MANZOOR HUSSAIN Versus THE STATE

This appeal is directed against judgment, dated 23-11-2001, by Additional Sessions Judge, Multan; whereby learned trial Judge, convicted the appellant under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 and awarded sentences as follows:--

(a) Under Article 3 of the said Order R.I. for 5 years.

(b) Under Article 4 of the said Order. R.I. for 2 years.

He was also sentenced to pay fine of Rs.1,00,000 in default whereof to undergo S.I. for 6 months:

2. The facts leading to the passing of impugned judgment in this case, are as follows:-- ,

"Shamshad Ali, A.S.-I., was present at Adda Murali Wala, on patrol duty, alongwith Ali Ahmad, constable (P.W.1), and three other police constables on 12-12-1998. A source informed him that Manzoor Hussain, was selling Charas, at Adda Bhakal Bhairr. He went there alongwith other members of the raiding party and caught Manzoor Hussain, on the pointing by the Mukbar. On being asked he gave his name as Manzoor Hussain son of Muhammad Ramzan (appellant herein). He was holding a plastic made Gattu. The same was taken from him. On opening the same was found containing three kilograms of Charas. A.S.-I., removed l0 grams of Charas out of the same, for being sent to the Office of the Chemical Examiner. He prepared two separate parcels i.e. of the sample and of the remaining Charas. After completion of necessary investigation, he got the challan submitted to Court."

3. Statements of 4 P. Ws. were recorded at the trial.

Shamshad Ali, A.S.-I: appeared as P.W.4. By and large, he repeated the same facts, which he had recorded in Exh.P.B. During cross-examination, he admitted that there were many shops at Adda Bhakal Bhairr. He admitted that he cannot investigate the cases registered under Article 9-C of C.N.S.C. He added that he can investigate the case registered under Prohibition (Enforcement of Hadd) Order, 1979. He admitted that accused during investigation had disclosed that the Charas belonged to Haji Fayyaz. He stated that he had not conducted any raid on said Haji Fayyaz. He denied the suggestion that he had arrested that Fayyaz and thereafter had released him in connivance with him. He denied the suggestion that accused had been challaned falsely and he had made a false statement.

4. Ali Ahmad, constable, appeared as P.W.1. He made statement in line with the statement made by Shamshad Ali A.S.-I. During cross examination, he also admitted that there were about 100 shops and houses at Adda Bhakal Bhairr. He stated that the place where secret information was received by them, was situated at a distance of two acres. He denied the suggestion that the parcel had been actually prepared at the police station. He denied the suggestion that at the time of raid, he was at the police station and he had made a false statement.

5. Atta Ullah constable, P.W.3 stated that the sample parcel entrusted to him by Allah Bakhsh, Muharrar on 28-12-1998, was deposited by him in the Office of the Chemical Examiner, Multan, on the same day.

6. Appellant during statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. In answer to the question, "Why this case against you and why the P.Ws. have deposed against you?", he stated as follows:--

"This is a false case and the police has shown a fake recovery upon me. The P. Ws. are police officials and they have deposed against me as they are constrained to do so, in the light of prosecution story and if they do not depose in the light of prosecution story then is there punishment under the rules from the dismissal from service. The report of Chemical Examiner seems to have been made by Assistant Chemical Examiner who is not authorized to analyze the same."

He neither produced any evidence in defence nor chose to make statement on oath under section 340(2), Cr.P.C.

7. Learned counsel for the appellant, after having gone through the evidence, contended, that there was no evidence on record, on the basis of which, appellant could have been convicted under Article 3 of Prohibition (Enforcement of Hadd) Order. However, he neither challenged the recovery of 3 kilograms of Charas from the accused nor challenged his conviction under Article 4 of the said Order.

Learned counsel for the State did not challenge the argument of the learned counsel for the appellant, about conviction of the appellant under Article 3 of the Prohibition (Enforcement of Hadd) Order. However, she defended the conviction under Article 4 of the said Order.

In this case, P.Ws.1 and 4 had deposed the ocular account. None of them had stated that they had seen the appellant selling or transporting Charas. No witness was examined at the trial to state that he had purchased Charas from the appellant on the day of occurrence. No cash was recovered from the appellant during personal search to consider that the said money may have been sale price of the Charas, sold by him. In the circumstances, conviction of the appellant under Article 3 of the said Order is not maintainable. The same is, therefore, set aside:

However, conviction of the appellant under Article 4 of the said Order is maintained, considering the consistent statements made by P.Ws.1 and.

4. There was no enmity of I the accused with any one A of them. In fact, no question in that regard, was, even, put to any one of them.

Apart from that learned counsel for the appellant, himself, had not challenged the conviction of the appellant under Article 4 of the said Order as well as sentence of R.I. for 2 years, on that count. The same are, therefore, maintained.

Considering the prayer made by the learned counsel for the appellant and other facts on record, I feel sentence of fine of RS. 1,00,O0 is excessive. The same is reduced to Rs.25,000 in default whereof, appellant shall undergo R.I. for nine months.

Benefit of section 382-B, Cr.P.C. shall be given.

H.B.T./132/FSC Appeal partly allowed.