1990 PLP 1500 (MLD)

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑ ‑‑‑‑Art.4‑‑‑Appreciation of evidence‑‑‑Ocular evidence furnished by police officials regarding recovery of 1010 grams of opium from accused was found reliable which was consistent despite lengthy cross‑examination‑‑‑Police witnesses had no animosity and grudge against accused to falsely foist contraband opium on him‑‑‑Report of Chemical Examiner was positive‑‑‑Prosecution, held, had brought home the charge to accused in circumstances. (b) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑ ‑‑‑‑Art.4‑‑‑Sentence‑‑‑Chemical Examiner had not opined that intoxicant was a raw opium‑‑‑Sentence of imprisonment of four years' R.I. awarded to accused was accordingly reduced to two years' R.I. with benefit of S. 382‑B, Cr.P.C. P L D 1986 FSC242 ref. (c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S.340(2)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4‑‑ Accused did not examine himself on oath as required under section 340(2), Cr.P.C.‑‑‑Adverse inference on that score could be drawn against him to be availed in corroboration of prosecution evidence. (d) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S.342‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 197,9), Art. 4‑‑‑Report of Chemical Examiner had been exhibited in evidence‑‑‑Accused did not contend that something other than opium was recovered from him‑‑‑Accused, therefore, was not prejudiced in his cause if he was not put a pertinent question for his explanation in his statement under S: 342, Cr.P.C. that contraband item recovered from him was reported by Chemical Examiner as opium. Muhammad Aslam Uns for the State ABDUL KARIM KHAN KUNDI, J.‑‑By a judgment and order dated 20‑12‑1989 the learned Sessions Judge, Toba Tek Singh, found Muhammad Ramzan, appellant, guilty on the charge of possession of 1010 grams of opium as recovered from him on 18‑7‑1988 at about 8‑45 p.m., near canal bridge at Faizabad Colony, Toba Tek Singh in the limits of P.S., Toba Tek Singh and accordingly convicted and sentenced him to 4 years R.I., ten stripes and a fine of. Rs.5,000 or in default six months R.I., further.

2. After hearing the learned counsel for the parties and going through the evidence on record we have found that the prosecution succeeded to bring home the charge of possession of opium intoxicant in 1010 grams by the ocular evidence of Talib Hussain Constable (P.W.4), Muhammad Sabir, ASI (P.W.5) and Shafique‑ur-Rehman, Inspector Police (P.W.6), who were cross‑examined at length, but there could not be brought out any contradiction in their testimonies. They stated on oath that the appellant was suspected and on his personal search, 1010 grams of opium was recovered from right fold of his `Chador' as wrapped in a plastic envolope which was taken into possession, sample was separated and. sealed parcels were prepared. The parcel was first delivered to Abid Hussain, Constable (P.W.2) who kept the same in safe custody in the `Malkhana' and later on gave the sealed parcel intact to Shaukat Ali, Constable (P.W.3) who delivered the same intact in‑ the office of chemical examiner. The latter reported that the packet contained non‑excise opium likely to cause intoxication. The police personnel were not to bear any animosity and grudge against the appellant in order to fasely foist the contraband opium on him. The appellant during his examination under section 342, Cr.P.C., stated that he would produce evidence in his defence and would also give evidence on oath in disproof of the charges and allegations made against him at the trial. He produced Rehmat Ullah (D.W.1) and Muhammad Asghar (D.W.2) who had not appeared before the Investigating Officer and just claimed that the appellant has been falsely implicated in this case and that he has been arrested by the police from the village. Appellant, however did not examine himself on oath as required under section 340(2), Cr.P.C" and on this score there shall be drawn an adverse inference against him to be availed in corroboration of the prosecution evidence. Our attention was once again drawn to the statement of the appellant recorded under section 342, Cr.P.C., who was not put a pertinent question if the contraband item recovered from him was reported by the chemical examiner as opium. The report of the chemical examiner has been exhibited into evidence. It is not the case of the appellant that in fact there was recovered something different from him than the opium. We do not think that he has been prejudiced in his cause by having not been asked such a question for his explanation.

3. Last but not the least the learned counsel for the appellant referred us to PLD 1986 FSC 242 which has laid down a rule that recovery of oipum in any shape other than raw opium shall be punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) with imprisonment upto two years or whipping not exceeding thirty stripes and also fine and that recovery of raw opium exceeding one kilogram would render an accused punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes and also fine under the second proviso of Article 4 of the Prohibition Order. In the appellant's case, the intoxicant has not been opined by the chemical examiner as a raw opium and we would, therefore, maintain his conviction under Article 4 of the Prohibition Order, no doubt, but would reduce his sentence to two years imprisonment and fine of rupees five thousand only and in default to undergo six months R.I. further. With the reduction in the sentence, we would dismiss the appeal. We would also allow the benefit under section 382‑B, Cr.P.C., to the appellant. The suo motu notice for enhacement of the sentence issued tot he appellant is hereby recalled. N.H.Q./520/`F.S.C Sentence reduced.