1. ' Appellant above-named, being aggrieved by judgment dated 5th May, 1983 of learned Special Judge (Customs and Taxation), Karachi, in Case No, 220/82, by which appellant has been convicted under section 156 (5) (8) of Customs Act, 1969, and sentenced to suffer S. I. For 18 months and to pay fine of Rs, 1,00,000 or in default to suffer further S. I. For one year, has preferred the above appeal on the following facts and grounds :- ' The prosecution case briefly is that on 18th November, 1982 at about 12-30 p. m. The aforesaid appellant was in the Departure Hall of the 'Karachi Airport. She was due to leave for Copen-Hagen by S. A. S. Flight No, S. K.-976. She completed the briefing formalities and also underwent the process of immigration, when the Customs Officer Sarfraz Ahmed, who was keeping watch on the movements of the appellant intercepted her. The appellant was having with her a suit-case of ordinary make. It was duly tagged. The Customs Officer enquired from the appellant, if she was carrying any contraband article or narcotic with her and the appellant replied in the negative. The Customs Officer was not satisfied with such declaration of the appellant. He called S. T. H. Zaidi and Ghulam Nabi Shah to act as mash irs and in their presence he opened the suit-case with the keys which he obtained from the lady appellant. The suit-case apparently had wearing apparels. The Customs Officer however felt that the bottom of the suit-case was somewhat raised and such bulge of the bottom created suspicion. Consequently the Customs Officer opened the bottom of the suit-case and found eight polythene bags secreted under such cover of the bottom. The polythene bags contained heroin powder. Inspector Karamat Ali Hussain was also present. The Customs Officer seized the offending powder and also secured from the possession of the appellant her Passport (Exh. 7-A/1), Airline Ticket (Exh. 7-A/2), Boarding Card (Exh. 7-A13) and claim tag (Exh. 7-A/4). He also seized the baggage tag (Exh. 7-A/5) and the keys of the suit-case (Article A). The Preventive Officer also found one booklet having photograph of All Quli Mardani Chaharlang (Exh. 4-A) and secured it. He prepared such mashirnama (Exh. 6-A). The two mashirs signed this mashirnama. The Preventive Officer then lodged the report ((Exh. 7-C). The appellant and the property were handed over to I and P Branch where on 19th November, 1982 notice under section 171 of the Customs Act (Exh. 7-B) was served upon the appellant. The samples of the powder were sent to the Customs Laboratory, where these were examined by Chemical Examiner and he issued the report (Exh 8-A). In his opinion, out of eight samples received for test, six samples on examination were found to be heroin of Technical Grade of brownish colour. The remaining two samples were also of Technical Grade, but of dark colour. The investigation was completed by Sohail Naqi Khan, Preventive Officer and after finalisation of the investigation he challaned the appellant in Court. Ali Quli Mardani Chaharlang was shown as absconding co-accused.
2. ' At the trial she pleaded not guilty to the charge under section 156 (1) (8) of the Customs Act framed against her.
3. ' The prosecution in order to prove their case against the appellant examined P. W. 1, Rashid Amin Siddiqui, Manager Spring Hotel, Karachi (Exh. 4), P. W. 2 Ameer Ali, Sales Representative of Gerry's Travel Agency (Exh. 5), P. W. 3 S. T. H. Zaidi, Senior Traffic Officer, S. A. S. (Exh. 6), P. W. 4 Sarferaz Ahmed, Preventive Officer (Exh. 7) and P. W. 5 Sohail Naqi Khan, 1.
0. (Exh. 8).
