ZAIB Versus THE STATE

This Jail Criminal Appeal is directed as against the judgment and order of the Court of learned Sessions Judge, Mansehra,. dated 17-3-1994 vide he convicted and sentenced the appellant to one year's R.I. 5 stripes and a fine of Rs.2,000 or in default of 3 months' S.I. further under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, also extending him the benefit of section 382-B, Cr.P.C. in the computation of his period of imprisonment. The Court has, however, acquitted the appellant on the charge under Article 3 of the Prohibition Order as the ingredients of the said offence were not proved at the trial.

2. After hearing the learned counsel for the parties and going through the record there are pointed out lapses as the appellant was charged that on 15-10-1992 at 9-15 hours he was found in possession of 11 grams of heroin and had thereby committed an offence punishable under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The charge was denied and he claimed trial. The charge as read above can only pertain to the offence under Article 4 of the Prohibition Order and in no way the said charge can be read also to bear any nexus with Article 4 of the Prohibition Order which pertains to the import, export, transport, manufacture or sale of intoxicant etc. It is a simple case of possession of intoxicant and the Court should have straightaway charged the appellant for an offence under Article 4 of the Prohibition Order and need not have added the offence under Article 3 to the charge. The Prohibition Order being a President's Order has to the Articles and not sections and Courts are supposed to charge and convict the accused for offences under its Articles and not under its so-called sections. There is made a reference to Article 4, Part I which reads that the possession of an intoxicant shall be punishable with imprisonment of either description extendable to two years or with whipping not exceeding thirty stripes and that the accused shall also be liable to fine. It thus comes to that under Article 4, -Part I the accused can either be punished with imprisonment up to 2 years or with whipping not exceeding 30 stripes, no doubt, also with fine in either case. However, accused cannot be punished with imprisonment as well whipping simultaneously. Herein the Court has proceeded to punish the appellant both with imprisonment and whipping besides fine. May it be stated that if the case is covered by the second proviso to Article 4 of the Prohibition Order that the intoxicant for which the offence is committed is heroin and the quantity exceeds 10 grams then the offender shall be punishable both with imprisonment and whipping besides the fine. In the instant case the Court has held that the quantity of the heroin recovered from the appellant was less than 10 grams and as such the appellant was liable to punishment under the first part of Article 4 i.e. with imprisonment or whipping besides the fine.

3. Coming to the merits of the case the appellant was directed to stop on suspension and on search the heroin was recovered from a wrapper in a plastic envelop from his "boot". The heroin was weighed 11 grams alongwith the plastic wrapper and as such the weight of the heroin was to be deemed less than 10 grams in the above circumstances. The recovery was made on 15-10 1992 and the sample was sent to Chemical Examiner on 27-12-1992 and the delay in the despatch and the receipt of the sample was not explained. Appellant was stated to be a previous convict but no evidence was led at the trial to the effect while the appellant in his examination under section 342, Cr.P.C. denied of being a previous convict. The recovery was made at Nari Bridge at Baidra Road at 9-15 hours that at the time shops were opened. P.W.3 stated that no body was willing to be cited as a witness of the recovery while PWA stated that he did not request anybody to join the investigation. This would, however, not make the difference that the recovery was made and witnessed by the police personnel in the absence of any suggestion of animosity or adverse interest borne by the police personnel as against the appellant. This Court would, therefore, maintain the conviction of the appellant on the charge of the possession of the narcotics in heroin powder weighing less than 10 grams and after extending the benefit of section 382-B, Cr.P.C. the appellant's imprisonment having served is computed in total 7 months and 20 days and this Court would, therefore, reduce his imprisonment to the one already undergone. This Court would further set aside the sentence of whipping as already held that in case of sentence of imprisonment there cannot be imposed sentence of whipping along. The sentence of fine in Rs.2,000 is hereby reduced to a fine of Rs.500 or in default the appellant shall undergo one month's R.I. further.

N.H.Q./1597/P Sentence reduced