MUHAMMAD ASHRAF alias Chaudhry vs THE STATE

1. ' WALI MUHAMMAD KHAN, J---Muhammad Ashraf alias Chaudhry, appellant herein, through leave to the Court, calls in question the judgment dated 23-1-1991 of the Federal Shariat Court, whereby his Criminal Appeal No. 193/I of 1990 against his conviction and sentence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, was set aside but his conviction under Article 4 of the said order and sentence of five years' R.I. And 15 stripes plus fine of Rs.2,000 or in default six months, R.I. Awarded to him by the learned Additional Sessions Judge, Islamabad vide order dated 18-11-1990, was maintained.

2. ' The facts of the case, briefly stated, are that Khalid Rashid Inspector alongwith police party was on checking duty on 18-2-1988 when he received spy information that the appellant was present near Goal Market busy in selling heroin, whereupon he deputed Manzoor Hussain Constable in plain clothes as a test purchaser who succeeded in purchasing a Puri of heroin weighing one gram and produced the same before Khalid Rashid which was taken into possession vide memo Exh.PB and duly sealed. On the pointation of Manzoor Hussain, on seeing the raiding party the appellant tried to run away but was overpowered and from his personal search 35 grams of heroin alongwith three currency notes which had been passed on to him by Manzoor Hussain were recovered.

3. During the interrogation he disclosed having concealed heroin in a store and on his further pointation 100 grams of heroin wrapped in a polythene paper was recovered from under a table lying in the store. The sample of the recovered heroin was sealed and sent to the expert. After the completion of the investigation in the case, the appellant was put on trial. The trial Court after examination and appraisal of the evidence produced in the case and examining the accused under section 342, Cr.P.C. In which he denied the recovery of the heroin from his personal search and at his pointation, found the appellant guilty and convicted him under Article 3 of the Order ibid and sentenced him to five years, R.I., 10 stripes and fine of Rs.10,000 or in default three months' R.I.

4. And also under Article 4 of the Order and sentenced him to five years' R.I., 15 stripes and Rs.2,000 fine or in default six months' R.I. On appeal, the Federal Shariat Court set aside his conviction and sentence under Article 3 but the conviction and sentence awarded under Article 4 was maintained.

5. Hence the instant appeal through leave of the Court.

6. ' We have heard Malik Rab Nawaz Noon, Advocate, for the appellant, and have perused the record of the case.

7. ' Leave in this case was granted on the basis of the ing order in Criminal Petition No.1-R (s) of 1988 Muhammad Boota v. The State (1991 SCM R 1167) as same questions were involved in both the petitions. The said case had since been disposed of and we have gone through the judgment delivered therein but could not find it of any help in the disposal of the instant appeal. The learned counsel for the appellant did not seriously challenge the conviction of the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, but in view of his old age and being the sole bread-earner of his large family including two major daughters whose marriages have to be arranged, he prayed for reduction in the sentence. The paper book nowhere discloses the age of the appellant but his wife is present in the Court and according to her the appellant is aged about 60 years. We have no doubt about A her assertion regarding the age of the appellant because she appears to be about 55 years of age and the husband being older than her might be about 58/60 years of age. .

8. ' We feel that the prayer of the learned counsel for the appellant for reduction in the sentence is genuine and by partly allowing the appeal, we reduce the sentence to two years' R.I. Instead of five years, R.I. And five stripes instead of fifteen stripes but maintain the sentence of fine of Rs.2,000 or in default six months' R.I.

9. Sentence reduced.