P L D 1953 Baluchistan 19 (PLP)

R K. M. SAKES, J. C.‑Two revision petitions under the provisions of section 439, Cr. P. C., have been submitted to me against the order of conviction of the convict‑petitioners Mst. Jawahir and Najam‑ul‑Haq. The former was convicted under section 8 of the Baluchistan Opium Smoking Regulation of 1950, while the latter was convicted under section 9 of the same Regulation. This order will therefore deal with both revision petitions. The brief facts of the case are that the two convict petitioners were tried for offences under the above Regulation on the basis of a complaint submitted in the Court of the Assistant Political Agent and Magistrate, First Class, Quetta. The allegations made in the complaint were to the effect that a certain house, which belonged to Najam‑ul‑Haq, was being used for the purposes of smoking opium and that when a raid was carried out certain opium smoking instruments were found therein, as a result of which Najam‑ul‑Haq has been convicted under section 9 while the convict‑petitioner Mst. Jawahir, who is the wife of Najam‑ul -Haq, was similarly convicted under section 8 of the same Regulation for being a member of an opium smoking assembly. The convictions in both cases are based upon the presumption which has been raised that the house was being used for the purposes of opium smoking and that the persons assembled therein we members of such an assembly by virtue of section 7 of the Regulation which is reproduced below:- "

7. Presumption raised by presence of opium and opium smoking apparatus: The presence of any opium and of any instrument of smoking in any place, where two or more persons are assembled shall be held sufficient to raise a presumption that such persons have assembled at such place for the purpose of smoking opium or of preparing opium for smoking purposes." Without going into other considerations, which learned counsel for the convict‑petitioners have raised before me, it is clear from the records that when the search of the house was carried out opium smoking instruments only were found in it. There is no mention in the complaint, nor is there any evidence, to the effect that opium was also recovered. In my view the wording of section 7, which has been reproduced above, can have only one interpretation, namely that if such presumption is to be raised, it is an essential ingredient that both opium and instruments must be found together in the house or place where persons are assembled. If it were the intention of the legislature to permit of a presumption being raised, as in this case, when only instru ments have been found, the wording of the section would have been "the presence of any opium or of any instrument of smoking etc. etc." The fact that the word "and" is used makes it imperative that both must be found before the presumption can be used. In the light of these circumstances, I have no alternative but to accept the revision petitions in both cases because the presumption cannot be raised against the persons found in the house that they had assembled for the purposes of smoking opium. Accordingly I set aside the conviction in both cases and direct that the fines, if paid, shall be refunded. Parties present. Order announced. A. H. Petition accepted.