1988 PLP 1961 (SCMR)

NASIM HASAN SHAH, J.‑‑The relevant facts briefly stated are that a police party headed by Noor Khan A.S.I. was deputed to search for contraband and in pursuance of this objective they entered a compartment of 2‑DN Khyber Mail at Railway Station, Attock wherein the petitioner (Mst.Musarrat Edhi) was also travelling. One of the members of the police party suspected that some narcotic substance was present in her purse. Noor Khan A.S.I. took her purse and on opening it found two packets therein of polythene; one contained 250 grams heroin and the other 150 grams opium. Mst.Musarrat Bibi was tried on charges under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 but was acquitted by the learned Additional Sessions Judge, Attock vide order dated 24‑11‑1985. The State preferred an appeal against the said order and the Federal Shariat Court vide judgment dated 4‑3‑1987 held that the prosecution had proved its case against the respondent and held the order passed by the learned Additional Sessions Judge to be unsustainable. The same was, therefore, set aside. Mst.Musarrat Bibi was convicted of the charge under Article 3 of the Order namely transporting heroin and opium and sentenced to two years' R.I. with a fine of Rs.20,000 or in default one year R.I. Hence this petition for leave to appeal. Article 3 of the Prohibition Order is in the following terms: "3. (1) Prohibition of manufacture, etc. of Intoxicants.

Subject to the provision of clause (2), whoever: (a) imports, exports, transports; manufactures or processes any intoxicant; or (b) bottles any intoxicant; or (c) sells or serves any intoxicant; or (d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping nor exceeding thirty stripes and shall also be liable to fine. (2) Whoever,‑‑ (i) imports, exports, transports, manufactures, or traffics in, opium or coca derivatives, shall be punishable with imprisonment, for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine." It is submitted that the above provision applies to persons who import, export, transport, manufacture or traffic in opium or coca derivatives. The lady was found carrying 150 grams of opium in her person but the learned Federal Shariat Court has itself observed that she was a first offender and belonged to a respectable family and, therefore, does not appear to be a person who was trafficking in narcotics. Hence Article 3 of the Order was not attracted. As there is some force in this argument we heard Mr.S.D. Qureshi, Advocate, learned counsel for the State who was appearing to oppose the grant of leave. After hearing him we feel that the circumstance that the petitioner was a first offender has not been given the attention that it deserved in the context of the provisions of Article 3 of the order and that the ends of justice will be served if the sentence of the petitioner is reduced to that already undergone by her. The sentence of fine, however, imposed on her appears to be appropriate. Accordingly, this petition is converted into an appeal and partly allowed. The sentence of two years' R.I. imposed on the appellant is reduced to that already undergone but the sentence of fine for Rs.20, 000 or in default one year further R.I. is maintained. This petition is allowed in the above terms. M . Y. H . / M‑552/ S Appeal partly allowed