1989SCMR422 (PLP)

NASIM HASAN SHAH, J.‑‑The prosecution case briefly was that on 11-8‑1986 Sher Bahadur, A.S.1. (P.W.1) alongwith some members of the police was on patrol duty within the area of Meva Mandi Kamarmushani, Tehsil Esa Khel. district Mianwali when at about 9.30 A.M. he received secret information that one Rehmatullah and Muhammad Habib were selling charas and heroin on Nasri Road behind the house of Rehmatufah aforesaid, Sher Bahadur A.S.I. proceeded towards the spot alongwith the police party and on seeing them Muhammad Habib, petitioner herein, ran away from the spot alongwith the polythin envelope in his hand. He was, however, apprehended and polythin envelope was recovered from him. This contained 185 grams of charas and 23 grams of heroin. Four grams of heroin in 5 small packets was also recovered from the petitioner herein, Rehmatullah, however, succeeded in making good his escape. Muhammad Habib was tried by the Additional Sessions Judge‑I1, Mianwali, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. His case before the learned trial Court was that actually the heroin and charas was recovered from Rehmatullah who bribed the police and was allowed to get away. However, he was not prepared to give a statement on oath as provided under section 340(2), Cr.P.C. m support of his version. The learned trial Court sentenced the petitioner under ArtieIe4'.of the Prohibition Order to five years' R.I. with whipping of ten stripes and a fine of Rs.5,000 or in default further six months' R.I. The benefit of section 382‑B, Cr.P.C. was also extended. On appeal, the Federal Shariat Court vide judgment dated 19‑10‑198", maintained the conviction of the petitioner but reduced the sentence from five years R.I. to three years R.I. However, the remaining sentences were kept intact. The petitioner has now filed this petition for leave to appeal in this Court. We have heard the learned counsel for the petitioner and are satisfed that he has been rightly convicted but there is some force in the argument that Rehmatullah who appears to be equally, if not more gravely implicated m the offence, has been allowed to go scot free and the entire blame passed on to the shoulders of the petitioner. Probably, this was also the feeling of the learned Federal Shariat Court while reducing the substantive sentence awarded to him from 5 years' R.I. to three years' R.I. In our view he was entitled even to further leniency. We, therefore, called upon Sh. Ijaz Ali learned counsel for the State to show cause why the sentence should not be reduced further. He could not deny that the police in allowing Rehmatullah to get away scot free and shifting the entire blame on the petitioner had not acted fairly. We, accordingly, convert this petition into an appeal and allow it to the A extent that the substantive sentence of the appellant Muhammad Habib shall be reduced from three years' R.I. to two years' R.I. The remaining sentences shall remain intact. This appeal is accordingly, partly allowed in the above terms. M.I./M‑593/S Order accordingly.