' Rothan Bacher, Peter son of Herman, resident of Berlin, West Germany (appellant) was convicted under section 156(1)(8) of the Customs Act, 1969 by the learned Special Judge (Federal) Customs, N.-W.F.P. Peshawar on 15-6-1988 and sentenced to seven years' R.I. With a fine of Rs,1,00,000 or in default thereof to further R.I. For a period of one year. He was also to be inflicted ten stripes. The appellant, feeling, aggrieved, has come in appeal to this Court.
2. The facts of the case are that on the basis of secret information received by the Assistant Collector, Customs and Anti-Smuggling Division, Peshawar on 5-3-1987 that a foreign national would be carrying heroin powder of foreign origin while leaving Peshawar from the Peshawar Airport. The Deputy Superintendent, Customs Mobile Squad No,1, therefore, organized a raiding party comprising of Kifayat Hussain Kaifi, Customs Inspector and other Customs officials which kept an eye on the outgoing passengers from Peshawar Airport. The appellant was seen when he arrived at the Airport and since his name was in accordance with the information received, he was taken to the office of Customs Mobile Squad No,1, Peshawar. On interrogation he disclosed that heroin powder was concealed in his rectum. He was then taken to the Lady Reading Hospital, Peshawar where he was examined by Dr. Abdul Wakil and Dr. Zamir and heroin powder allegedly of, foreign origin weighing 250 grams was recovered from the rectum of the appellant. Since the appellant could not account for lawful possession of the heroin powder he was arrested and challaned in the present case. Three samples were taken from the seized heroin and sent for chemical examination. In so far as the recovery of heroin powder from the possession of the appellant is concerned, it is conclusively established by the prosecution evidence. Ghulam Kibria, Deputy Superintendent Customs (PW.1) produced the stock register before the Court. Copy of the relevant entry is Ex.PW.1/1 whereby the heroin in question was deposited in the State Ware House. He had assessed the market value of the seized heroin as Rs,20,000.
' The assessm ent certificate issued by him is Ex.PW.1/2. In cross-examination he stated that "since the heroin in question is not manufactured in Pakistan therefore I have given my opinion in this respect that this is of foreign origin. It is correct that I have not seen the heroin in question but in this respect the Analytical report is very clear which is on the file." Dr. Abdul Wakil (PW.2) and Dr. Zamir (PW.3) stated that heroin powder weighing 250 grams was recovered which the appellant had concealed in his rectum. PW.3 stated that when they examined the appellant they noticed some hard substance inside his rectum. They wanted to remove the said substance but the appellant told them that he would do so himself. He accordingly brought out small packets one by one from his rectum which were 4 in number. Those were like plastic balloon. Kifayat Hussain Kaifi, Customs Inspector (PW.4) deposed to the facts as mentioned above and stated that the appellant was taken to the Lady Reading Hospital by the Customs officials where 4 small bags of heroin were taken out from his body which the appellant had concealed in his rectum. The heroin was taken into possession vide recovery memo. Ex.PW.4/1 and a Murasila Ex.PW.4/2 was prepared on the basis of which the present case was registered against the appellant. He stated that before taking the appellant to the hospital he was not taken to the Assistant Collector of Customs or any other officer of this rank. However, Abdur Rauf Khalid, Assistant Collector Customs himself came to their office.
But no order in writing was obtained from him about the medical examination of the appellant. The evidence of Yar Muhammad, Inspector Customs (PW5) is also to the same effect as mentioned by Kifayat Hussain Kaifi (PW4). He also deposed that the signature of the appellant was obtained by him on the notice under section 171 of the Customs Act Ex.PW,5/1. Muhammad Ismail Durrani, Deputy Superintendent Customs (PW.6) forwarded the samples of heroin powder to the Director, PCSIR Laboratory for chemical analysis. The report of the Chemical Analyst is Ex.PX .1.
3. The appellant in his defence pleaded innocence and denied the recovery of the heroin powder from his person. He stated that he was hauled up by the Customs Authorities at Peshawar Airport at about 12 noon where his flight was to leave at 12-30 p.m. He was kept at the Airport till the flight had left. He got angry and informed the Customs officials that he would take proper proceedings against them through the Embassy and that his baggage was checked but nothing objectionable was found. He was then taken to the hospital and without checking his body it was told by the Customs officials that they had found the requisite thing for involving him in the present case. He was then taken to the Customs office and kept there for three days and then sent to Jail. He further stated that he had embraced Islam during his stay in Peshawar jail and, therefore, requested for an early decision of his case. He, however, refused to give evidence on Oath in disproof of the allegations made against him in the prosecution evidence. He also did not want to produce evidence in defences
4. The learned trial Court by placing implicit reliance on the prosecution evidence referred to above convicted and sentenced the appellant as stated above.
