1995 PLP 1114 (MLD)

Date of hearing: 8th February,

995. By judgment dated 18‑10‑19941 Magistrate First Class (section 30, Cr.P.C.), Sialkot, (F.I.R. No. 194/93 of Notice Station Ugoki, District Sialkot) convicted appellant Bashir Ahmad alias Billa son of Fazal Karim Kashmiri under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to 7 years R.I., 10 stripes and a fine of Rs. 2,000 and in default is the payment of fine to further undergo R.I. for 6 months. Benefit of section 382‑B, Cr.P.C. was extended to the appellant. Being aggrieved, the present appeal has been filed. I have heard Mr. Muhammad Aslam Bajwa, learned counsel for the appellant and Mr. Irshad Ahmad, Advocate, who has appeared for the State.

2. According to the complaint (Exh. PB), on 17‑4‑1993, the police party headed by P.W. 3, A.S.I. Maqsood Ahmad (complainant as well as 1.0.) was patrolling near Chowk Gohadpur when complainant received secret information that the appellant was selling heroin in Muradpur graveyard. The police conducted a raid, apprehended the appellant and from his personal search a Khaki envelope containing heroin was recovered from his shirt pocket and on weight the powder was found to be 850 grams, out of which two grams separated and sealed for chemical examination whereas the rest of the heroin was sealed in a separate parcel. A case was registered against the appellant and after completion of investigation, he was sent up for trial during which 4 prosecution witnesses were examined. P. W.1 is H. C. Shaukat Ali, who kept the case property from 17‑4‑1993 to 28‑4‑1993; P. W. 2 Constable Asghar Ali is one of the recovery witnesses; whereas P. W.3 A. S. I. Maqsood Ahmad is the complainant, Investigating Officer and had conducted the search; and P. W. 4 is Muhammad Ilyas, who recorded the formal F.I.R. The appellant, in his statement under section 342, Cr.P.C. denied the entire case.

3. In this case, according to the learned counsel for the appellant, there is a major lacuna in the prosecution case inasmuch as there is evidence on record that apart from two grams of heroin which had been sent for chemical examination, the rest of the heroin i.e. 848 grams which was kept in a separate parcel had been destroyed prior to the trial. P. W.1 H. C Shaukat Ali, with whom the property was kept in the Malkhana, stated in unambiguous terms that the property had been destroyed alongwith the properties of certain other cases. Apparently, it must have been done under section 516‑A, Cr.P.C. but when such destruction takes place before the trial samples are kept so that such samples be produced in Court during trial for establishing the total quantity and the quantity destroyed. No such samples were produced in Court. On the other hand, P. W.2 and P. W.3 apparently were of the view that the property had not been destroyed as they referred to Exh. P/1 as the property. The fact that there was evidence about the destruction of the property from the evidence of P. W.1 in whose custody the property was kept could not be controverted by Mr. Irshad Ahmad, learned counsel for the State.

4. In the circumstances, there is only evidence about two grams of heroin which was sent to the chemical examiner for report and the report is positive i.e. the sample powder was heroin. On the state of the evidence on record, the appellant can only be convicted being sin possession of two grams of heroin. In the circumstances, learned counsel for the appellant submitted that in case the conviction is altered from possession of 850 grams of heroin to 2 grams of heroin he would not press this appeal on other grounds.

5. As a result, the conviction of the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 is altered from possession of 850 grams of heroin to 2 grams of heroin and the sentence is reduced from seven years R.I. to the sentence already undergone and this includes the further period required to be undergone on account of default in the payment of fine. The sentence of stripes is set aside. This appeal stands disposed of in above terms.

6. As the sentence awarded is already undergone by appellant Bashir Ahmad alias Billa son of Fazal Karim Kashmiri, he may be discharged from prison forthwith if not required in any other case. N.H.Q./948/FSC ??????????????????????????????????????????????????????????????????????????????? Order accordingly.