P L D 1967 Karachi 574 (PLP)

SHAUKAT ALI, J. ‑The facts briefly are that on the 12th of September 1963, Police Inspector Iqbal Hussain Rizvi, S. H. O., Golimar Police Station, on a spy infor mation organized a raiding party. At about 11 p.m. the same day he saw the petitioner Abdul Sattar standing near the cycle shop known as 'Jhugan Khan Cycle Mart'. On the basis of description furnished to the Inspector he detained and searched him. On his personal search four seers of contraband opium was recovered in the presence of Faqir Muhammad and Ashraf Ali Mashirs. On the basis of this recovery a case under the Opium Act was registered. The petitioner was put under arrest and on his personal search a key was recovered. He was interrogated and he pointed out a place where he had kept his stock of contraband opium and charas in the presence of Faqir Muhammad and Ashraf Ali Mashirs. The petitioner pointed out a locked room. The lock was opened and a: a result of search one and a half maunds of opium and ten seers of charas were recovered. A separate case under section 43(3) of the Abkari Act and 9(a) of the Opium Act was registered. ‑

2. The petitioner denied all the prosecution allegations against him. No evidence was called in defence.

3. The learned trial Magistrate Mr. Anwar M. Sheikh, found the petitioner guilty on two counts under section 9 (a) of the Opium Act and ordered him to suffer one year's R. I. and a fine of Rs. 1.000 on each count. In default of payment of fine to undergo further three months' R I. on each count. He also held him guilty under section 43 (3) of the Abkari Act and ordered to undergo R. I. for one year and a fine of Rs. 1,

000. In default of payment of fine to undergo further three months' R. I. All the substantive sentences were made to run concurrently.

4. On appeal Mr. Mehdi Ali Siddiqi, Additional Sessions Judge, Karachi, by his order dated the 17th August 1965, upheld the conviction on first count under section 9 (a) of the Opium Act and maintained the sentence of one year's R. I. and a fine of Rs. 1,000 and set aside the convictions and sentences on the second count of the Opium Act and section 43(3) of the Abkari Act.

5. The learned counsel for the petitioner attempted to argue that one of the material prosecution witness, namely, Faqir Muhammad, was not examined. According to him, the presump tion is against the prosecution and it would not be safe to base conviction on the testimony of Ashraf Ali, who is a stock witness of the Police. Secondly, it was argued that the recovery of the opium had been bifurcated and planted on the person of the petitioner to show his conscious possession. It is true that the prosecution did not examine Faqir Muhammad and this Court is entitled to draw a presumption that if this witness had been examined, he would not have supported the prosecution q case, but this would not help the petitioner, as the prosecution is not bound to examine each and every witness cited in the indictment of the charge‑sheet. It is correct that Ashraf Ali P. W. who is a member of B. D., had admitted that he appeared in four or five cases on behalf of the prosecution, but that by itself is not enough to dub him as a police stock witness. The learned counsel in support of this assertion relied on Abdul Samad v. State (P L D 1964 S C 167). I have perused the judgment carefully. This judgment is not applicable to the facts and circumstances of this case and is of no help to the defence. There is nothing on the record to substantiate the plea of the learned counsel for the petitioner that these was a bifurcation of the recovery to show conscious possession in view of the consistent evidence of recovery on the file.

6. I have carefully gone through the evidence on record and find that, the defence did not suggest any enmity or ill‑feeling on the part of Iqbal Hussain Rizvi and Ashraf Ali and the learned defence counsel could not find anything whatsoever to show against these two witnesses. I and Ashraf Ali have given a consistent evidence as to the factum of recovery of opium from the person of the petitioner. The testimony of these witnesses is of a straightforward character and no discrepancy has been pointed out in their statements. Both the courts below have discussed the evidence on record and properly applied their mind to the task and no misreading of evidence has been done. In these circumstances I hold that the petitioner has rightly been convicted under section 9 (a) of the Opium Act.

7. I have given my serious thought to the question of sentence and am of the view that in Excise cases not only offender's body should be mortified, but his pocket should also be burdened, because offence under Excise law results in a loss o excise revenue, besides affecting the morals and health of the nation and resulting in increase in crimes. I am of the view that a heavy sentence of fine may be preferred to a sentence o imprisonment particularly in cases of first convictions for infraction of the Excise law, but it may be remembered that the imposition of petty fine would encourage gambling instinct.

8. In this case the petitioner had already suffered about fifteen days' hard labour. He is on bail since 26th August 1965. Therefore. I would not like to send him back to jail. In this view of the matter, I would reduce the sentence of the petitioner to the one already undergone and a fine of Rs. 5,000 (Five thousand). In default of payment of fine to undergo fifteen months' hard labour. With this modification the revision petition is dismissed. K. B. A. Petition dismissed.