' IBADAT YAR KHAN, J.--- The appellant has been arrested from the Islamabad Airport on the charge that he was attempting to carry huge quantity of heroin weighing 2350 grams with him by London- bound Flight No,BA-222 on 29-1-1987. He was caught rz.d handed and put up on trial before Mian Johangir Pervaiz, Sessions Judge, Rawalpindi and has been convicted by the learned Judge vide judgment, dated 9-3-1989 under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979.
The appellant has been separately convicted under the two counts but the sentences are to run consecutively.
2. The facts revealed in the F.1.R. Recorded in Police Station, Civil Lines, Rawalpindi, on 29-1-1987 at 7- 00 p.m. Are that Major Wazir Ahmad, Chief Security Officer, received a secret information that huge quantity of heroin was likely to be smuggled from Islamabad Airport to London by BOAC Flight No,BA-222. On this information the Chief Security Officer put the A.S.F. Staff on the alert. Muhammad Sakhawat Khan, Security Officer Airport directed Mian Farooq Ahmad, Deputy Superintendent Customs, to arrange a trap. Consequently Mian Farooq Ahmad, Deputy Superintendent Customs, formed a raiding party consisting of Zafar Beg, Abdul Hamid, Inspectors Customs and Zeb Khan, A.S.O., A.S.F., Fayyaz Makhdoom, Muhammad Nazir Buttal, Inspectors A.S.F. And Habib-ur-Rehman, A.S.T. Shaheen Company, A.S.F., Islamabad. The party remained on the vigil at the search counter of the A.S.F. It is stated in the F.T.R. That the passengers of the flight were thoroughly checked on the search counter of the A.S.F. The appellant also appeared at the counter carrying a British Passport No, L-917134-C and an air ticket of the British Airways. He disclosed his name as Muhammad Maskeen son of Jumma Khan cast Pathan resident of Manchester, England. He was asked whether he had anything to declare to which he replied in the negative. His body search was conducted by Habib-ur-Rehman, A.S.F. In presence of other officers of the A.S.F. And Customs. When the ravine jacket which he was wearing at the time was searched three sacks stuffed with heroin were detected tucked to the back side of the jacket. The heroin in the sacks was found to be 1750 grams.
During the checking the appellant disclosed that he has raxine suit-case marked 'England Constellation' in his baggage which contains heroin concealed in the walls of the suit-case. This suit-case had been booked as unaccompanied baggage without checking by the Customs.
Thereupon the Customs staff went to the aircraft and on the identification of the appellant brough down a suit-case carrying tag No,BA-114226. The suit-case was checked and heroin weighing 600 grams concealed in the side walls was recovered. All this heroin was seized and taken into possession by the Customs Staff under the recovery memos. (Exhs.P.A. And P.C.). As he could not produce any authority fOr exporting the same, a notice udder section 171 of Customs Act, 1969 was served upon him and he was arrested. Two samples of ten grams each were extracted from the heroin recovered from the jacket of the appellant. These samples were sealed for the purposes of the chemical examination. The bulk was also separately packed and sealed. The Customs Staff kept the heroin with themselves as they wanted to prosecute the appellant under the Customs Act.
The complaint (Exh.P.E.) was written by Mian Farooq Ahmad, Deputy Superintendent of Customs and sent to the police station for recording of the formal F.I.R. (Exh.P.E./1), through Abdul Hamid, Inspector Customs.
3. The prosecution has examined seven witnesses.
4. P.W.4 S.I. Gulfraz Khan of Addiala Police Lines, Rawalpindi, recorded formal F.I.R. (Exh.P.E./1) on the basis of the complaint (Exh.P.E.).
5. P.W.5 Inspector Customs Anti-Smuggling Mobile Squad, who was posted as Inspector Customs at Islamabad Airport, was handed over two sealed parcels by Mian Farooq Ahmad, Deputy Superintendent of Customs for onward transmission to the Chemical Laboratory for testing purposes. He deposited the samples in the office of the Chemical Examiner, Rawalpindi, on 19-2- 1987.
