumma Khan son of Muhsin Khan resident of Kalam, Swat, is directed against the judgment dated 17-7-1996 passed by the learned Sessions Judge, Kohat, whereby he has convicted him under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter called as the said order, and sentenced him to 8 years R.I., whipping numbering 10 stripes and a fine of Rs,10,000 or in default of payment of fine further two years R.I. He has also convicted him under Article 4 of the said order and sentenced to suffer 8 years R.I., whipping numbering 10 stripes and a fine of Rs,10,000 or in default of payment of fine further two years R.I. The substantive sentences of imprisonment awarded to him are ordered to run concurrently. The benefit of section 382-B, Cr.P.C., has also extended to him.
2. Briefly stated the case of prosecution as narrated in Exh.P.A./1 recorded by Mir Chaman Khan S.H.O. on 14-1-1995 is to the effect that while he was conducting Nakabandi alongwith Ghulam Jan A.S.I., Hakim Khan H.C., Ali Abbas H.C. and other constables in the area of Nasim Petrol Pump, Kohat Bainu Road, he deboarded the appellant/accused, who was travelling in a bus on suspicion. On his personal search two plastic envelopes containing 1 Kg. of heroin were recovered from his possession tied with his leg. One gram was separated as a sample and the remaining contraband was also sealed into separate parcel. After completion of necessary investigation he was challaned to face the trial.
2. 3.At the trial the prosecution examined three witnesses in all. P.W.1 is Abbas Khan H.C. He recorded formal F.I.R. Exh.P.A. on receipt of Murasila Exh.P.A./1. P.W.2 is Hakim Khan L.H.C. He was a member of police party who had conducted Nakabandi at the place of occurrence. He is also a marginal witness to recovery memo. Exh.P.C. vide which the said contraband was taken into possession.
3. P.W.3 is Mir Chaman S.H.O. He is the complainant/I.O. who had conducted Nakabandi near Nasim Petrol Pump Kohat Bannu Road alognwith other police officials. He reiterated his statement as mentioend hereinabove. The report of Chemical Examiner Exh.P.E. about the samples reveals that it was heroin.
4. 4.The appellant/accused made a statement under section 342, Cr.P.C. wherein he denied the allegation and pleaded innocent. He stated that the P.Ws. are police officials and have deposed falsely for the success of their case. He produced the statement of Ali Baz accused recorded in a case against him in the same trial Court. He also made statement on oath which is reproduced hereinunder: -- "On the day of occurrence I was travelling in a bus from Peshawar to Karachi. Two other persons were also sitting with me on the same seat. When we reached near Petrol Pump Lachi, the bus was stopped by the police. In the meanwhile one person sitting alongwith me deboarded from the bus at once. During the search I alongwith another passenger were ordered to come down from the bus. The police during the search recovered some bags from beneath the seat. The police tried to apprehend the accused who had deboarded from the bus but they failed to arrest that accused.
5. The police after failing to arrest the real culprit, I alongwith another passenger whose name is Ali Baz was brought to the police station. The police demanded Rs,10,000 from us. As we had no money, therefore we refused. Then the police concocted this case against us. I and Ali Baz who is also facing trial in this Court are innocent and nothing was recovered from our possession. I produced the attested copy of statement of Ali Baz recorded on Oath in case F.I.R. No.9 which is Exh.D-1."
6. 5.I have heard the learned counsel for the parties and have perused the record with their assistance. It transpires from the record that the case of prosecution mainly rests on the statement of P.W.2 Hakim Khan L.H.C. who is a marginal witness to recovery memo. Exh.P.C. and the statement of P.W.3 Mir Chaman Khan S.H.O. who is complainant and also Investigating Officer in this case.
7. Their statements given on oath are fully consistent in material particulars and are confidence- inspiring. Both have deposed that one thousand grams of heroin contained in two plastic envelopes were recovered from the possession of appellant. Although the appellant has taken the plea that some bags were recovered from beneath the seat by the police during search, the suggestion put to P.Ws. in this respect has been denied by them. Both the P. Ws. have deposed that the said heroin was recovered from the possession of the appellant/accused. P.W.3 has clearly stated that the two plastic bags containing one thousand grams of heroin were tied with his right leg which were taken into possession vide memo. Since the recovery of said contraband is admitted, its non-exhibition before the Court is immaterial. The statement made by the appellant/accused on oath does not inspire confidence. It is strange that he was travelling in a bus from Peshawar to Karachi but he and his co-accused Ali Baz who was also travelling alongwith him had no luggage with them. Although appellant/accused has stated that Ali Baz was not known to him, the learned Trial Court has rightly observed that the appellant/accuced as well as the said Ali Baz are the residents of Tangi District Charsadda. The quantity recovered from his possession is very huge and it cannot be falsely planted against him without any rhyme or reason. However, since the said contraband has been recovered from his possession, his conviction and sentences under Article 3 of the said order are not maintainable. Consequently, I set aside his conviction and sentences under Article 3 of the said order and acquit him of the charge thereunder. However, I maintain his conviction under Article 4 of the said Order and sentence of his imprisonment and fine as awarded to him by the learned Trial Court. The sentence of whipping is, however, set aside as no more required after the promulgation of Act No.VII of 1996. The benefit of section 382-B, Cr.P.C., extended by the learned Trial Court shall remain intact.