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Criminal Revision No. 550 of 1963, decided on 15th November 1968.
S. 537(b) [as amended by Code of Criminal Procedure (West Pakistan Amendment) Act (XVII of 1964)]‑Finding, sentence or order passed by Court of competent jurisdiction‑Cannot be reversed or altered on appeal or revision on account of error in mode of trial including misjoinder of charges.
S. 439 read with Opium Act (I of 1878), S. 9‑Accused convicted under S. 9, Opium Act on 19‑12‑1962 and their appeal dismissed on 17‑6‑1963-- Revision petition being heard after more than five years‑Court while maintaining conviction, considered remand of accused to jail for un-expired period of sentence not proper‑Sentence of six months' R. I. reduced to period already undergone (14 days).
Aftab Farrukh for Petitioners.
Malik Abdul Hamid for the State.
Muhammad Siddiq (35) and Muhammad Salim (31) sons of Muhammad Ismail, shopkeepers of Karkhana Bazar, Lakkar Mandi, Lyallpur, were charged under section 9 of the Opium Act (Act I of 1878) for being in possession of fifty tolas and sixty tolas of non‑excise opium (Exhs. P. 2 arid P. 1), respectively. Both the petitioners were tried by Malik Jahangir Khan, Magistrate 1st Class, Lyallpur, who convicted them under section 9 of the Opium Act and sentenced each of them to undergo six months' R. I. The opium recovered from them was ordered to be forfeited to the State after the expiry of the period of appeal or revision, if any. The two petitioners appealed to Mr. S. M. Ishfaq Ali, Sessions Judge, Layallpur, who by his judgment dated the 17th of June 1963, dismissed their al peal. The petitioners have come up in revision to this Court.
2. On the 26th of August 1961, Soofi Abdur Rehman, Excise Sub‑Inspector, Lyallpur (P. W. 1), on receipt of a secret information arranged a raid party, at about 12‑00 noon. The party consisted of Sub‑Inspector Police, Khan Iqbal Khan (P. W. 5), Habib Ullah, E. S. I., Malik Abbas, A. S. I. three foot‑constables and Rafiq and Faqir Muhammad P. Ws. They raided the house of the accused in Lakkar Mandi, Lyallpur. They searched the person of Muhammad Salim and recovered from each of his two dabs thirty tolas of non‑excise opium, in all sixty tolas. Muhammad Siddiq petitioner was also searched and fifty tolas of non‑excise opium was recovered from his right dab, Memos. Exhs. P. A. and P. B. were prepared to this effect.
3. The learned counsel for the petitioner did not contest the recovery of the non‑excise opium from each of the petitioners. He argued that the recovery of the non‑excise opium was separate and there could be no joint trial and that prejudice had been caused by this illegality by adopting a joint mode of trial under section 239, Cr. P. C. read with section 537, Cr. P. C. In view of the amendment of section 537, Cr. P. C. by West Pakistan Act, XVII of 1964; this argument of the learned counsel is untenable. By the amending Act, after clause (a) of section 537, Cr. P. C. the following clause (b) has been inserted :
"(b) of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges or"
Thus, under section 537, clause (b), to finding, sentence or order passed by the Court of competent jurisdiction, can be reversed or altered on appeal or revision on account of this error in the mode of trial including the misjoinder of charges. The amendment of procedural law has always retrospective effect.
4. In view of the above discussion, I maintain the convic tion of the two petitioners under section 9 of the Opium Act. The petitioners were convicted by the trial Court on the 19th of December 1962 and their appeal was dismissed on the 17th of June 1963. They were ordered to be released on bail by this Court on the 24th of June 1963. In this way, both the petitioners had suffered about fourteen days of their imprisonment. This revision petition is being heard after mire then five years and it will not be proper to remand the two petitioners to jail for the un-expired period of their sentence. I, therefore, reduce the, sentence of imprisonment of the two petitioners to that already undergone by them. Both the petitioners will also pay a fine of Rs. 150 each or in default of payment of this fine, one month's further R. I. each.
Order accordingly.
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