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Criminal Appeal No. J‑2Sl of 1976, decided on 9th Februray1977.
‑‑ S. 43(3)‑Sentence‑Quantum of‑--Mashir of recovery of contra band charas a retired Police Head-Constable‑Sentence of one year's R. I. reduced to period " already ' und6gone" in circumstances. [Sentence].
Appellant through Jail.
Jalaluddin Balouch for the State.
Date of hearing : 9th February 1977.
The appellant was convicted by learned Additional Sessions Judge, Jacobabad, for an offence under section 43(3) of the Abkari Act, and sentenced to R. I. for one year, and a fine of Rs. 100 or, in default, to suffer R. I. for two months more. He has come in appeal through the Jail authorities.
2. The prosecution story, in brief, is that, on the 20th of June 1974, some spy information was received by the then Excise Inspector, Akhtar Ali Bhutto that the appellant was on the lookout to sell charas. He had taken two mashirs with himself, and raided the hotel of the appellant. Contraband charas was secured from the person of the appellant, and, when the hotel was searched, a big piece of charas was found lying under the bed. When it was weighed, it was found to be forty tolas. After due investigation, the case came to be challaned in Court.
3. The appellant in his statement at the trial denied the allegations made against him, and also examined a defence witness, by the name of Chutto, who had precious little to say, except that he knew the appellant as a labourer.
4. The prosecution to support of its case examined only Abdus Subhan, he mashir, and the statement of the then Excise Inspector, by the name of Akhtar Ali Bhutto, was brought on the record under section 33 of the Evidence Act, as, after his dismissal from service, his whereabouts were not to be found. A Process Server was examined in that context.
6. There is hardly any cross‑examination, worth the name, from the two witnesses, and the only question put was that the appellant had been falsely implicated. Under the circumstances, it cannot be said that any breaches have been made at all in the prosecution case. As referred to earlier, the defence witness had hardly any contribution to make one way, or the other. Under these circumstances, the finding of learned Additional Sessions Judge would not be open to challenge. However, I find that the mashir is a retired Head‑Constable, and bad appeared in another case, the appeal whereof was disposed of by me on 7th February 1977. I would, therefore, reduce the sentence of the appellant from R. I. of one year to the period already undergone by him. The fine imposed on him is also remitted.
6. The result, therefore, would be that the appellant would be release forthwith from custody, unless wanted in connection with some other case.
Order accordingly.
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