5. In support of the appeal it is contended that there is no evidence worth the name that the seized heroin was of fore;bn origin; that Kifayat Hussain Kaifi, Inspector Customs stated that three samples each weighing 10 grams were taken from the seized heroin which he had himself taken to the Chemical Examiner. But the report of the Chemical Examiner shows that only one sample' weighing 10 grams was forwarded for chemical analysis; that before searching the person of the appellant under the provisions of section 158 the Customs Officer did not inform him about his right to be taken to a gazetted officer of Customs or Magistrate and thus the provisions of section 159 and also section 160 of the Customs Act had been violated because under the later section it was essential that any officer of Customs not below the rank of the Assistant Collector having satisfied himself that the appellant had secreted inside his body the cotraband heroin should have directed that he should be screened or X-rayed but no such order was made. The other contention is that section 156(1)(8) of the Customs Act had been wrongly applied because the appellant did not attempt to smuggle the heroin powder out of Pakistan. The aforesaid contentions of the learned counsel. Fcr the appellant are vehemently opposed by the learned counsel appearing for the State.
There is no satisfactory evidence on the record to show that the seized heroin was of foreign origin.
Ghulam Kibria, Deputy Superintendent Customs (P.W. 1) stated that since heroin is not manufactured in Pakistan, therefore, in his opinion the seized heroin was of foreign origin. Strangely enough, he said so without seeing the heroin in question and based his opinion merely on the report of the Chemical Examiner. He failed to give reasons for forming this opinion. Obviously, clause (8) of section 156(1) of the Customs Act is to apply to cases which fall under the definition of "smuggle" as given in section 2(s) of the Customs Act whereunder smuggling means importation or exportation of goods secretly without payment of duties or in violation of any prohibition imposed thereon. Since there is no evidence worth the name that the seized heroin falls within the definition of smuggled goods it is difficult to hold that the prosecution had succeeded in proving its case within the meaning of section 156(1)(8) of the Customs Act. In Taza Khan etc. v. The State (1984 PCr.LJ 1308) it was held that although the possession of charas and heroin may itself be an offence under the excise and other laws relating to narcotics but to support a conviction under the provisions of the Customs Act it is necessary for the prosecution to show that the narcotics were of foreign origin or they could be reasonably suspected to be so. In the case in hand neither it is shown that the heroin was of foreign origin nor that it was suspected to be so. Furthermore, the Chemical Examiner's report showing that the seized substance was heroin was not put to the appellant in his examination under section 342 Cr.P.C. Similarly, the argument that the provisions of sections 159 and 160 of the Customs Act had not been complied with is not without force. Under section 159 of the Act it was incumbent upon the Customs Officer before searching the person of the appellant under the provision of section 158 to inform him about his right to be taken to a gazetted officer of Customs or Magistrate and if he had so desired he should have been taken immediately to the. Nearest gazetted officer of Customs or Magistrate before subjecting him to personal search. It was also essential under section 160 of the Customs Act that in case an officer of Customs not below the rank of Assistant Collector of Customs had reasonable grounds for believing that the appellant had secreted in his body any goods liable to confiscation he should have directed him to be screened or X-rayed by making a specific order to that effect. In Syed Abdul Nabi v. The. State PLD 1988 Lah.146 it was held that:- "...P.W .1 had the right to search the appellant under section 158 of the Customs Act, if he had first informed the appellant that he had a right to be searched before a gazetted officer of Customs or a Magistrate, if he so desired, and the appellant had waived such a right... Since neither of the Customs Officers informed the appellant of his right, the search was illegal. Even otherwise, the Deputy Superintendent and the Inspector of Customs arc not gazetted officers. It is admitted by the learned Standing Counsel for the Federal Government, that both of them are not gazetted officers of Custom. The search, therefore, was illegal."
' It is also in evidence that the appellant intended to take domestic flight from Peshawar to Karachi and from there he wanted to go to Nepal. The appellant, however; stated that after going to Karachi he wanted to stay there for the night and on the following day he was to take the flight for going to Kathmandu (Nepal). Thus the possibility that he might have disposed of or otherwise used the heroin at Karachi cannot be excluded. It is obvious that the appellant was apprehended at the Peshawar Airport when he was about to board a domestic flight. Attempt to smuggle heroin out of Pakistan would have been established had he been arrested at the Karachi Airport before boarding the flight meant for Nepal. Even otherwise, since the heroin powder recovered from inside the body of the appellant had not been proved to be of foreign origin, no offence under clause (8) or for that matter clause (89) of section 156(1) of the Customs Act, 1969 can be said to have been established.
6. For the aforesaid reason, the conviction of the appellant cannot be sustained. The appeal is accordingly accepted and by setting aside the impugned judgment of the learned Special Judge Customs dated 15-6-1988, the appellant is acquitted of the charge. He is to be released forthwith if not wanted in any other case.