This appeal filed by Shamroze Khan son of Zaman Khan and Hakam Ali son of Khalil-ur-Rehman, both residents of Malook Karona, Mohmand Agency is directed against the judgment dated 7-5- 1996 passed by learned Additional Sessions Judge, Rawalpindi whereby both of them have been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the said Order, and sentenced each to undergo seven years R.I., ten stripes each and a fine of Rs,50,000 or in default of payment of fine further one year S.I. each. All the sentences are ordered to run concurrently and the benefit of section 382-B, Cr.P.C. has been extended to them.
2. I have heard the learned counsel for the parties and have perused the record with their assistance. At the outset learned counsel for the appellants submitted that he does not press the appeal on merits, however, keeping in view the facts that both the appellants are very poor one being a driver and the other conductor of Truck No,MRA-4055 wherefrom the contraband was recovered as well as fact that they are previous non-convicts, he only prays for reduction in the sentence of fine. He also submitted that conviction of the appellants under Article 4 of the said Order is not warranted in circumstances of the case. Learned counsel for the State also conceded in this respect as well as for reduction in the sentence of fine.
3.Since the recovery was effected from the said truck and transportation also includes possession, the conviction of appellants under Article 4 of the said Order is not sustainable and is, therefore, set aside. Both the appellant are acquitted of the charge thereunder. In view of what is submitted by learned counsel for the appellants and agreed to by the learned counsel for the State, while maintaining conviction of the appellants under Article 3 of the said order, I reduce the sentence of fine to Rs,25,000 each or in default six months S.I. each. There shall be no change in the sentence of their imprisonment of seven years each which is maintained. The sentence of whipping is set aside as no more legally required after the promulgation of Act No,VII of 1996. The benefit of section 382- B, Cr.P.C. extended by the trial Court shall remain intact.
4. With this modification in the conviction and sentences the appeal is partially allowed.