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Criminal Appeal No.41/I of 1987, decided on 14th April;1987.
---Art.3--Charas recovered from shirt pocket of accused while he was travelling in a pick up--No evidence available to show that accused was a smuggler or a dealer or a transporter of Charas on hire or otherwise--In absence of his antecedents, accused, held, could not be said to be guilty of transporting Charas--Only recovery of Charas from accused having been proved for which, accused could be convicted under Art.4 of Prohibition Order--Accused first offender and had already undergone sentence of twenty-two days--Conviction converted from Art.3 to Art.4 of Prohibition Order and sentence reduced to already undergone.
Malik Rab Nawaz Noon for Appellant.
Muhammad Aslam Uns for the State.
Date of hearing: 14th April, 1987.
.--Ashfaq Hussain son of Ghulam Hussain, resident of Daud Khel, district Mianwali, was convicted by the Magistrate with Section 30 powers, Mianwali, on 28-2-1987, under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 who sentenced him to undergo rigorous imprisonment for three years and to a fine of Rs.5,000 or in default of its payment to further suffer rigorous imprisonment for three months. The convict has filed this appeal against his conviction and sentences.
2. On receipt of secret information, Tariq Nia2i, Excise Inspector, organized a raid party comprising of himself his staff and police and reached Railway Crossing on Kala Bagh Road. After sometime a Datsun registration No.2184-JMA appeared which was stopped on the indication of informer and the appellant sitting by the side of driver was subjected to personal search upon which charas weighing 125 grams was recovered from the right side pocket of shirt of the appellant. A sample parcel of ten grams was prepared and remaining charas was sealed into parcels. On written report of Tariq Niazi, sent at 11.30 p.m. on 26-12-1984 formal first information report was registered at Police Station, Saddar, Mianwali on the same day at 24 hours. After completion of investigation police challaned the appellant in Court.
3. At the trial, prosecution examined five witnesses in all. Muhammad Sadiq (P.W.1), S.H.O., Mehr Muhammad (P.W.2), Constable Excise Department and Tariq Niazi (P.W.4), Inspector Excise, proved recovery of charas from the appellant. Feroz Khan (P.W.3), Head Constable, had registered the formal first information report and had also kept sealed parcels in Malkhana. Amir Abdullah (P.W.5), Foot Constable, took the sample parcels and delivered it in the Office of Chemical Examiner. The report of Chemical Examiner showing that sample parcel contained charas, was tendered in evidence.
4. The appellant denied the charges. He stated that he was sick and was going to see the doctor at Mianwali when police stopped him and wasted his time which resulted in protest of the appellant which annoyed the police who falsely involve him and the entire police proceedings were fake. He made a similar statement on solemn affirmation. No other evidence was produced in defence.
5. It was argued on behalf of the appellant that the prosecution had failed to make out its case against the appellant under Article 3
of the Prohibition (Enforcement of Hadd) Order, 1979 and it was a case of simple possession. The appellant was found travelling by Datsun Pick Up bearing registration No.JMA-2184 a seat by the side of driver but he was taken out of it and in :, personal search 125 grams of charas was recovered from the pock of his shirt. There is no evidence that appellant was a smuggler a dealer, or a transporter of charas on hire or otherwise. In ti absence of his antecedents the appellant could not be held guilty transporting charas. We find that recovery of charas z om the aprnll. .t was proved for which he could be convicted under Article 4 of t , Prohibition (Enforcement of Hadd) Order, 1979. The appellant was possession of a quantity of 125 grams of charas. He is ztpJed to oe first offender -and has already undergone sentence of about 22 day,, In the circumstances of this case we consider it proper to redo, sentence of the appellant.
6. For the above reasons, the conviction of appellant is convert to under Article of the, Prohibition (Enforcement of Hadd) Order 1979 and his sentence is reduced to already undergone. He shall the amount of fine awarded by the trial Court within one month fry the date of this order otherwise the appellant shall surrender serve the sentence in lieu of fine.
M. Y.H./384/F.Sh.C. Appeal partly accepter
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