P L D 1993 Federal Shariat Court 20 (PLP)

Date of hearing: 21st October, 1992. This Jail Criminal Revision has been filed by the petitioner, who has been convicted under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the said Order"), having been found in possession of ten grams of heroin, which was allegedly recovered from him on 1‑10‑1987 and consequently, a case vide F.I.R. No. 735/87, P.S. Mingora, was registered against him. After necessary investigation the challan under Article 3/4 of the said Order was submitted to the Court of learned Magistrate, 1st Class, who was pleased to convict him under Article 3 of the said Order and sentenced him to one year's R.I. and also to pay a fine of Rs.3,

000. He was further convicted under Article 4 of the said Order and sentenced to one year's R.I. and also to pay a fine of Rs.2,000 in default of payment of fine the petitioner/convict was made liable to undergo further three months' S.I.

2. The petitioner/convict challenged the said conviction by appeal before the then learned Sessions Judge (Mr. Said Maroof Khan), Swat, who by his order dated 6‑10‑1991, accepted the appeal, set aside the conviction and remanded the case back to the trial Magistrate for fresh decision. After remand the petitioner/convict was convicted and sentenced, by the learned MIC by his order dated 25‑1‑1992, against which the petitioner/convict, preferred an appeal, which came up for hearing before the learned Sessions Judge, Swat at Saido Sharif (Mr. Abdur Rahman Khan). The learned Sessions Judge while dismissing the appeal by his judgment dated 25‑8‑1992, against which the above revision has been preferred, observed that:‑‑ "Keeping in view the plea of guilty of the accused in the formal charge. as well as statement of the accused recorded under section 342, Cr.P.C. it does not reveal that the trial Court has committed any illegality and so keeping in view the quantity of the contraband heroin weighing 10 grams the conviction and sentence of the accused seems, genuine and proper. Consequently, the appeal being without substance' is dismissed." It is evident that the conviction is solely based on admission of the petitioner at the earliest opportunity, for which he deserved leniency.

3. However, in the facts and circumstances of the case, I am of the view that the petitioner cannot be convicted under both Articles. Either he can be convicted under Article 3 or under Article 4 of the said Order. It is, therefore, ordered that the conviction is upheld under Article 4 only for having been found in possession of ten grams of heroin. The conviction under Article 3 is set aside. Reliance is placed on the case of Muhammad Ayub v. The State 1992 SCMR 108.

4. As regards the sentence, the petitioner has been sentenced to one year R.I. only under Article 4 with a fine of Rs.2,000 and in default to undergo further simple imprisonment for three months more.

5. In result, the conviction under Article 3 and sentences passed therein are set aside. However, the sentence of one year's R.I. and fine of Rs.2,000 (two thousand) and for non‑payment simple imprisonment for three months under Article 4 is maintained.

6. With the above modification in sentence, the revision petition is accepted. N.H.Q./792/FSC???????????????????????????????????????????????????????????????????? Revision partly accepted.