MULAZIM HUSSAIN Versus STATE

Mulazim Hussain was convicted on 27th December, 1982 under sec tion 4, Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to two years' R. 1. and fined Rs. 2,000 in default to undergo one year R. 1. further. Convict's appeal was dismissed on 24th August, 1983. He has come up in revision.

2. On 19th September, 1981 at 7 a. m. a raid party recovered 30 grams opium and 85 grams charas from the personal search of Mulazim Hussain, accused. A complaint was drafted, recovery was attested by the members of the raiding party, the case was registered and petitioner prosecuted in due course who denied guilt and ascribed the case to enmity. He led no evidence in defence.

3. Learned counsel for the petitioner contended that there was no member from the general public to attest the recovery. I see no force in the submission because the recovery was not effected from the house of the petitioner. He was said to be going on his way in the open where on search the recovery was effected. The Excise and Police Officials have no enmity to falsely rope in the petitioner in a case of this nature. A The case is overwhelming against him which he has not met in his defence at all.

4. It was also argued that besides Police Official, there was no . other witness from the general public. To my mind Police Official is as good a B witness as any other unless it is shown that he had misconducted the investigation and brought discredit to himself which there is none in this c case. I am satisfied with the guilt of the petitioner. His conviction is, therefore, maintained.

5. There is a patent error in the sentence awarded in default of the payment of fine, because under section 65 of the Penal Code, a sentence of imprisonment awarded in default of payment of fine cannot exceed one fourth of the term of imprisonment which is the maximum fixed for the offence. In the instant case, the maximum sentence provided for the offence is two years, therefore, in default of payment of fine the trial Court could not have awarded a sentence of more than six months. Consequently, the same is reduced to six months. The revision petition is other wise dismissed. The sentence in this case will run concurrently with the sentence passed against him on the same day in case F. I. R. No. 206, dated 26th September, 1981.

M. Y. H Order accordingly.