1. I propose to dispose of the above three matters by this judgment as they arise out of the same incident, and identical points are involved.
2. These are applications under section 561-A, Cr.P.C. For quashment of the proceedings pending against the above applicants under section 2(s) 16, 178 and 156(1)8 of the Customs Act, 1969, before the learned Special Judge (Customs and Taxation), Karachi.
3. The brief facts giving rise to the present applications are that on 1-7--1986, complainant Abdul Naeem Khan, Senior Intelligence Officer of the Directorate General of Intelligence and Investigation (Custom and Excise) Karachi, lodge report, which reads as follows:-- "The staff of the Directorate General of Intelligence and Investigation (Custom and Excise) Karachi received a credible information that a large consignment of heroin powder was smuggled in a wooden box from Pakistan under British Airways Bill No. 125-40722-290 to Montreal via London on 24-5-1986 with the connivance of Customs and other agencies staff posted at Karachi.
4. The information has been passed on to Mr. Devacha Special Agent, Drug Enforcement Administration (DEA) Karachi.
5. The Special Agent D.E.A. Has communicated the information to Canadian Customs Officials Montreal Canada on 22-6-1986 to look out the wooden box bearing British Airways Bill No. 125- 40722-290 Mirable Airport in Montreal Canada On 26-6-1986 Mr. R.G. Richardson Attache (Police Liaison) Canadian Embassy, Islamabad, has informed that on 22-6-1986, the Canadian Customs have seized 31.614 Kgs. Heroin powder contained in milk cartons placed in a wooden crate bearing bill of lading No. 125-40722-290 in the name of Hussain Tariq, Nihar Muhammad son of Fazal Karim had examined the suit-case and carton and made endorsement on the application of passenger that `examined and found correct as per list and allowed the shipment'. He deliberately avoided to identify the wooden box as mentioned in the Airways Bill No. 125-40722-290 and had given the description of the suit-case and hence connived and abetted in the smuggling of heroin powder in collaboration with .The passenger Hussain . Tariq a British National who had left the country on 24-5-1986 to Montreal via London. The accused Nihar Muhammad had been arrested and Notice under section 171 of the Customs Act, 1969 has been served upon him."
6. That on 7-7-1987 another F.I.R. Was lodged by Mr. Habib-ur-Rehman, Inspector Preventive Service, Customs House, Karachi, which reads as follows:- It has come to the knowledge of this Custom House that the Canadian Customs have seized Heroin powder weighing 32 Kgs from a wooden box covered under Airway Bill No.125-4072-2290, dated 21- 5-1986, despatched to Montreal by British Airway Flight BA-146 dated 24-5-1985 under an ostensible declaration of `personal efforts handicrafts'. Pursuant upon this seizure the Custom House also felt the imperative to initiate thorough investigation as to how such a huge quantity of narcotics was smuggled out of Pakistan, and as to how the culprits were able to resort to such a heinous crime and with what modus operandi. Accordingly, investigation was assigned to the undersgined, who examined the Airline staff of British Airways and also meticulously scrutinized the relevant documents of the consignment under whose subterfuge narcotics was smuggled out of Pakistan. After preliminary investigation, it has emerged that the staff of British Airways has been found involved in the commission of offence by affixing signature on the Customs letter, which under normal procedure should have been signed by the passenger. The staff of British Airways even went on to forge the signature of passenger on the Airway Bill, which is evident from the perusal of Airway Bill. This has all the more strengthened the belief of Customs that the Airline staff of cargo office of British Airways had a hand in the conspiracy to smuggle narcotics out of Pakistan. It has also transpired in the investigation that the instructions were given to Mr. Joseph Dmello to brief Mr. Saadat Hussain Khan the procedure of getting the unaccompanied baggage processed through various channels, but instead he contacted the Superintendent Preventive Service, Terminal 111, Karachi Airport himself and got the name of Custom Officer marked for examination. This was done by him despite the fact that he was assigned some other job. Later on Saadat Hussain Khan got the package examined and sent it to their Cargo Supervisor at British Airway Cargo Shed.
