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 .Of 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. Whereas the co-accused Javed Iqbal was acquitted.
4. ' 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, P.L. 120, Street 10 Nisar Colony, Faisalabad, Export Registration No.010836 with Lala Aslam and Aitibar Shah alias 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. Puttar 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 of 1997 declared to be 416 cartons 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, KPT 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 son of 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 son of Muhammad Shafi and Shuja Salam son of Qamar Salam Kiani the Container having Customs 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 smuggled Charas in 81 cartons 14 slabs in each carton with marks "Chad Tara" concealed/wrapped in cellophane and 200 cartons of Raw Charas 16 pieces in each carton totalling 6438 pieces packed and export packing and garments [Dangries] 1450 pieces in 90 cartons. The Charas was weighed in presence of the witnesses and the grossed weight comes to be 7940 kgs. Net weight 7000 kgs [Approximately].
5. Three representative samples of each quality of Charas weighing 20 grams each were drawn and sealed for its chemical examination, signature of witnesses and Chaudhry 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 Cartons of Charas, Export/shipping documents with sealing certificate, Container No.HLCU-219410-7, 90'cartons of cotton dyed garments, 1452 pieces and two Seal Nos.025592 and 63735 were seized against proper Mashirnama and inventory prepared on the spot dulay signed by the witnesses and Chaudhry Muhammad Afzal son of 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 Chaudhry 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. ' F.I.R. Is lodged accordingly.
8. (Saud Hassan Khan) Complainant".
9. ' The Customs authorities after 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 appeal.
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.
12. ' We have gone 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 cartons 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 seal intact. The container was opened and found 7,000 kgs of Charas in 381 cartons while some cartons were found missing. The shipping bill shows 100% cotton garments were being exported. However in 90 cartons 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 along with 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 seals applied after loading, were not broken. This way the container could have been opened and any adjustment within the container could have been carried out. Latter the retainers had been joined by welding which was not 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 up 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 with 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, totalling 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 packet 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 have 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 A the same were sent to the Chemical Analyzer. However, the Chemical analyzer report shows that he had received only two packets containing 10 grams (net weight) as property in each packet. Thus, the property received by the Chemical Analyzer does not tally with the property sent by the investigation officer to him. As such, neither the number of the packets nor the weight of the Charas received by the Chemical Analyzer is tallying with the number and weight of the Charas 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 Investigating Officer. This has adversely affected the prosecution case.
15. ' 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 Charas. 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 Charas.
16. ' The prosecution have set up their case that the huge quantity of Charas was being transported in the container containing cartons of garments. After the recording of evidence, the prosecution have changed their stand as the Standing Counsel has argued that the 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. 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 Karachi.
17. ' 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 welded patch or the doors,were not re-welded. For that purpose, the Investigating Officer should have examined the persons from whom the container was obtained, but he did not care to collect thesaid 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 Faisalabad Dry Port and obtained clarification with regard to the above point. However, the Investigating Officer did not make any efforts to collect such evidence. It is further pointed out that the surveyor P.W. Ghulam Mustafa inspected the carton 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 door 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.
18. ' 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 the Customs Officials' which can be gathered from the contents of the F.I.R., 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 cleaiing agent ended when the property was checked at Faisalabad Dry Port by the Customs Officials and thereafter the stuffing the cartons of garments in the container and sealing the same that were found 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 then the appellants cannot be held responsible for the offence.
19. The learned Standing Counsel could not point .Out any conduct of the appellants or evidence snowing 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 abetment of the appellant 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 not in proper order nor they have alleged that when the cartons were stuffed in the container at Faisalabad Dry Port, C they contained Charas. On the contrary the case of the prosecution is that when the cartons were loaded in the container. At that time they were in perfect order and in 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.
20. After going through the evidence, we are of the considered view that the prosecutor did not properly handle the case at the time of trial, as he did not bring the required evidence on the record resulted in recording of the additional evidence. The Investigating 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.
21. ' Above are the reasons of four short orders dated 22-12-2004 by which we had allowed the appeals.