4. ' In her statement recorded under section 342, Cr. P. C. The appellant admitted the recovery of the powder from the bottom of her suit-case, but stated that she had no knowledge, that such powder was concealed in the false bottom of the suit-case. She denied that she had already checked in the briefing formalities, when her suit-case-was- searched. She maintained that the search was made first and then her briefing was made. She admitted the service of notice under section 171 of the Customs Act. She stated that one notice was served upon her at the Airport and the other was given to her at the Customs House. Her case was, that she had come to Pakistan with absconding accused Ali Quli Mardani Chaharlang, an Iranian national to have holidays at his instance. After three days of her stay in Karachi she told Ali Mardani, that she could not stand the heat of Karachi and that she wanted to return back. Ali Quli Mardani agreed to her demand. He obtained her passport and arranged the Airline Ticket for her. On the next day Ali Quli Mardani asked her to be ready at once as the flight was to leave within half an hour. All Quli Mardani then packed her baggage. She and Ali Quli Mardani in a taxi left for Airport. She disclosed that when she had come to Pakistan, she had a small suit-case. While she was returning she had told Ali Quli Mardani that she had some gifts to offer to her friends in her country. Ali Quli Mardani then arranged for her the present suit-case. She reached the Airport in taxi and at the Airport Ali Quli Mardani left her and then she was intercepted by Customs Officer Sarferaz Ahmed. As mentioned above she stressed, that she had no knowledge that the suitcase which was provided to her by Ali Quli Mardani had false bottom and that some polythene bags were concealed therein.
5. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed, as herein-before mentioned and consequently the appellant has filed the above appeal on the grounds mentioned in the memo. Of appeal.
6. ' The learned Advocate for appellant in support of the above appeal submitted as under :-
(1) That the learned Judge has neither appreciated the facts nor the law involved in the case.
(2) That even the factum of the "stuff" allegedly recovered from the common-bag of the appellant and the absconding accused, being contraband has not been proved through legal evidence.
(3) That only the certificate of the so-called expert of the Customs Department was taken into account for the purpose of conviction.
(4) That apart from tbe legal aspects mentioned above, the appellant's defence right from the investigative stage down to her statement under section 342, Cr. P. C. Was uniform, namely that the bag in question belonged to the absconding accused (Ali Raza), who was booked for the same flight and who conveniently slipped away from the airport, and that she was not aware of the stuff allegedly secured from the aforesaid bag.
(5) That the appellant is hardly twenty years of age and has an unsullied record.
(6) That stuff allegedly recovered from the bag at the airport was not sealed on the spot and as such Chemical Examiner's Report even if validly admitted, is of no use to prosecution for proving, that the stuff in question was in fact heroin.
(7) That there was inordinate delay in lodging of F. I. R. Which has not been explained satisfactorily.
7. ' In view of above facts, learned counsel for appellant submitted, that prosecution has failed to establish its case beyond reasonable doubt. Learned counsel relied upon cases reported in PLD 1981 Kar. 19 5, PLD 1982 Kar. 352, 20 Cr. L J 1420, 35 Cr. L J 700 and AIR 1935 Ag.
8. 82.
9. ' The learned counsel for the State on the other hand submitted, that he was fully supporting the impugned judgment as appellant in her statement admitted recovery of stuff in question and consequently non-sending of the stuff or sealing was immaterial. Delay in F. I. R. Is also not material in view of the statement of appellant under section 342, Cr. P. C.
10. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R. And P. Of the learned trial Court and impugned judgment as well as cases cited by the learned Advocate for appellant.
11. ' The appellant in her statement under section 342, Cr. P. C. Had not denied recovery of certain bags from the false bottom of the bag, which was handed over to her by one Ali Raza her friend, who according to prosecution disappeared from the airport. In view of this the alleged delay in lodging of F. I. R. Does not adversely effect the prosecution case in any way. As far as non-examination of the chemical examiner in respect of his report is concerned, it is clear from the record, that the appellant had made no request for calling the chemical examiner for cross-examination and consequently the learned trial Court was fully justified in taking on record as well into consideration the chemical examiner' report Exh. 8-A, under the provisions of section 510, Cr. P. C. The contention of the learned Advocate for the appellant, that the said report be ignored as the chemical examiner in question was not examined, in' my opinion has no force at all in view of the admitted fact, that appellant never demanded calling of the chemical examiner and for his cross- examination and as such the said report cannot be discarded on this ground or on any other ground as said report was rightly exhibited under section 510, Cr. P. C. By this Court. This view of mine is fully supported by case reported in (1934) 38 Cr. L J 700 and I am in respectful agreement wit the said judgment, for the reasons given therein.