6. P.W.2 Dr. Muzaffar Hamid Khan, Chemical Examiner, Government of Punjab, Rawalpindi, was produced in Court and he has stated that on 19th February, 1987, Muhammad Naeem, Inspector Customs had brought two packets for chemical analysis. These packets were subjected to different tests and results were positive confirming that the stuff was heroin. He had prepared a report Exh.P.B. Which he had attested.
7. There are three witnesses of recovery. P.W.1 Habib-ur-Rehman an A.S.I. In A.S.F., P.W.3 Mian Farooq Ahmad and P.W.6 Abdul Hamid. The later two belong to the Customs Department.
8. P.W.1 Habib-ur-Rehman A.S.I. Has stated that on 29-1-1987 he was on duty at the International Airport, Islamabad and was present in the Departure Lounge. The Company Commander Mr. Muhammad Sakhawat of the A.S.F. Had informed that an attempt was to be made by someone for smuggling some narcotics out of Pakistan by London-bound Flight No,BA-222. On this information a raiding party consisting of officers of two agencies namely A.S.F. And the Customs was constituted.
Among the A.S.F. Officers were Inspectors Muhammad Nazir and Fayyaz Makhdoom. The Customs Officers associated in the checking were Mian Farooq Ahmad, Deputy Superintendent Customs and Abdul Hamid and Zafar Beg both Inspectors Customs. Witness Habib-ur- Rehman was performing the duties of body searcher at the counter at the relevant time.
9. At about 8-00 a.m. The appellant arrived at the search counter. He was wearing a jacket when he presented himself for his body search. As the appellant was subjected to the body search the searching fingers of the witness felt some heavy material in the jacket. The jacket was taken off and it yielded three bags stuffed with heroin. On weighing the heroin was found to be 1750 grams.
The heroin so recovered was taken into possession by Mian Farooq Ahmad, Deputy Superintendent of Customs. A recovery memo. (Exh.PA.) was prepared and it was signed on the spot. It was also signed by this witness. The witness goes on to say that the appellant had concealed some heroin in his suit-case also. He adds that 600 grams of heroin was recovered from the suit-case. But as he was only a body searcher he could not be sure about further details regarding samples and other proceedings. This witness identified the cloth in which the heroin was packed at the time of search.
10. P.W.3 Mian Farooq Ahmad, Deputy Superintendent of Customs, has stated in Court that on 29-1- 1987 at about 8-00 a.m. He was present in the departure hall of the Islamabad Airport. Major Wazir Ahmad, Chief Security Officer, received a secret information that a large quantity of heroin was going to be smuggled through Flight No,BA-222 from Islamabad to London. He passed on this information to the Customs Staff. On this information the witness formed a raiding party including in it Zafar Beg, Abdul Hamid Khan, Inspectors Custom and some officers of A.S.F. Including Jehanzeb. The search was carried out by the A.S.F. And this search of passengers remained in progress at the search counter of the A.S.F. When the appellant Muhammad Maskeen turned up, he was asked whether he had anything to declare to which he replied in the negative. The 4. Appellant was then subjected to personal search by the A.S.F. Officials. Habib-urRehman A.S.I. Of A.S.F. Took the body search of the appellant and from the jacket which the appellant was wearing at the time three bags of heroin were recovered. The total weight of these bags containing heroin was found to be 1750 grams. On further questioning the appellant disclosed that some more heroin was hidden in his suit-case which had been sent out as his luggage to the aeroplane. The suit-case bearing a tag of the appellant was brought down from the aircraft and was opened by a key produced by the appellant. On opening the suit-case and on its search, 600 grams of heroin was recovered from the suit-case. The three packets were marked P.2 to P.4, Cloth P.5 and the jacket P.1. All these articles were taken into possession vide recovery memo. (Exh.P.A.) prepared by the witness in his own handwriting. The recovery memo. Was attested by the P.Ws. Two samples were taken from the recovered heroin and made into sealed parcels. Among the recoveries of the suit-case were ten Dopattas' (Exhs.8/1-10), three packets of Chalgozas vide the recovery memo. Exh.P.C. The recovery from the body search included National Identity Card (P.11), two Passports (P.9 and P.10), one ticket (P.12), Rs,100 Notes, a wrist watch and five keys. All these recoveries were entered in a recovery memo. And attested by the witnesses. A complaint (Exh.P.F.) was drafted by Deputy Superintendent, Farooq Ahmad and sent to the Police Station Civil Lines through Abdul Hamid, Inspector Customs for registration of case. The sealed parcels of samples were sent to the office of the Chemical Examiner by this witness. The witness was shown the heroin packets and he identified them in the Court.
