MST. AFSARI JAN Versus THE STATE Aman Khattak , A.K. Jatoi
1. This appeal is directed against the judgment, dated 30th April, 1987 of Sessions Judge, Karachi (East) whereby he convicted the appellant Mst. Afsari Jan for the offence under section 4 of the Prohibition (Enforcement of Hudood) Ordinance, 1979 and she has been sentenced to R.I. for one year and pay fine of Rs.200 in default to undergo S.I. for one month more.
2. The facts are that on 5-9-1986 Mohammad Bashir A.S.I.P. of Korangi, Police Station, Karachi (East) had gone for patrolling with police party including one lady constable. When party reached at Bilal Colony Korangi, A.S.I.P. received spy information that a woman was selling heroin in Bilal Colony. He picked up two Mashirs namely Mohammad Ismail and Mohammad Illyas and reached there. At the pointation of spy they found one lady. She was stopped. On enquiry she disclosed her name as Afsari Jan On her search lady constable Alam Begum recovered one green coloured bag from the fold of Shalwar of Afsari Begum containing of 21 packets of heroin weighing 15 grams. The heroin was sealed at the spot and such Mashirnama was prepared. A.S.I.P. Mohammad Bashir came at Police Station and lodged the report.
3. The charge was framed against the appellant on 10-12-1986 to which she pleaded not guilty.
4. Prosecution in support of the case examined Mst. Alam Begum Ex.4, Mohammad Illyas Mashir Ex.5 and Mohammad Bashir Investigating Officer Ex.7. Appellant in his statement under section 342, Cr.P.C. Ex.13 denied the allegations and stated that prosecution witnesses have deposed against her at the instance of the police and they are policemen. She was also examined on oath u/s. 340 (2) Cr.P.C. and her statement is at Ex.14 in which she stated that about 9 months back she had a dispute with her husband Dilawar Shah. Soon after one police constable came to her house at about 10.00 p.m. and asked about her husband to which she replied that her husband is not present in the house. Thereafter, police person took her in Suzuki to Police Station Korangi, Karachi where she was made to sit for two nights. Police involved her at the instance of one lady Noshad, bad character woman to whom she prevented from running prostitution den and she got her involved in false case. Appellant has also stated that no other case is pending against her in any other Court. She could not make any application against the Police as she was detained at the Police Station. She has not examined any witnesses in her defence.
5. PW-1 Mst. Alam Begum has stated that on 5-9-1986 she was posted as Lady Constable at Police Station Korangi, she 'accompanied A.S.I. Bashir and three other constables for patrolling duty for Bilal Colony, Karachi and on the same day at 1-15 p.m. appellant Mst. Afsari Jan was standing at Quarter No.38 Sector 8-A Bilal Colony Korangi, Karachi. A.S.I.P. asked appellant to stop and further directed her to take personal search of Mst. Afsari Begum. She took the search and found one packet of green colour from fold of her Shalwar containing 21 Puris of heroin. A.S.I.P. Bashir prepared such Mashirnama and sealed the heroin on the spot. She has stated that she also secured Rs.6 from the pocket of the appellant. Appellant was arrested and they took her to the police station.
6. PW-2 Mohammad Illyas Ex.5 is Mashir. He has stated that on 5-9-1986 at about 1.00 or 1.15 noon she was standing at Bilal Colony Korangi Karachi, In his presence lady searcher took personal search of appellant Mst. Afsari Jan and secured 21 puris from the Shalwar, such Mashirnama was prepared on the spot and heroin was sealed in his presence. He produced Mashirnama Ex.6. He has stated that accused present in Court is same and property shown to him is same. In his cross-examination he stated that he never acted as Mashir in cases of A.S.I.P. Bashir. No enmity was suggested with this Mashir. PW.3 Mohammad Bashir has corroborated his first information report and stated that on 5-9-1986 he was on patrol duty. He received spy information that one woman was selling heroin in Bilal Colony. He took Mashirs and saw appellant at the place of information, She was stopped and on her search by Lady Constable 21 Puris of heroin weighing 15 grams were recovered and such Mashirnama .Ex.6 was prepared. He stated that he arrested the appellant and took her to Korangi Police Station where he lodged the report which he produced as Ex.8. He has stated that he sent heroin to Chemical Examiner and challaned the accused. He produced Chemical Examiner's report as Ex.9. The report of the Chemical Examiner is in positive. Weight shown without papers as 13.70 grams and of commercial grade.
7. I have heard Mr. Aman Khattak. It is contended by the learned counsel that there are material contradictions in the evidence of Mashirs and lady searcher. It is argued that the appellant had been falsely involved at the instances of one prostitute. He has referred to the case reported in 1986 P.Cr.LJ FSC 1732.
8. Mr. A.K. Jatoi appearing for the State has supported the conviction and submitted that lady searcher and independent Mashir Mohammad Illyas have fully corroborated the Mashirnama and recovery.
9. In this case there are three eye-witnesses namely Mst. Alam Begum, Mashir Mohammad Illyas and Mohammad Bashir A.S.I.P. All the witnesses have fully supported the case of prosecution. In the cross-examination nothing material has come on record. The appellant has not suggested any enmity with private Mashirs or witnesses. She has also not examined any witness in her defence. There is no documentary evidence about the enmity of appellant with prostitute Noshad. The report of chemical examiner is in positive. The other point on which I issued notice to the appellant is that she was found in possession of heroin more than 10 grams, and she has been convicted for that charge. The minimum punishment provided for this charge is two years which could be extended up to imprisonment of life in case more than 10 grams of heroin is secured and proved. I gave a notice to the appellant for enhancement of sentence. Mr. Aman for the applicant frankly stated that in case the conviction is maintained she is liable for conviction at least for two years. There is sufficient evidence against the appellant and she had rightly been convicted. ?Her appeal is dismissed.
10. With regard to sentence, it is mandatory that if case is proved for possession of more than 10 grams heroin the punishment should not be less than two years. Article 4 of Prohibition (Enforcement oil Hadd) Order, 1979 is reproduced as under:-
11. (4). Owning or possessing intoxicant: -Whoever owns, possesses or keeps in his custody an 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:
12. 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 a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony:
13. 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 or coca leaf, the offender shall be punishable with imprisonment for life or imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
14. The sentence awarded by the learned Sessions Judge is not in accordance with law. I, therefore, enhance the sentence from one year to two years, but maintain fine of Rs.200.
15. Appellant is in custody. She is given benefit of section 382-B, Cr.P.C. Jail Authorities to verify and commute her period as under trial prisoner towards substantive sentence.
16. S.A./A-270/K ????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.