12. ' I have carefully gone through the statement of the appellant recorded under section 342, Cr. P. C.
13. By the learned trial Court and nowhere I find that the appellant admitted, that the stuff. Recovered from the bag in question was in fact heroin (powder) as alleged by the prosecution. In this connection I would like to repeat the question that was put to the appellant and answer she gave in reply to the said question :- "Q. -It is alleged that in presence of mashirs S. T. H. Zaidi and S. Ghulam Nabi Shah the Customs Officer then searched your suitcase, which was duly tagged and recovered 4 Kgs. Of heroin powder kept in 8 ceylophene bags and concealed in the false bottom of the suit-case, what is your reply ?
14. A.-It is correct that my suit-case was checked. It was opened. It contained 8 ceylophene bags, and were found concealed in the false bottom but I did not know what stuff these ceylophene bags contained. This bag was given to me by Ali Mardani outside the Airport."
15. ' In view of the above reply of the appellant, it was the duty of the prosecution to have proved conclusively, that the stuff recovered from the bag of the appellant was in fact heroin, as alleged by the prosecution. For this, the prosecution has relied upon Exh. 8-A, the Chemical Examiner's report. It may be noted, that in this Chemical Examiner's Report, nowhere it is mentioned, that the parcels sent to the Chemical Examiner were sealed parcels. On the contrary P. W. 4 Sarferaz Ahmed, who actually searched the bag and recovered stuff in question, in this cross-examination admitted, that he had not put the said packets recovered by him into sealed parcel nor he sealed the stuff himself thereafter. Similarly P. W. 5 Sohail Naqi Khan, the Preventive Officer in his cross- examination admitted, that he saw the heroin in question for the first time on 22nd November, 1982 i. e. 2 days after the seizure in the Customs warehouse, which were in the cloth bag and he delivered samples thereof to the Customs Laboratory on 24th November, 1982, which were sealed.
16. However, he admitted, that on 21st November, 1982 he had gone to the Customs warehouse, but the heroin was not seen by him on the said date. It is clear from the statements of these two prosecution witnesses, that it is not clear, who actually sealed the alleged samples of heroin after seizure and when and where. However the chemical examiner's report Exh. 8-A does not mention, that 8 small bags received by them were actually sealed bags. In the face of such evidence on record, it cannot be said, that the stuff actually recovered on 18th November, 1982 from the bag which was found in possession of the appellant was same stuff, which was sent to the chemical examiner for testing. In view of this Chemical Examiner's B Report Exh. 8-A loses its importance, as it cannot be said with certainty, that the stuff actually seized on 18th November, 1982 was in fact sent for Chemical Examination to the Chemical Examiner and consequently in my opinion prosecution has failed to establish beyond reasonable doubt, that the stuff actually recovered from the bag found in possession of the appellant was in fact heroin. In this connection cases reported in PLD 1960 Kar. 674, 1972 P Cr. L J 478, (1925) 26 Cr. L J 1420 and AIR 1955 Raj. 82 fully support the conclusions arrived at by me in respect of identity of the stuff seized from the bag alleged to be in possession of appellant and the stuff actually sent to the Chemical Examiner, for which Chemical EXaminer gave his report as Exh. 8-A. In view of this prosecution has failed to establish, that Chemical Examiner's Report Exh. 8-A is C in respect of stuff, which was actually recovered from the bag, which was found to be in possession of the appellant and therefore, prosecution has failed to establish beyond reasonable doubt its case against the appellant, on this ground alone.
17. ' Therefore, I allow the above appeal and set aside conviction and sentences awarded to the appellant by giving her benefit of doubt and direct that she may be released forthwith, if not required in any other case.