7. During the course of investigation it has also been revealed that Mr. Kaleem, Cargo Manager, British Airways, Town Office, had acted in a peculiar haste and got the documents signed by his Assistant Mr. Fazal, which were hitherto to be signed by the passenger. So much so he desired that the unaccompanied baggage be sent to Karachi Airport on the very day i.e. 21-5-1986, though the flight on which it was booked was to depart on 21-5-1986. This was wilfully done, so that the contents of wooden box could be changed or the package may be replaced altogether during 21- 5-1985 to 24-5-1986, the period the wooden box/package remained under the exclusive custody of British Airways. It has also been revealed in the investigation so far carried out that the passenger named Hussain. Tariq did not leave Pakistan for Montreal by British Airways Flight BA-146. This also indicates that the so-called departure of passenger was a cover, under which narcotics was smuggled out of Pakistan in which the staff of British Airways acted as a lever to the furtherance of crime. The forgery in the documents and signing of the documents relating to the Customs on behalf of passenger shows the ill motive of the staff of Airline, which was aimed at to abet in the act of smuggling of narcotics out of Pakistan.
8. It has also transpired in the investigation that Mr. Kaleem, the Cargo Manager, British Airways surreptitiously handed over two unsigned copies of Airway bill ether to the passenger or the accomplice of smuggler and this act leads to the belief that Airway bill may also have been replaced at the time of examination of wooden box/package.
9. Thus, the accused persons cited in column 4 of F.I.R. Have committed an offence under the provisions of the Customs Act, 1969, as envisaged under column No.7, above. Accordingly the accused persons namely Fazal, Joseph Dmello and Saadat Hussain Khan have been placed under arrest.
10. Efforts are being made to arrest Kaleem, the Cargo Manager, British Airways Cargo Office, Karachi and the passenger Hussain Tariq.
11. Further investigation is in progress. F.I.R. Is lodged accordingly."
12. After necessary investigation the applicants alongwith their co-accused were challaned before the Court.
13. The applicants moved applications under section 265-K, Cr.P.C. For their acquittal but the same were dismissed by the learned Special Judge by order, dated 5-4-1988. The present applications have been filed for the quashment of the above proceedings.
14. I have heard the learned counsel appearing for the applicants, Mr. Hayat Qureshi, learned counsel appearing for the State, and have gone through the documents produced alongwith the quashment applications.
15. It was contended by Mr. Muhammad Hayat Junejo learned counsel appearing for applicant Nasir Mahmood that the name of the applicant does not transpire in both the F.I.Rs. And interim challan.
16. That however the name of the 4pplieant Nasir Mahmood was included in the second charge sheet, and the only allegation against him is that co-accused Kaleem had rang up applicant Nasir Mahmood who told him that:- "don't worry he will get him bailed through Mr. Choudhary Iftikhar:"
17. That even if the allegation made by the prosecution was accepted, then too no case was made out against the applicant.
18. Mr. Rashid Tariq Khan learned counsel appearing for the. Applicants Fazal and two others has contended that the name of applicant Fazal does not appear in both the F.I.Rs. And Interim challan.
19. That only allegation against applicant Fazal in the second challan is that he had asked some body to forge the signature, however, no evidence was available on this point. That there was no evidence against other two applicants as well regarding the alleged offence.
20. Mr. Rustom J.E. Kaikobad has contended that there was no evidence worth the name available against applicant Keneth Marshal. That even if the evidence of P.W. Mr. Joseph is accepted, yet no case is made out against the applicant.
21. Mr. Hayat Qureshi learned counsel appearing for the State, bas contended that they are not sure as to when the Heroin will be made available before the trial Court, nor he can say as to when the case will proceed. However, the case was of 1986 and he was of the view that Court may pass any appropriate order.
22. Mr. A.I Raza Preventive Officer Customs, and Khalid Mahmood Law Officer were also present and they have filed chart in Court showing the evidence which implicates the present applicants.
23. I have considered the contentions of the learned counsel. In the present case there are serious allegations regarding smuggling of huge quantity of heroin, and disputed questions of fact arc involved in this case. From the chart filed by the Investigating Office r/complainant it cannot be said at this stage that it is a case of absolutely no evidence. Looking to the circumstances of the case and the fact that the country is getting bad name for smuggling of Narcotics it will be premature to say anything, about the merits of the case at this stage. The case has not yet proceeded and it involves smuggling of huge quantity of heroin. I am of the considered view that the applications are premature and do not merit consideration at this stage, therefore, the same are hereby dismissed.
24. However, since the case is of 1986, I direct the learned trial Judge to proceed with the case expeditiously and to examine at least 4 (four) material witnesses within three months from the date of receipt of this order, and thereafter the applicants can repeat their application under section 265-K, Cr.P.C. If so advised.
25. N.H.Q./N-185/K