1. Rahmat Hussain Jafferi, J.--This judgment will dispose of Criminal Appeals Nos, 244, 257, and 290 of 2003 as they arise out of a common judgment.
2. The present appeals are directed against the judgment dated 16.8.2003 passed by the Special Court (C.N.S.) Karachi Division in Special Case No, 91/2002 State v. Muhammad Iqbal and others.
3. Under the impugned judgment the learned judge convicted the appellants Muhammad Iqbal and Nadeem Ashraf for offence punishable under Section 9(c) of Control of Narcotic Substances Act, 1997, (hereinafter referred to as the Act of 1997) and appellant Zareef Khan for offence punishable under Section 15 of the Act 1997 and sentenced each of them to suffer imprisonment for life and fine of Rs, 2 million or in default thereof to suffer R.I for two years with benefit of Section 382-B Cr.P.C.
4. Whereas the co-accused Javed Iqbal was acquitted.
5. On 21.2.2002 at 6.00 a.m., the complainant Saud Hassan Khan, Intelligence Officer Directorate General Intelligence and Investigation Karachi lodged the F.I.R., which reads as under: The Director of Intelligence and Investigation [Customs and Excise] Karachi received a credible information that syndicate of smugglers operating from Dry Port Faisalabad will Smuggle Charas under the garb of export consignment, Muhammad Iqbal and Nadeem of M/S Dream Tex International, ,Naseer Town, PL 120, Street 10 Nisar Colony, Faisalabad. Export Registration No, 010836 with Laid Aslam and Aitibar Shah @ Iqbal Shah associates who have abetted, connived and assisted in Crime, adopted a novel modus operandi by concealing the charas in the export consignment of garments shipped to M/s Van De Hear Import and Export B.V., School street-86, 3881, T.T. Putten Holland via Antwerp vide Shipping Bill No 12222 dated 15.2.2002 transported on Troller No, LSA-1833 driven by Abdul Rashid driver of Al-Zakiria goods vide ETM No, 6453 dated 15.2.2002 and was cleared from Faisalabad Dry Port by M/S Pacific International LHAL No, 176/97 declared to be 416 cartoons of 100% cotton dyed Dangries, 7488 pieces. In pursuance of this information, a team was constituted under the supervision of Mr. Khalid Mehmood, Assistant Director to intercept the 20 ft. Container No, HLCU-219410-7. Initially the consignment was to be shipped from East wharf, K P T Karachi. While the team was mounting surveillance at East Wharf Karachi, it was informed by the informer that the consignment was rerouted to Port Muhammad Bin Qasim to avoid interception. Having such information, the team rushed to Port Muhammad Bin Qasim to intercept the consignment. On 20.2.2002, the Port Qasim authorities have informed that the Container No, HLCU-219410-7 has been loaded in the vessel M.V. Saifmarine Kimly schedule to depart to its destination. However, with great efforts the aforesaid container was offloaded from vessel with its contents declared as cotton garments [Dangries] in the export documents which were produced by Muhammad Ashraf s/o Muhammad Shafi represented of Faisalabad Dry Port trust Karachi office whereas the triplicate copy of shipping bill was procured from S.P.O. gate preventive collectorate Port Muhammad Bin Qasim. In presence of two witnesses namely Muhammad Ashraf s/o Muhammad Shafi and Shuja Salam s/o Qamar Salam Kiani the container having Custom Seal No, 6075 and Faisalabad Dry Port Seal No, 025592 was thoroughly examined at Port Bin Qasim on 20.2.2002 which led to the recovery of smuggle Charas in 81 cartoons 14 slabs in each cartoon with marks "Chad Tara' concealed/wrapped in cellophane and 200 cartoons of Raw Charas 16 pieces in each cartoon totaling 6438 pieces packed and export packing and garments [Dangries 1450 pieces in 90 cartoons. The Charas was weighed in presence of the witnesses and the grossed weight comes to be 7940 kg. Net weight 7000 kg [Approximately]. There three representative samples of each quality of charas weighing 20 grains each were drawn and sealed for its chemical examination, signature of witnesses and Chudhiry Muhammad Afzal Manager, Faisalabad Dry Port trust, Karachi have been obtained over it. The two samples of smuggled charas have also been drawn from the seized charas as Courts exhibit, which were sealed and also duly signed by the witnesses.
6. The 281 cartoons of charas, Export/shipping documents with sealing certificate, Container No, HLCU-219410-7, 90 cartoons of cotton dyed garments, 1452 pieces and two Seal Nos, 025592 and 63735 were seized against proper mashirnama and inventory prepared on the spot dually. signed by the witnesses and Chudhiry Muhammad Afzal s/o Ghulam Muhammad Manager Faisalabad Dry Port Karachi office. In the absence of the accused Javed Iqbal and Nadeem the notice under Section 171 of the Customs Act, 1969 has been served upon to the Chudhiry Muhammad Afzal s/o Chudhiry Ghulam Muhammad, Manager Faisalabad Dry Port trust, Karachi office. The role of the concerned Customs officials posted at Dry Port, Faisalabad and Faisalabad Dry Port Trust Authority officials would be ascertained after indepth investigation and procurement of evidence. Hectic efforts are continued to arrest the absconding accused persons.
