ALI BAQAR NAJAFI, J:- Through this single judgment, both the above titled appeals are decided.
2. Through these appeals under section 48 of Control of Narcotic Substances Act, 1997, the judgment dated 20.03.2019 passed by the learned Additional Sessions Judge/Special Judge (CNS), Lahore in case FIR No.01/2018, dated 10.01.2018, under section 6, 7, 8, 9(c), 14, 15 & 16 of CNSA, 1997 registered at Police Station Investigation & Prosecution Cell, Customs House, Lahore has been challenged whereby the appellant, namely, Tereza Hluskova was convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to 08 years 08 months S.I. with fine of Rs.1,13,333/- in default whereof to undergo further simple imprisonment for eight months and twenty days by extending benefit of section 382-B Cr.P.C. to her whereas co-accused Shoaib Hafeez Khan was acquitted by giving benefit of doubt. However, the State through Collectorate Custom has filed Crl.A.No.23646-2019 against acquittal of Shoaib Hafeez Khan/respondent No.2.
3. Brief facts of the prosecution case against the appellant/Tereza Hluskova as narrated by Pervaiz Ahmad Qazim, Inspector Customs, Lahore/PW-5 in complaint (Exh.PE) is that during the intervening night of 09/10.01.2018 at about 1.00 a.m., he got information from Collector, Customs (Preventive)
Lahore that huge quantity of heroin was to be smuggled through Flight No.EY242, Etihaad Airways, from Lahore to Abu Dhabi upon which the passengers of said flight were being searched by the Customs Officials. The complainant was Counter Inspector at the Customs Counter in the airport.
At about 1.35 a.m. a foreign lady arrived at his counter, after crossing ASF scanning and ANF Scanning Counter and handed over to him, her travelling documents and brownish coloured suitcase for customs clearance. The documents produced by the appellant/Tereza Hluskova reflected her name and she was asked about any contraband item like heroin in her possession or in her suitcase. She replied in negative. In presence of PWs, Din Muhammad Tahir Inspector customs/PW-7, Shahid Hussain constable Customs (PW not produced) and lady constable Naheed Akhtar (PW not produced), her suitcase was opened but he did not find anything therein except things of common use. However, he found that weight of the suitcase was abnormal; therefore, he checked the suitcase by opening/cutting its inner sheet and found off-white powder, packed in a transparent polythene bag (Theli). He tested the powder with Field Test Tube and found the same to be heroin. He weighed the recovered heroin which was found 8.5 kg and he took the same into possession, separated five grams from recovered heroin for the purposes of chemical analysis and sealed the same as well as the remaining heroin (P-1) into separate parcels. He also took into possession the brownish coloured suitcase (P-2) through recovery memo (Exh.PC) and got signatures of the appellant/Tereza Hluskova and arrested her. He also took into possession through recovery memo (Exh.PD) the other articles recovered from the appellant during her personal search. He drafted the complaint (Exh.PE) upon which formal FIR was registered. During investigation, Muhammad Ali Inspector/PW-8, the investigating officer also found involved T @ Tariq (P.O.), Aftab Anwar Bhatti (P.O), Haroon Afridi alias Khayal Wali (P.O.) and Shoaib Hafeez Khan (acquitted co-accused) as abettor and facilitator of the appellant/Tereza Hluskova.
4. After completion of investigation, the challan against both the accused, namely, Tereza Hluskova and Shoaib Hafeez Khan was submitted before the trial court. On indictment, both the accused pleaded not guilty and claimed trial. The prosecution produced nine witnesses, namely, Saleem Ahmad Malik Inspector/PW-1, Muhammad Yousaf Khan Superintendent/PW-2, Ch. Muhammad Ishaq PW-3, Usman Ashraf PW-4, Pervaiz Ahmad Qazim Inspector/PW-5, Riaz Ali Shah Inspector/PW-6, Din Muhammad Tahir Inspector/PW-7, Syed Muhammad Ali Inspector/PW-8 and Husnain Ahmad PW-9. Thereafter, the appellant/Tereza Hluskova was examined under section 342 Cr.P.C., whereby she professed her innocence and denied all the allegations levelled against her.
