' This appeal is directed against the judgment dated 27-10-1998 passed by Sessions Judge, Nushki whereby the appellant has been convicted under Article 3 of the Prohibition (Enforcement of Hadd)
Order, 1979 and sentenced to undergo R.1 for four years and a fine of Rs,2,000 or in default whereof to further undergo S.I. For two months. Benefit of section 382-B, Cr.P.0 has also been extended to him.
2. The facts, in brief, are that on 7-8-1998 Mini-bus bearing registration No,QAH 9618, which was on its way from Quetta to. Nushki, was intercepted by police, It was checked and thoroughly searched and on suspicion a basket lying therein, which apparently contained potatoes and onions, was taken off. The basket was accordingly checked and in consequence a polythene bag containing 6 kilograms "Charm" was recovered therefrom. On inquiry it transpired that the said basket at the relevant time was being carried by the present appellant, therefore, he too, was brought down. The recovered "Charas" after taking out sample for sending to the Chemical Examiner, under a sealed cover, was seized and sealed on the spot. Appellant was arrested. Investigation was carried out and on completion thereof, the appellant was challaned to the Court for trial.
3. Charge was accordingly framed to which the accused/appellant pleaded not guilty and claimed trial.
4. At, trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/ appellant produced six witnesses, in all. P.W.1 Najeeb Ullah is conductor of the minibus. He deposed that the basket in question at the relevant time was being carried by the appellant. P.W.2 Misry Khan is a marginal witness of recovery memo. Exh.P/2-A. Syed Abdulah is the Chemical Expert. He produced in Court certificate Exh.P/3-A. P.W.4 Muhammad Ali is an eye witness of the occurrence and the complainant. He at the trial reiterated the version contained in the F.I.R.
P.W.5 Muhammad Ali, Judicial Magistrate, Nushki had recorded the confessional statement Exh.P/5-A, of the appellant. P.W.6 Haji Safar Khan is the Investigating Officer.
5. On the completion of prosecution evidence the accused/appellant was examined under Section 342 as well as 340(2), Cr.P.C. In his statements he denied the charge and pleaded innocence. He also produced two defence witnesses namely Zainudin, D.W.1 and Fateh Muhammad D.W2.
6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellant and awarded punishment as mentioned in the opening para hereof.
6. I have heard Mr. M. Salibeen Mughal, Advocate, learned counsel for the appellant and Qari Abdul Rashid, Advocate, learned counsel for the State and have also perused the entire record with their help.
7. Mr.M.Saliheen Mughal, Advocate, learned counsel for the appellant after having gone through the evidence made some submissions, but then decided not to challenge conviction of the appellant.
Instead, he prayed for reduction in the sentence of imprisonment on the ground that the appellant was the first offender, an aged man of 52 years and sole bread winner of a poor family, which in his absence has been subjected to poverty, therefore, a lenient view may be taken in the matter of sentence.
8. Qari Abdul Rashid, Advocate, learned counsel for the State has neither controverted the above contentions raised by the learned counsel for the appellant nor has he any objection in case moderate reduction in the sentence is made.
9. Notwithstanding the fact that Mr. M. Saliheen Mughal, Advocate, learned counsel for the appellant has not challenged the conviction of the appellant, I have considered the merits of the instant case, in the light of the evidence on record. I am convinced that the learned lower Court has properly appreciated the evidence and has drawn correct conclusions,. As such, no interference is called for.
10. However, keeping in view the submissions made by the learned counsel for the parties and facts of the case, I, while maintaining conviction of the appellant under Article 3 of the Prohibition Order, 1979, am inclined' to reduce his sentence from four years' R.I. To that of three years' R.I. With no change in the sentence of fine or quantum of imprisonment in default thereof. Benefit of section 382-B, Cr.P.C. Shall remain intact.
' With this modification, in the sentence the appeal is dismissed.