ZAFAR ABBAS Versus THE STATE

SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of Federal Shariat Court dated 10-11-1993 whereby the learned Chief Justice of the said Court refused to interfere with the conviction and sentences awarded to the petitioner in a case under Article 4 of Prohibition (Enforcement of Hadd) Order 1979, hereinafter to be referred as 'the Order' only.

The petitioner was tried for being in possession of 11 grams of heroin which was found in his possession on 31-10-1992. The recovery of the heroin was supported by the Investigating Officer P.W.2 and Agha Hussain Shah Head Constable P.W.3. Both the Courts below have believed the evidence of these witnesses in so far recovery was concerned.

The learned counsel for the petitioner did not contest the case in view of the overwhelming evidence regarding recovery of heroin from his possession by very vehemently contended that the sentences of the petitioner for recovery of 11 grams of heroin were not justified as there is nothing in the evidence of the prosecution that while weighing the heroin recovered from the possession of the petitioner, it was weighed without its container namely, the envelope. It is pointed out by the learned counsel for the petitioner that the punishment prescribed for possession of heroin weighing 10 grams is only 2 years while the punishment for possession of heroin exceeding 10 grams may extend to imprisonment for life. It is, accordingly, contended by the learned counsel that in these circumstances, the prosecution should have led positive evidence to show that the heroin recovered from the possession of the petitioner was more than 10 grams. Since the point involved in the petition is very sma ll, we asked the learned State Counsel who was present in another case, if he was willing to argue the petition today. The learned State Counsel accepted the notice and showed his willingness to argue the case on merits. We, accordingly. Converted this petition into appeal and heard the learned counsel for the petitioner as well as State Counsel. We have gone through the evidence recorded in the case, with the help of the learned counsel for the parties and are of the view that there is nothing in the evidence to show that at the time the heroin was weighed by the Investigating Officer after recovery, it was weighed without its container namely, waxed envelope in which the heroin was contained. In these circumstances, the possibility that if the heroin would have been weighed without the container namely, waxed envelope in which it was contained, it would have weighed only 10 grams not be ruled out. Since the maximum punishment prescribed under the law for being in possession of heroin weighing 10 grams is only 2 years' R.I and it was a border line case the benefit of doubt arising as to the weight of heroin recovered from the possession of the appellant is extended to him. The appeal is, accordingly, partly allowed. The conviction of the appellant for possession of heroin is maintained but the sentence is reduced to two years' R.I. In view of the possibility that the weight of the heroin could be only 10 grams at the time of its seizure. Sentences of fine and stripes awarded by the Courts below are, however, maintained. The appeal stands disposed of accordingly.

Sentence reduced.