1999 PLP 2330 (MLD)

Date of hearing; 20th October, 199:

3. Zarif Khan the appellant has come up in this appeal against judgment dated 23-5-1998 delivered by the learned Additional Sessions Judge-1, Quetta whereby he convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.5,000 'in default of payment whereof to further undergo R.I. for 3 months. The benefit of section 382-13. Cr.P.C. has, however, been allowed to the appellant vide the impugned judgment.

2. The prosecution case as set up is that a special 'nakka' was laid from 4-00 p.m. to 6-00 p.m. on 28-7-1997 at Quetta--Chamman Road opposite Police Station Kachlak when at about 5-00 p.m. a passenger bus coming from Gulistan side came which was stopped for checking. During checking one passenger was suspected who was made to alight from the bus and on his personal search, from the right side pocket of his light sky colour shirt one plastic envelope, which contained heroin weighing 20 grams alongwith the cover was recovered. The heroin taken out was found to be 15 grams in weight. The same was taken in possession and sealed into a separate parcel. Murasala Exh.P/1-A was sent by Saifullah Khan P.W.1 Inspector/S.H.O. Police Station Kachlak for registration of the case. On the basis of the above murasala formal F.I.R. Exh.P/4-A was recorded by P.W.4 Muhammad Yar, A.S.I. The parcel of heroin taken into possession was sent for chemical examination. 1t was reported by the laboratory that the material contained in the parcel was heroin. The Report, of Forensic Science Laboratory is Exh.P/3-A.

3. After investigation the appellant was challaned to the Court. The learned trial Court framed the charge against the appellant under Articles 3 and of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant did not plead guilty and claimed trial.

4. The prosecution in support of its case produced 4 witnesses namely P.W.1 Saifullah Khan, Inspector of Police/S.H.O. who sent the murasala Exh.P/1-A for registration of the case, made recovery of heroin and made it into a sealed parcel for chemical Examination. P.W.2 Amjad Parvez foort constable a witness of recovery of the heroin taken into possession vide Exh.P/1. P.W.3 Syed Abdul Jabbar the analyst of the Forensic Science Laboratory who proved the report Exh.P/3-A and held the sample sent to him as heroin and P.W.4 Muhammad Yar, A.S.I. who recorded the formal F.I.R. Exh.P/4-A investigated the case and submitted the challan in Court.

5. The learned counsel for the appellant very candidly submitted that the only thing he could urge was that all the witnesses belong to the police force but in view of the consistency in the statements of the witnesses and nothing having been established as to their personal enmity against the appellant he would not challenge the conviction and would only pray for reduction of sentence as the sentence in the face of meager quantity of the material recovered is highly excessive and harsh. It was also submitted by the learned counsel for the appellant that he is the only earning member of his family and his further detention in jail will render his family destitute.

6. The learned counsel for the State submitted that he has no objection to the reduction of sentence and this is otherwise also a matter in the discretion of the Court.

7. Notwithstanding the position that there is no challenge to the conviction on behalf of the appellant I have gone through the evidence on record with the assistance of the learned counsel for the appellant and the State. I am of the view that conviction is well-based and no valid exception can be raised against the same. However, in view of the small quantity of heroin which has been recovered from the appellant and the contention that he is the only earning member of his family I am inclined to reduce the sentence which otherwise also appears to be excessive. The purport of sentence is not to cause agony to the A convict but to make him realize that the leading of criminal life entails punitive action. In the case of first offender it is always desirable that the sentence should be very commensurate with the nature of crime and should not be harsh so as to convert the convict into a hardened criminal. The appellant being the first offender and the only earning member of his family I would reduce his sentence to 2 years rigorous imprisonment and the fine of Rs.5,000 to Rs.3,000 in default of payment whereof to suffer further R.I. for 2 months.

8. In view of the above discussion the appeal qua the conviction is dismissed but the sentence is reduced as mentioned above. The benefit of section 382-B, Cr.P.C. allowed by the learned trial Court shall remain intact. N.H.Q./19-FSC Sentence reduced.