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Criminal Petition for Special Leave to Appeal No. 363 of 1982, decided on 8th December, 1982.

(Against the judgment of the Lahore High Court, Lahore dated 29th September, 1982 passed in Criminal Revision No. 507 of 1982).

‑‑Ss. 3 & 4 ‑Sentence ‑Charas found in possession of accused ‑Offence falls under S. 4 and not under S. 3‑Accused having been guilty of offence under S. 4 imposing lesser punishment, as such sentence reduced but fine enhanced from Rs. 1,000 to Rs. 5,000 in circumstances.‑‑[Sentence].

Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Khalil Ramdey, Asstt. A.‑G. for the State.

Date of hearing : 8th December, 1982.

.‑Faizullah son of Allah Ditta, peti tioner, was tried for having been found in possession of 1,700 grams of charas which he had kept in a room of his house. He was convicted by the Sub‑Divisional Magistrate, Jhang under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to 2 years R. I. and a fine of Rs. 1,000 or in default to undergo further R. 1. for three months.

Faizullah petitioner filed an appeal which was dismissed on 11th August, 1982. He then filed a criminal revision before the High Court under section 439‑Cr. P. C., which also met the same fate and his conviction and sentence were maintained.

Feeling aggrieved he filed the present petition for Leave to Appeal.

2. Before us the learned counsel contended that the offence of being found in possession of charay is not covered by section 3 of the Order, which reads as follows :‑

"S. 3. Prohibition or manufacture, etc. of intoxicants.‑‑Whoever‑

(a) Imports exports, transports, manufactures or processes any intoxicant ; or

(b) bottles any intoxicant ; or

(c) sells or serves any intoxicant ; or

(d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession ; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceed ing thirty stripes, and shall also be liable to fine."

and he submitted that from the facts proved on the record the offence proved against the petitioner fell under section 4 of the said Order, which reads as under :‑

‑Whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine Provided that nothing contained in this Article shall apply to a Non- Muslim foreigner or to a non‑Muslim citizen of Pakistan who keeps in his custody at or about the time of ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the pur pose of using it as a part of such ceremony."

We issued notice to the State. The learned counsel for the State con ceded that the offence of being found in possession of an intoxicant is not covered by section 3, for an offence under which section the maximum punishment is 5 years' R. I. and that it constitutes only an offence under section 4 of the said Order, the maximum punishment for which is 2 years R. I. only.

3. After hearing the learned State counsel we converted the petition into appeal and proceeded to dispose it of accordingly.

4. The learned counsel for the petitioner submitted that the petitioner, who is guilty only of the lesser offence under section 4, has been awarded a sentence of two years' R. I. which is the maximum under that section on the incorrect assumption that the offence fell under section 3, as such his sentence of imprisonment may be reduced.

This seems to be a fair request but we feel that in view of the nature of the offence, the sentence of fine imposed on him should enhanced. We, therefore, asked him as to why the fine should not beg enhanced to Rs. 5 000.

5. After hearing the petitioner's learned counsel on the question of sentence we agree that the sentence of imprisonment awarded to him is excessive and as such reduce it to one. year's R. 1. But we are of the view that in cases of this nature imposition of a heavier fine would serve the ends of justice better, and shall prove more effective as deterrent. We accordingly enhance the fine from Rs. 1,000 to Rs. 5,000. In default of payment of fine he shall further undergo months' R. I.

Sentence of imprisonment reduced fine enhanced.

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