1999 PLP 2432 (MLD)

Muhammad Shuaib Abbasi for the State. Date of hearing: 5th May 1998. Appellant has assailed a judgment delivered by the Additional Sessions Judge, Turbat on 31-12-1996 whereby he has convicted him under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, hereafter to be referred to as the said order and has sentenced him to R.I. for 10 years, 15 stripes and a fine of Rs.1,000 in default of which he has to undergo 3- months imprisonment with benefit .of section 382-B, Cr.P.C.

2. Lal Muhammad (P.W.4), I.P/S.H.O., Police Station Turbat complained at Police Station on 3-6-1995 at 6-45 p.m. that while he was on Petrol duty alongwith other personnel of Police, they received a spy information that in the house of Kulsoom Bai heroin is being sold and many customers are present there. A raid was made on the house at 5.30 p.m. on 3-6-1995 and alongwith other customers the present appellant was searched from whom a bag of plastic was recovered which contained 50 grams of heroin. He was arrested, challenged and charged under Article 3/4 of the said order to which he did not plead guilty.

3. To prove its case prosecution examined 4 witnesses. Sarwar Ali (P.W.1) H.C., has deposed that on 3-6-1996 while he was present at Police Station Turbat that the police party brought appellant at Police Station. S.H.O. had heroin powder in a plastic bag which was weighed in his presence which came to be 50 grams. Recovery memo was prepared which was signed by him and is Exh.P.W./1-A. Sayed Abdullah (P.W.2), Chemical Expert, has deposed that he received a sealed parcel from S.H.O., Police Station Turbat on 9-7.1995 which contained 50 grams of heroin. On chemical test it was found to be heroin of gray colour. He issued such certificate which is Exh.P/2-A. Lal Muhammad Lasi (P.W.3), S.H.O./1-P and Investigating Officer has deposed that he was posted at Police Station Turbat on 3-6-1995. Lal Muhammad (P.W.4), I.P./S.H.O. brought appellant at Police Station and got lodged F.I.R. which is Exh.P/3-A and it contains signature of Lal Muhammad, I.P. He prepared recovery memo of 50 grams of hero in which is Exh.P/1-A and on this memo he signed and also signatures obtained. Lal Muhammad (P. W.4), I.P/S. H. O./complainant has deposed is support of the story as narrated in F.I.R. Appellant has examined himself on oath under section 340(2), Cr.P.C. and has deposed that he was a labour at the house of Mst. Kulsoom Bibi, used to wash her clothes and collect wood as fuel for her house. Police party raided her house at 5-00 p.m. and recovered heroin from the abovementioned lady. Out of this recovered heroin 1/2 was shown in the name of Hameed and 1/2 in the name of appellant on payment of bribe to the Police by Hameed who is a rich person. He has not produced any witness in his defence.

4. I have heard the counsel for appellant and State. Main contentions of the counsel for appellant are that the recovered heroin was sent for chemical examination on 9-7-1995 i.e. one month and six days after the recovery and that the only witness of recovery is Lal Muhammad (P.W.4) as other witnesses were not present at the spot and have signed memo. of recovery at police station. Both these contentions are misconceived in view of the fact that no suggestion about tampering before despatch for chemical examination is made. So far as second contention is concerned, it appears that after recovery and arrest, the appellant was brought at police station where memo of recovery was prepared. No suggestion has been made that the recovered heroin was foisted. On the contrary the very factum of recovery has been admitted by appellant in his statement under section 340(2), Cr.P.C. No evidence in defence has been produced to prove the plea of appellant. The report of chemist is positive. The guilt of the appellant is proved beyond any reasonable doubt.

5. It appears that the appellant has been continuously in custody since the very date of arrest i.e. 3-6-1995. If so then he has already undergone sentence up to almost 3 years. Since the recovery of heroin is that of 50 grams only, the sentence is reduced to the one already undergone to which the counsel for State concedes. Stripes are set aside as no more required under the law. A short order was already made on 5-5-1998. These are the reasons for the said order. The impugned judgment is upheld with the modifications mentioned above. Appeal is dismissed. N.H.Q./7-FSC Sentence reduced.