She did not opt to depose within the scope of section 340(2) Cr.P.C. or adduce evidence in defence.
In reply to the question "Why this case had been lodged against you and why the PWs had deposed against you", Tereza Hluskova/appellant stated as under:- "I am admittedly a foreigner lady, had come to Islamic Republic of Pakistan to study the culture of Pakistan as well as seeing the generosity of the people to study Islam as I was writing a book thereon. No recovery of any type of narcotics was effected from me. Even the alleged bag do not belong to me. The Heroin and the bag belonging to some other influential person have been planted upon me to save said person and also to show efficiency. There is no record of entry for any investigation by the I.O. in the Airport. The whole story has been concocted by the Customs Authorities while sitting in the Customs House. There are material contradictions in the statements of the PWs. What to speak of that even the person who got registered the FIR did not know as to what the said provisions are under which he has got this case registered. Even when I was shifted to the Customs House, there was no bag, either with me or with Customs Employees who were shifting me to Customs House. While I was being taken to Customs House I was told at the Airport that certain query was to be made from me but it was later on that I came to know of this plantation. I am quite innocent."
5. After conclusion of the trial, the learned trial court pronounced its verdict against the appellant/Tereza Hluskova and awarded her aforesaid punishment whereas Shoaib Hafeez Khan/respondent No.2 in Crl.A.No.23646-2019 was acquitted.
6. We have heard learned counsel for the parties and perused the record with their able assistance.
7. While scanning the prosecution evidence with a view to see the safe custody of sample parcel and the case property, it is noted that Pervaiz Ahmad Qazim Inspector Custom, the complainant (PW-5) narrated the story of complaint (Exh.PE) in the court by stating that between night 09/10.01.2018 at 1.00 a.m. he received information from Collector Customs (Preventive), Lahore that huge quantity of heroin was to be smuggled through Flight No.Ey242 Etihaad AirWays, from Lahore to Abu Dhabi. At about 1.35 a.m. the appellant after crossing ANF scanning counter appeared before the Custom Counter handed over the travelling documents and her brownish coloured suitcase for custom clearance. In view of the huge weight of the suitcase, he removed the inner sheet of the suitcase and recovered the heroin. It was weighed and found 8.5 kg out of which 5 gram was separated for chemical analysis. The recovered heroin (P-1) and the suitcase along with the parcel (P-2) were taken into possession vide recovery memo (Exh.PC). He then proceeded to Customs House, Lahore along with complaint (Exh.PE) and other documents and handed over the same to Saleem Ahmad Inspector (I&P)/PW-1 over which the FIR was registered. He then went back at the place of duty on the said Airport. Surprisingly, he did not state a word whether he handed over the recovered heroin as well as the sample parcel (Exh.PC) at the Custom House. Even he did not inform any other agency or even local police regarding shifting of the accused to Custom House in the official vehicle. Muhammad Yousaf Khan Superintendent Customs Incharge Estate Warehouse Customs House, Lahore (PW-2) stated that on 10.01.2018 at 2.00 p.m. (not a.m.) Pervaiz Ahmad Qazim Inspector (PW-5) handed over to him sealed parcels of heroin weighing 8.5 kg as well as sample parcel of 5 gram which he kept in safe custody in the Warehouse and on 12.01.2018 the said parcel was given to Pervaiz Ahmad Inspector Customs for onward transmission to the office of PFSA, Lahore which he deposited the same day. The statement of the said PW-2 did not corroborate with the statement of PW-5 who had not stated that he deposited the heroin parcel and case property to the Warehouse Custom House, Lahore. He did not even admit that he deposited the sample parcel in the office of Forensic Science Laboratory. This PW-5 had stated that he handed over the articles to Syed Muhammad Ali Inspector/Investigating Officer (PW-8) who did not state a word regarding handing over of the sample parcel by PW-5. Although, the narcotics analysis report (Exh.PM) reveals that it was 5.83 grams off white powder heroin (0.83 increased in weight of original sample heroin) with name of PW-5 in the column of the official who submitted the sample. Here it will be relevant to refer the case titled "Attaullah Vs. The State through AG Khyber Pakhtunkhwa and another" reported as 2020 SCMR 451, case titled "Mst. Sakina Ramzan Vs. The State" reported as 2021 SCMR 451 and case titled "Ikramullah and others Vs. The State" reported as 2015 SCMR 1002. Relevant extract from para 5 of Ikram Ullah's case is reproduced as under:- "It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
Relevant extract from para 3 of Mst. Sakina Ramzan's case is reproduced as under:- "The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner."