11. P.W.6 Abdul Hamid another Inspector Customs has stated in Court that he was on duty at 8-00 a.m. In the Islamabad Airport to handle a London bound flight. He corroborates the statement of Mian Farooq and has described how the raiding party consisting of A.S.F. And Customs Staff was arranged. He states that the body search of the appellant was taken and heroin was recovered from the jacket of the appellant. After the recovery of the three bags from the jacket a suitcase was brought down from the aeroplane and 600 grams of heroin was recovered from the suit-case. The witness adds that some `Dopattas' and other articles and a British Passport and tickets were also recovered and were taken into possession. He states that he took the complaint Exh.P.F. To the Civil Line Police Station and handed it over to Muhammad Akram A.S.I. For registration of the case.
12. P.W.7 Muhammad Akram, A.S.I., Police Station Cantt. Rawalpindi has stated that he was posted as A.S.I. At Chaklala. On receipt of the complaint he visited the Islamabad Airport, inspected the spot, prepared the rough sketch of the place of occurrence Exh.P.F. And recorded the statements of P.Ws. Under section 161, Cr.P.C. He took into possession memos. Prepared by Mian Farooq on 4th of February, 1987. The accused/appellant was produced before the police and arrested by the police.
After completing the investigation he handed over the case papers to the S.H.O. Of the police station for preparation of the challan and sending up the accused for trial.
13. The appellant was challancd and sent up for trial of the offences. He was tried by the learned Sessions Judge, Rawalpindi, who framed the charge against him under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant pleaded not guilty and claimed trial.
14. After the prosecution evidence concluded the appellant was examined by the learned Sessions Judge under section 342, Cr.P.C. He has disowned the jacket as well as the suit-case from which the huge quantity of heroin was recovered. He was asked whether he would make any statement under section 340(2), Cr.P.C. And would lead any defence. He declined to make any statement as according to him it was not necessary. His defence plea is contained in answer to question No,7 and for better appreciation it may be reproduced below:-- "It is because I had altercation with the Customs Immigration and A.S.F. Staff, because I wanted to take a tin of Ghee with me and they were not allowing me to take the same to the Aircraft as accompanied baggage. I only had 25 pounds sterling and some Pak currency, 47 cassettes and keys of my residence. After the altercation I was made to sit in Mian Farooq's office and there I was informed that they have recovered some heroin and other articles from my suit-case and the jacket. The jacket and suit-case do not belong to me. I was also deprived of one Seiko Watch. They gave me lot of beatings and kept me in their custody for about 4/5 days and then finally sent me to jail."
15. The learned counsel appearing for the appellant raised following objections:--
(1) That the report Exh.P.B. Produced in Court by the Chemical Examiner is not admissible in evidence because it was only a photocopy.
This argument is nothing but an attempt to make fetish of a formality. In this case the report has not been tendered by the prosecutor as a privileged document as is done in number of cases.
P.W.2 Dr. Mtwaffar Hamid Khan, Chemical Examiner who had examined the sample has himself appeared in Court and has himself produced the report in Court and also made the followig statement:- "Both packets were analysed and different tests were performed, which were found positive for presence of heroin. On its basis, I gave my report Exh.P.B., which is photo copy of original report which has been attested by me. According to my report, both the packets contained heroin.
Original is signed by me (original seen and returned)."