7. FIR is lodged accordingly. (Saud Hassan Khan)
8. Complainant.
9. The Customs authorities are usual investigation challaned the appellants and acquitted accused in the Court where the appellants were convicted and the co-accused was acquitted under the impugned judgment. The appellants were dissatisfied with the said judgment therefore they have preferred the present appeals.
10. We have heard the advocates for the appellants, standing counsel for the State and perused the record of this case very carefully.
11. During the hearing of the appeals, the appellant Zareef Khan moved an application to examine present Supervisor, Dry Port Faisalabad at Karachi as additional evidence. The learned Special Prosecutor also moved an application to examine two witnesses to produce the samples of contrabands taken at the time of recovery and samples and memo of collection of samples taken on 20-10-2003 before the destruction of the remaining case property. Both the applications were allowed and. the case was sent to the trial Court for recording the additional evidence. After recording the said evidence, the required material has been sent to this Court. Thereafter we have again heard the parties counsel at length. We have One through the evidence available on the record and considered the arguments advanced by the counsel and find that the evidence of the witnesses reveals that on 15.2.2002 the container in question was stuffed with 416 cartoons containing garments. The Customs officials checked the said container at Faisalabad Dry Port. The exporter, clearing agent and other officials were present and the container was loaded in a trolley. The container left the Faisalabad Dry Port for Karachi. In the meantime, the Customs intelligence officials Karachi on receipt of spy information that huge quantity of narcotics would be transported from Faisalabad Dry Port and would reach at East Wharf Karachi became alert. On 20.2.2002, the Customs officials came to know that the said consignment was rerouted to Port Bin Qasim. Therefore, the Customs officials went there and found the said container already loaded in a ship therefore they moved an application to the concerned authorities for offloading the container, which was allowed. The container in question was offloaded from the ship. the customs officials found the seals intact. The container was opened and found 7,000 kg of charas in 381 cartoons while some cartoons were found missing.
12. The shipping bill shows 100% cotton garments were being exported. However in 90 cartoons cotton "garments were lying. On examination of the Charas, it was found that the charas was of two qualities: one in the shape of slabs and another in the shape of raw charas. Three pieces from each quality of Charas were drawn as samples for sending them to chemical analyzer for examination and report. The Customs officials prepared such mashirnama. The container alongwith its contents was brought to their office. After six days of recovery of the charas viz 26.2.2002 the surveyor inspected the container and he found a patch 48" x 20" welded on front wall of the container which was externally rusted and corroded. Again, the container was resurveyed on 6.3.2002 at the office of customs officials situated at KDA Scheme No, 1 Karsaz Karachi. The said report reads: "We found that right door handles locking retainers had been cut in such a way that the seals applied after loading. were not broken. This way the container could have been opened and any adjustments within the container could have been carried out Latter the retainers had been Joined by welding which fully visible from the front, but when the retainers were examined from the side and rear, it was obvious that they had been cut and re welded. Front portion of the retainers had been dressed upon in such a way that the welding was not visible". The samples drawn at the place of incident were sent to the chemical analyzer for examination report. However, the chemical analyzer reported that he had received only two samples containing 10 grams of charas in each packet and he found the same to be charas. The entire material of both the packets was consumed in the chemical examination.
13. The learned advocates for the appellants have emphasized that the property sent to the chemical Analyzer was quite different from the samples prepared from the property at the place of the incident as it is neither matching which the number of the samples nor with the quantity of the charas. They contended that according to the evidence the Customs Officials secured three samples from each group of charas, totaling six packets of charas containing 20 grams of charas in each packet which were sent to chemical analyzer but, the chemical analyzer received only two packets containing 10 grams of charas and when this drawback was argued at the time of their earlier arguments the prosecution in order to fill the gap has produced four packets which were prepared afterwards to fill the gap in the prosecution case therefore the same cannot be relied upon nor it ,is an authentic property. On the other hand, the learned Standing counsel has argued that six samples were drawn at the initial stage for sending the property to chemical analyzer but only two packets were sent therefore the remaining property was produced in the Court through the additional evidence. He has further stated that the property was not tampered with nor different property was sent to the chemical analyzer for examination and report.
