MUHAMMAD ASHRAF Versus THE STATE

1. JUSTICE MUHAMMAD AFZAL ZULLAH, CHAIRMAN.‑------ The petition for leave tot appeal filed by Muhammad Ashraf appellant was converted into an appeal for consideration of the question whether on the day he committed the offences under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, i (No. 4 of 1979), whether he could be awarded sentence of rigorous imprison ‑1 of 10 years' R. I. and if that sentence was illegal whether when imposing the legal sentence he would be entitled to any leniency.

2. The appellant has been found guilty for transporting and keeping in possession a substantial quantity of charas.

3. The learned counsel for the appellant did not challenge the conviction under Articles 3 and 4 of the Order. He, however, contended that on the day i. e. 27th July, 1982 when the offence was committed the amendment in Articles 3 and 4 regarding the imposition of enhanced sentence had not been made, therefore, when convicting the petitioner on 4‑12‑1984 the sentence enhanced through amendment dated 26‑12‑1983, could not have been awarded. The original Articles 3 and 4 as also the amended Articles are reproduced below in a comparative chart:

4. Original Articles 3 and 4

5. Amended Articles 3 and 4 by President's Order No. XII of 1983 dated 26‑12‑1983

3. Prohibition of manufacture etc. of intoxicants :

3. Prohibition of manufacture, etc. of intoxicants

6. Whoever:

(a) imports, exports, transports, manufactures or intoxicant ; or

(1) Subject to the provision: of clause

(b) bottles any intoxicant ; or

(2) Whoever :‑

(c) sells or serves any intoxicant ; or

(a) imports, exports, transports. manufactures or possesses are into xicant ; or

(d) allows any of the acts aforesaid upon premises owned by him of his immediate possession ;

(b) bottles any intoxicant ; or

7. Shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not execeding thirty stripes, and shall also be liable to fine.

(c) sells or serves any intoxicant ; or

(d) allows any of the acts afore said upon premises owned by him or his immediate possession ;

(2) Whoever :

4. Owning or possessing intoxicant :

8. 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 ;

9. Provided that nothing contained in this Article shall apply to 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 purpose of using it as a part of such ceremony."

(i) imports, exports, transports, manufactures, or traffics in, opium or coca leaf or opium or coca derivatives ; or

(ii) finances the import, export, transport, manufacture, or traffi cking of, opium or coca leaf or opium or coca derivatives shall be punishable with imprison ment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall be liable to fine.

4. Owning or possessing intoxicant 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

10. Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, raw opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."

11. Learned counsel for the State has straightaway conceded that the offence having been committed on 27 7‑1982 and the amendment regarding imposition of higher sentence was made subsequent thereto. Therefore. the appeal may be accepted by imposition of the maximum sentence awar dable under the unamended law. He argued, that is so far as the unamend ed law and the sentence awarded thereunder is concerned, the same being insignificant in view of the enormity of the offence, the appellant should be awarded the maximum sentence.

12. After the concession by the learned counsel for the State it is obvious that the sentences awarded under Articles 3 and 4 by the trial Court to the appellant and affirmed by the Federal Shariat Court are to be set aside.

13. The next question is as to what should be the proper sentence in thin case it cannot be ignored that the question of sentence essentially appertains to the judgment and discretion of the trial Court and has to be scrutinised by the First Appellate Court. Though, in proper cases of departure from any law, principle or otherwise of unjust sentences, this Court also in rare, cases examines the question of sentence.

14. In this case when the learned trial Judge assumed the highest sentence under Article 3 to be imprisonment for life, he thought it fit to impose a sentence of 10 years' R. I. Same was his approach regarding the sentence under Article 4.

15. As noted above, maximum sentences of rigorous imprisonment under these Articles which could have been awarded to the appellant vis‑a‑vis the date of his offence could be 5 years and 2 years respectively. Therefore. in the circumstances of this case, when under a wrong assumption the trial Court did not award the maximum sentence in accordance with the amended law, it would not be fair at this stage to award to the appellant the] maximum sentences of rigorous imprisonment under the original Articles.

16. Keeping in view all that has been stated above, we deem it proper to award to the appellant the sentences of rigorous imprisonment of 4 years' R. I. under Article 3 and 1 year's R. I. under Article 4. Both the sentences shall run consecutively as originally ordered by the learned trial Court. All other sentences awarded by the trial Court and affirmed by the Federal Shariat Court are maintained.

17. With the foregoing modification in the sentence of rigorous imprison ment only, this appeal is partly allowed.

18. M.B.A. Appeal partly allowed.