8. It is also worth mentioning that in the recovery memo the monogram was not affixed, therefore, while relying upon case titled ""Faizan Ali Vs. The State" reported as 2019 SCMR 1649 and case titled "Akhtar Iqbal Vs. The State" reported as 2015 SCMR 291, the prosecution lacunas are fatal.
9. The complainant (PW-5) has not been able to show any official document on the basis of which he was permitted to perform his duties at the airport. He admitted that the distance between Custom House and airport is 15 kilometres, then how he took almost 12 hours to reach. He stated that the Shift Incharge at the airport retained cutter, manicure and monitor and also field Test Tube Kit but he has not stated a word regarding handing over the said articles by the previous shift incharge to him. This raised question of the availability of instruments to open the suitcase and kit for testing the off white powder. According to him, the appellant was searched through Naheed Akhtar/Constable but the said lady was not produced as witness and under Article 129(g) of Qanun-e-Shahadat Order, 1984 the best evidence was withheld. According to PW-8, investigation was entrusted to him on 10.01.2018 and about 9.00 a.m. he reached the place of occurrence. He also admitted that when he reached the place of occurrence many persons had gathered but he did not ask anything from any of them. He also admitted that he did not investigate as to how and when the luggage and narcotics was shifted from airport to Custom House. He did not take CCTV footages at the airport during investigation though admitted that cameras were installed outside and inside of the airport. He admitted during cross-examination that appellant was working for some other accused as carrier but he did not make any effort to persuade appellant to narrate the name of the actual owner as a condition to become witness for tender of pardon. Besides, it is also notable that Muhammad Yousaf Khan Superintendent Customs Incharge Estate Warehouse/PW-2 could not even produce the keys to show that he in fact was the custodian of the articles contained therein. Meaning thereby that anyone could deposit anything any time in the Warehouse lying open to public.
10. In such like incident, the CCTV footages are mandatory which rule out the possibility of false implication to a good extent. Pervaiz Ahmad Qazim Inspector/PW-5 after giving the complaint (Exh.PE) in the office of Custom House went back to his place of duty without handing over the recovered narcotics. Muhammad Yousaf Khan Superintendent/PW-2 could not produce the relevant portion of the register with specific reference to receive the parcels of sample as well as bulk of heroin. The investigating officer/PW-8 did not state that he delivered the samples in the office of Chemical Examiner. The complainant should have made his statement that he delivered the sample in the office of Chemical Examiner. The complainant should have stated that he has deposited the case property in the office of Custom House. The appellant whose suitcase allegedly contained heroin was searched by Naheed Akhtar lady constable who was not produced in evidence. Such are the lacunas in the prosecution case which cannot be ignored; therefore, obviously we can safely conclude that the prosecution has failed to bring whom the guilt against the appellant.
11. In this view of the matter, the Crl.A.No.19382-2019 is allowed and sentence of the appellant/Tereza Hluskova is set aside as a result of which she is acquitted of the charge levelled against her and she be released forthwith if not required in any other case.
12. In view of acceptance of Crl.A.No.19382-2019 titled "Tereza Hluskova Vs. The State", the Crl.A.No.23646-2019 titled "The State through Collectorate Custom Lahore Vs. Additional Sessions Judge etc." having been found meritless is therefore dismissed.