' This jail appeal is directed against the judgment, dated 16-1-2002 passed by the learned Sessions Judge, Bannu, whereby the appellant Miraj-ud-Din was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Prohibition Order) and was sentenced to undergo R.I. For five years and fine of Rs,2,000. He was further convicted under Article 4 of the Prohibition Order and was sentenced to two years' R.I. With a fine of Rs,1,000. In default of total fine of Rs,3,000 the appellant shall further suffer S.I. For three months. Both the sentences were ordered to run concurrently. The appellant was however, given the benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the case as gleaned from the F.I.R. Recorded at Police Station Baka Khel Bannu on the complaint sent by Musanif Shah, A.S.-I. Baka Khel are that on 5-2-2001 at 5-00 p.m. He along with police party was present on Bannu Miranshah Road in front of Police Station Baka Khel in connection with checking, of smugglers when a Flying Coach bearing Registration No,1265-BUC coming from Miranshah side was stopped for effecting its search, during the course of which he deboarded the accused, who was found sitting on the hind/rear seat of the driver in a suspicious manner. His personal search was thereafter conducted wherefrom 25 plastic envelopes containing Charas was recovered from inside his waiste coat. The same was mixed and weighed, which came to 3000 grams in all. Four grams of Charas was however, separated, and sealed for its dispatch to Chemical Examiner, while the remaining quantity was also sealed into another parcel and was kept in safe custody. The accused along with the case property and a written complaint was then sent to Police Station Baka Khel Bannu through constable Shah Zar Ali, where the case was registered and the investigation was entrusted to the said A.S.-I., who prepared the site plan of the place of occurrence, recorded the statements of the recovery witnesses and after completing the various formalities of investigation recommended the accused to be challaned to Court to face his trial.
3. The prosecution has produced as many as four witnesses to prove the guilt of the accused- appellant at the trial.
' Said Nawaz, S.H.O. Appeared as P.W.1 and deposed about submission of complete challan against the accused in Court after completion of investigation.
' Sarfraz Khan Head Constable appeared as P.W.2 and stated that he was a marginal witness to recovery memo. Exh.P.W.2/1 vide which the I.O. Had taken into possession 25 envelopes containing Charas recovered from the leather waiste coat of accused Mirajud Din, out of which four grams Charas was separated for its transmission to the office of Chemical Examiner, while the remaining quantity was sealed separately.
' A.S.-I. Hazrat Ali Shah appeared as P.W.3 and stated that he had registered the F.I.R. Exh.P.A. On the basis of Murasila brought by Shahzar Ali constable.
' A.S.-I. Musanif Shah appeared as P.W.4 and reiterated the contents of the F.I.R. And further deposed about the completion of the investigation conducted by him against the appellant including his arrest and recovery of the Charas from his possession. He while under cross- examination denied the suggestion that Chpas was recovered from one Afghan Refugee, who was let of and the accused was falsely implicated in the present case, as he had quarrelled with the police party.
' The prosecution evidence was then closed and the statement of the accused under section 342, Cr.P.C. Was recorded. Wherein he denied all the allegations and professed innocence. In reply to a.
Question as to, "what is your statement and why are you charged?", he replied as under:-- "I am innocent and falsely charged. In fact I was coming to Bannu for labouring from Parachinar via Mir Ali and near the police station the vehicle was stopped and so many passengers were alighted from the Flying Coach. On account of my altercation I was entangled in the present case. I altercated with the Investigating Officer that for nothing he had wasted more than an hour in checking of the vehicle but could not find any contraband. On this the Investigating Officer was irritated and got furious and I was implicated."
' He, however,' opted to appear as a witness of his own under section 340(2), Cr.P.C. And refused to produce defence evidence as he was from Parachinar Kurram Agency and being helpless person, no one was known to him in Bannu.
' The accused thereafter appeared as witness of his own and had made similar statement on oath, as is reproduced above and closed his defence.
5. After the conclusion of the trial, the accused was convicted and sentenced as stated above and hence this appeal.
6. I have heard the learned counsel for the parties and have perused the record carefully with their assistance.
7. Learned counsel for the appellant has straightaway conceded that there being no factual controversies in the case, he would not press this appeal on merits, but he has taken strong exception to the conviction of the appellant simultaneously under Articles 3 and 4 of the Prohibition Order, as the same was not permissible in the light of the observations of the Honourable Supreme Court of Pakistan in the case of Umer Said and others v. The State PLD 1994 SC 255 wherein it was held that:-- "conviction of a person both under Articles 3 and 4 is not proper as importing, exporting, manufacturing, bottling or selling any intoxicant includes its possession also."
' Learned counsel for the appellant has also vigorously prayed for reduction in the sentence of the appellant, who was a previous non-convict and was the only bread-earner of the family consisting of small children.
8. Learned counsel for the State on the other hand has frankly conceded that the conviction and sentence of the appellant under Article 4 of the Prohibition Order, was uncalled for, and the sentence awarded under Article 3 was excessive.
9. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also gone through the case-law cited at the Bar.
10. I find that the deposition made by A.S.:I. Musanif Shah P.W.4 being coherent and consistent was worth reliance, as it had carried the sanctity of having been made by an independent witness, who had no animus at all against the appellant so as to falsely implicate him in this crime. Moreover, the testimony furnished by this witness stands duly corroborated by the evidence rendered by H.C.
Sarfraz Khan P.W.2 who had duly testified the recovery memo. Of Charas Exh.P.W.2/1 to be bearing his signatures.
' Besides this, the case of the prosecution was further corroborated by the positive report Exh.P.W.4/2 of the Chemical Examiner revealing therein that the sample sent to the said office contained Charas.
11. I have duly considered the stance of the appellant, who has pleaded his substitution for a real culprit, who was let off by the police. This phenomenon being rare, would not be of any help to the accused, who being a stranger, was not even known to the police party. I, therefore, discard the same as false and frivolous.
12. In this view of the matter I am of the considered view that the evidence thus, produced by the prosecution inspired confidence and was sufficient to base the conviction of the appellant under Article 3 of the Prohibition Order, as he was found transporting the heroin by travelling in the Flying Coach.
13. So far the conviction and sentence under Article 4 of the Prohibition Order is concerned, the same being redundant, in view of the observations of the Honourable Supreme Court of Pakistan in the case cited (supra) is hereby set aside.
14. Adverting to the other contention of the learned counsel for the appellant regarding the reduction in the sentence of the appellant, I feel that it also required interference by this Court. The appellant is stated to be the first offender of the crime and is the sole bread-earner of the poor family, as such he deserved leniency in the sentence.
15. I, therefore, while maintaining his conviction under Article 3 of the Prohibition Order reduce his sentence from 5 years' R.I. To 3 years' with fine of Rs,2,000 in default to undergo S.I. For 2 months.
Order accordingly.
16. The appellant shall however, be entitled to the benefit of section 382-B, Cr.P.C.
' Resultantly this appeal stands dismissed with the above modification in the conviction and sentence. accordingly.