1992 P Cr (PLP)

ABAID ULLAH KHAN, J.

Muhammad Iqbal alias Balla, son of Allah Mahi, caste Rajput, aged 24 years, cultivator, resident of village Balkhay, Tahsil Ferozewala, District Sheikhupura, was apprehended by the police after he alighted from a bus at village Balkhay, at about 3.00 p.m., on the 19th June, 1989. His search yielded one kilogram of heroin; half kilogram from each dub of his loin-cloth. Ghulam Asghar, Sub-Inspector of Police, P.W.4, who headed the police party, took the heroin recovered from Muhammad Iqbal in his possession alongwith samples of a gram from each of the two packets of half a kilogram of heroin after having covered them into sealed parcels vide the memorandum Exh.P.B., which bears the attestation of Nisar Ahmed, Head Constable, P.W.3 and Muhammad Zahid, P.W.4 Ghulam Asghar drafted report of the incident, Exh.P.A., on whose basis case against Muhammad Iqbal was registered.

2. Muhammad, Iqbal was charged with the alleged commission of offences of sale and possession of heroin punishable under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (President's Order No.4 of 1979). He did not plead guilty to the charge and took up the stance that in order to deter him from persuing the case of murder of his mother's sister's son, Akbar, against police officials he had been falsely implicated by the police. To substantiate the cause of his involvement in the case he produced evidence in defence which was found by the learned trial Court to be untrustworthy.

3. Nisar Ahmed, P.W.3, Muhammad Zahid, P.W.4 and Ghulam Asghar, P.W.5, gave evidence in proof of recovery of one kilogram of heroin from the possession of Muhammad Iqbal which the learned trial Court accepted at its face value. By his judgment of the 30th June, 1990, the learned trial Magistrate, Ferozewala, held the appellant to be guilty of possession of a kilogram of heroin and convicting him sentenced him under Article 4 of the Order to 7 years' rigorous imprisonment, 10 stripes of whipping and fine of Rs.5,000, failure to pay which was to entail further simple imprisonment for 6 months. The learned Magistrate observed that the quantity of heroin recovered from Muhammad Iqbal was indicative of the fact that it had been kept for the purpose of sale and consequently holding him guilty of the commission of offence punishable under Article 3 of the Order convicted him and sentencing him to 3 years' rigorous imprisonment and fine of Rs.5,000, in default of payment of which he was to serve additional 3 month's simple imprisonment. Feeling aggrieved Muhammad Iqbal has come up in appeal to impugn the validity of the decision of the learned Magistrate.

4. The learned counsel for the appellant conceded the possession of heroin and its recovery from the appellant as alleged by the prosecution. However, he submitted that the sentence awarded to the appellant by the learned trial Court, in view of his young age, was on the high side and prayed for its reduction. He contended that the conviction of the appellant under Article 3 of the Order was based on mere presumption raised by learned trial Court which presumption was wholly inadmissible. It is true that no evidence of sale of heroin by the appellant was brought on the record. The learned trial Court just presumed that heroin was kept for the purpose of sale and proceeded to convict the appellant of the commission of offence of sale of heroin. The conviction of the appellant under Article 3 of the Order and sentence given to him in respect thereof are not warranted by law and are accordingly set aside.

5. The conviction of the appellant under Article 4 of the Order is upheld. Nevertheless, the sentence of 7 years' rigorous imprisonment, 10 stripes of whipping and fine of Rs.5,000 is reduced to 4 years' rigorous imprisonment, 5 stripes of whipping and fine of Rs.1,000 respectively. In case the appellant fails to pay the reduced amount of fine of Rs.1,000 he will suffer simple imprisonment for two months. The appellant will enjoy benefit of the provisions of section 382-B of the Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of sentence of imprisonment. The appeal is partially accepted as indicated above. H.B.T./723/F.S.C. Order accordingly.