1986 P Cr (PLP)

‑‑‑Art. 4‑‑Penal Code (XLV of 1860), S. 65‑‑Patent error‑‑Sentence of imprisonment in default of payment of fine, held, could not exceed one‑fourth of maximum imprisonment fixed for fence‑‑Sentence was accordingly reduced‑‑[Sentence]. Abdus Sattar Chughtai for Petitioner. Nemo for the State. Date of hearing: 8th November, 1983. Mulazim Hussain, petitioner was convicted on 27‑12‑1982 under section 4, Prohibition Order (Enforcement of Hudood) Ordinance, 1979 and sentenced to two years' R.I. and fined Rs.2,000 in default to undergo one year's R.I. further. Convict's appeal was dismissed on 24‑8‑1983. He has come up in revision.

2. On search of Mulazim Hussain's person 100 grams Charas and 40 grams opium were recovered by a raid party on 26‑9‑1981 at about mid‑night when he was on his way near the Octroi Post Gadola Road, Bhakkar. A complaint was drafted, recovery was attested by the members of the raiding party, the case registered and petitioner prosecuted in due course, who denied guilt and ascribed the case to enmity. He led no evidence in defence.

3. The main submission made on behalf of the petitioner was that the recovery was not attested by any member of the general public of the locality. This argument does not hold good because the recovery was not effected from a building. The recovery was effected at mid‑night while the petitioner was on his way on the Godla Road. It may also be added here that a police official is as good a witness as any other A person, unless it is shown that he had mis conducted the investigation which is not so in this case. On the contrary, I find that the police and the Excise officials have no motive to falsely rope in the petitioner is a case of this nature. Simply because some of the witnesses appeared against the accused in another case against him of the same type, would not mean that they were inimical towards him. They are public servants and have acted in discharge of their duty. The case is overwhelming against the petitioner, his conviction is, therefore maintained.

4. There is a patent error in the sentence awarded in default of the payment of fine, because under section 65 of the Penal Code, a sentence of imprisonment awarded in default of payment of fine cannot exceed one‑fourth of the term of imprisonment which is the maximum fixed for the offence. In the instant case, the maximum sentence provided for the offence is two years, therefore, in default of payment of fine the trial Court could not have awarded a sentence of more than six months. Consequently the same is reduced to six months. The revision petition is otherwise dismissed. The sentence in this case will run concurrently with the sentence passed against the petitioner on the same day in case. F.I.R. No. 201, dated 19‑9‑1981. S.A. Petition dismissed.