1990 P Cr (PLP)

ABDUL KARIM KHAN KUNDI, J.‑‑‑ Criminal Appeal No.31/P of 1989 is directed against the judgment and order of the Court of Magistrate 1st Class Peshawar dated 17‑6‑1989 vide on the plead guilty statement of the appellant he was convicted and sentenced to five years' R.I. and a fine of Rs.1,000 or in default to undergo three months' S.I. further.

2. On 8‑6‑1988 the appellant was found outside G.T.S. Bus Stand Peshawar Saddar in suspicious condition by the local police on patrol duty and on search there was recovered a plastic envelope from the side pocket of his shirt which was found containing 10 grams of heroin powder. A recovery memo. was prepared as witnessed by police personnel and a Murasila was sent for registration of the case. F.I.R. No.464 in Police Station East Cantt., Peshawar was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. A challan was submitted in Court on, 11‑2‑1989 and on some eight dates of hearing the accused in custody could not be brought in Court and the case was accordingly adjourned. On 17‑6‑1989 the accused was charged with offence of transporting 10 grams heroin powder and to have committed an offence punishable under Article 3/4 of the Prohibition Order by Abdullah Jan Afridi, Magistrate 1st Class, Peshawar. The accused stated that he pleaded guilty and also abandoned his right of adjournments under section 241‑A, Cr.P.C. The Court proceeded to hold him guilty on his above admission and convicted and sentenced him accordingly.

3. Mr. Abdullah Jan Afridi, Magistrate 1st Class was summoned to explain the proceedings conducted by him. Learned counsel for the parties were also heard and the record was put to scrutiny with their assistance in the attendance of the learned Magistrate. The learned Presiding Officer of the trial Court apprised this Court that he has been invested with enhanced powers under section 30, A Cr.P.C. sometime in the year 1983/84. He has, however, neither charged the accused nor signed the judgment and the order‑sheets describing him as a Magistrate 1st Class with enhanced powers under section 30, Cr.P.C. He has nonetheless still proceeded to impose a sentence of five years' imprisonment on the appellant under Article 3/4 of the Prohibition Order, while as a Magistrate of 1st Class he could only impose the maximum sentence of three years' imprisonment. Consequently the trial stood vitiated and in support reference is made to P L D 1985 FSC 420.

4. As far as the plead guilty statement of the appellant is concerned, he has not stated in very clear terms that he admitted the commission of the offence of transportation or trafficking in narcotics of 10,grams heroin powder but he has only stated to plead guilty. He could not be convicted on such admission and on this score too the case merits to be remanded for retrial according to law.

5. However, the appellant has only been charged with transporting the narcotics although per statement in the F.I.R. he has been found outside the G.T.S. Bus Stand Peshawar Saddar and was searched on suspicion that an envelope containing 10 grams heroin powder was recovered from his side pocket of the shirt. There has not been recovered a ticket from him nor he has been found boarding or alighting from the Bus to provide an inference that he was transporting or trafficking in the narcotics. There could not be made out a charge under Article 3 of the Prohibition Order as against the appellant in the facts and circumstances of the case. There could only be made out a charge against him under Article 4 and since there has been recovered heroin powder not exceeding 10 grams from him, the offence shall be punishable with two years' imprisonment or with whipping not exceeding thirty stripes and also fine. Ever since his arrest on 8‑6‑1988 the appellant is in the prison which comes to about one year and five months while the offence of which he could be possibly found guilty is punishable with two years' imprisonment. In the circumstances, this Court would, but accept the appeal, modify the sentence and the appellant shall be deemed to have been sentenced to one already undergone imprisonment after extending him the benefit of section 382‑B, Cr.P.C. instead of the sentence of imprisonment and fine awarded against him. He shall be released forthwith if not wanted in any other case. N.H.Q./532/FSC Order accordingly.