14. We have given due consideration to the arguments and in order to appreciate the same we have examined the evidence very minutely and find that the complainant and mashirs have deposed that they prepared three samples of charas from each quality and the samples were sent to the chemical analyzer for examination and report. From their evidence, it is clear that all the six packets were sent to the chemical analyzer. They haye not stated that out of these six samples only two packets were sent to the chemical analyzer. It appears that when the learned advocates for the appellants pointed out this drawback in the evidence, the prosecution have tried to fill the gaps by producing the four packets before the Court in their additional evidence. Furthermore, it is the case of the prosecution that three samples, each of 20 grams of charas were drawn from each quality of charas and put them in six packets and then the same were sent to the chemical analyzer.
15. However, the chemical analyzer report chows that he had received only two packets containing 10 grams (not weight) as property in each packet. Thus, the property received by the chemical analyser does not tally with the property sent by the Customs Officials. Thus, it has not been proved beyond reasonable doubt that the property received by the chemical analyzer was the same property, which was sent by the investigation officer. This has adversely affected the prosecution case.
16. The prosecution knew that the property sent to the chemical analyzer was not tallying with the property received by him, in spite of that they did not care to send the samples drawn from the entire property before its destruction to the chemical analyzer for examination and report so as to prove that the remaining property was also chars. If the report of chemical analyzer is taken out of consideration being in respect of different property from the property of the present case then there is no report of chemical analyzer to show that the property secured from the container was chars.
17. The prosecution have set up their case that the huge quantity of charas was being transported in the container containing cartoons of garments. After the recording of evidence, the prosecution have change their stand as the Standing Counsel has argued that Customs Officials checked the property at Faisalabad Dry Port, which was found to be in perfect order therefore the container was sealed. When the property was opened at the Port Bin Qasim on 20.2.2002 the seals were intact.
18. However, the surveyor, who surveyed the container found that the container was tampered with as the handles of the container and doors were re welded. In this background, he has argued that the container was tampered with in between. Faisalabad and Port Bin Qasim If the stand taken by the prosecution is taken into consideration, then the prosecution is required to first, prove that when the container reached at Faisalabad Dry Port, it had no weld patch or the doors were not re-welded. For that purpose, the investigation officer should have examined the persons from whom the container was obtained, but he did not care to collect the said evidence by recording the statements of the concerned persons. At least he should have recorded the statements of Customs officials who inspected the container at Faislabad Dry Port and obtained some clarification with regard to the above point. However, the investigation officer did not make any efforts to collect such evidence. It is further pointed out that the surveyor P.W. Ghulam Mustafa inspected the cartoon twice: one on 26.2.2002 and second on 6.3.2002. In the first inspection the surveyor noticed only a patch of 48" x 20" on the front wall of the container but he could not notice the re-welding of doors which he noticed on his second inspection. From 26.2.2002 to 6.3.2002, the container was placed at the Office of Customs situated in KDA Scheme No, 1, Karsaz, Karachi.
19. The learned advocates for the appellants have argued that Customs officials are involved in the racket of Smuggling of charas, therefore the container was tampered with by the Customs officials which can be gathered from the contents of the FIR, as the complainant had stated that the role of Customs officials was required to be investigated. They further stated that the responsibility of the accused appellants, who are exporter and clearing agent ended when the property was checked at Faisalabad Dry Port by the Customs Officials and thereafter the stuffing the cartoons of garments in the container and sealing the same that were found to be intact at the time of opening of the container. They have further argued that the prosecution have not lead any evidence to show any conspiracy or abatement of the appellants with the real culprits and that if somebody else has committed the offence on the way than the appellants cannot be held responsible for the offence. The learned Standing Counsel could not point out any conduct of the appellants or evidence showing any conspiracy of commission of offence of the real culprits with the appellants. He also could not point out any evidence to show that the appellant had shown any undue interest in the consignment when the same was being transported from Faisalabad to Karachi. He also could not point out any conduct of the appellants or evidence of abetement of the appellants with the driver of the vehicle on which the container was being transported. Without any piece of evidence on the point of conspiracy or abatement, connecting the appellants with the commission of this crime they cannot be held responsible if somebody else, had put charas in the consignment on the way after tampering with the container. Furthermore, the prosecution has not alleged that the export documents were forged or were not in proper order nor they have alleged that when the cartoons were stuffed in the container at Faisalabad Dry Port, they contained charas.
20. On the contrary the case of the prosecution is that when the cartoons were loaded in the container, at that time they were in perfect order and it accordance with the export documents because the same were checked by the Customs Officials who found the same in perfect order and the container was sealed, which seals were found intact at the time when the container was offloaded from the ship and the contents were inspected at Port Bin Qasim Karachi.
21. After going through the evidence, we of the considered view that the prosecutor did not properly handle the case at the time of trial, as he did not brought the required evidence on the record resulted in recording of the additional evidence. The investigation officer also did not investigate the case properly, as he did not collect the required evidence, which resulted in the present situation. Thus, the case has become doubtful against the present appellants. Therefore, they are entitled to the benefit of doubt, which was accordingly given to them at the time of passing short order.
22. Above are the reasons of four short order dated 22.12.2004 by which we had allowed the appeals.