16. In view of the above statement the contention is not only misconceived but totally irrelevant.
17. The other contention of the learned counsel was that the recovery should not be believed because no public witness has been associated with the recovery. This argument also has no substance. To associate the public witness is not a rule of law. It is a rule of prudence. In the present case three agencies were involved and at the time of recovery representatives of the three agencies enjoying high official positions took part under a co-ordinated plan. It is to be further noted that recovery in this case is not from a bus or a street. It is from the Airport where boarding and disembarking passengers are checked as a routine by Customs and other agencies. It is not a public place but a restricted area where only pass-holders or authorised persons are entitled to enter. The only public members present at the relevant time could he the passengers flying out to London by this flight and surely no such passenger would be a willing party to take part in such a ceremony.
18. The next contention of the learned counsel was that investigation in this case has been done by the Customs Staff and no investigation has been done under the Prohibition Order. This was a peculiar objection. All the witnesses in the case have been examined before the Court. The investigation was conducted by P.W.7 Muhammad Akram who was a member of regular police force attached to Police Station Cantt. Rawalpindi. The samples after recovery were handed over to P.W.7 who took them to the Chemical Examiner.
19. The next contention was that samples were drawn and kept by Mian Farooq from 29th of January to 15th of February, 1987. They were sent to the laboratory on the 19th of February, 1987. This objection is also raised for the sake of objection. There is not the slightest suggestion either in the cross-examination or even now before us that the samples were in any way tampered. We have carefully examined Exh.P.B. Issued by Dr. Muzaffar Hamid Khan which certifies that the two sealed packets were received in his office under the covering letter dated 29th of February, 1987 in sealed condition. Had there been any tampering with the seal the Chemical Examiner would have surely raised an objection. Moreover, this certificate has not been tendered in evidence as an opinion by the prosecutor which is usual practice. The Chemical Examiner has stated on oath On 29th of February, 1987 Muhammad Naeem Inspector Customs brought two packets for chemical analysis which were sealed'. We do not find how the time of 15 days or so taken for sending the samples to the Chemical Laboratory can affect the merit of the case. In our opinion neither there is undue delay nor indeed mere delay can be a criterion to judge the results of scientific analysis of a sample unless it is shown that any tampering had occurred on account of delay causing prejudice to the accused/appellant.
20. The next contention was that the samples were drawn only from two bags and not from all the three bags. In our opinion this contention has also no merit because it is nobody's case even now that the third bag contained anything other than heroin. How it would affect the merits of the case the learned counsel fails to point out. The learned counsel elaborated this argument further by saying that the material recovered from the suit-case was not subjected to chemical examination.
Here again it may be pointed out that this recovery was made at the instance and pointation of the appellant himself. His suit-case was brought down from the aircraft at his instance and it was he who helped the detectors of heroin in checking out the narcotics from the suit-case. Moreover, the learned counsel has not been able to show why the senior staff of the three agencies namely the Customs, A.S.F. And the police should try to make out a false recovery from the suit-case when there is no allegation of any personal grudge or enmity between the appellant and anyone of them.
21. The last contention of the learned counsel was that the case has been conducted by the Customs and they are prosecuting the appellant while that he cannot he prosecuted and punished on the same set of facts under the Prohibition Order. Whatever may be the merit of this contention it appears to us that it is too late now. We are dealing with the case of the appellant in appeal against his conviction by the learned Sessions Judge. In our opinion it was within the jurisdiction of the learned Judge to try the appellant and convict him under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. If the appellant is found guilty under any other law for violating other provision he would have to face the trial under those laws. If the contention of the learned counsel has any merit he can raise this objection whenever he is subjected to other conviction under those laws and if the contention has any merit that Court could take a decision.
So far as this Court is concerned we are concerned with the competency of the trial Court to try the offence under the Prohibition Order and the culpability of the appellant in the crime committed by him under Articles 3 and 4 of the Prohibition Order. Both are satisfied in this case and objection is nothing but an exercise in futility.
22. We have no hesitation in saying that attempting to take out this huge quantity of heroin to another country was a very daring bid on the part of the appellant. He had actually succeeded in dodging the Customs staff by clearing his suit-case and putting it on the aircraft. It was on account of recovery from his jacket which landed him in trouble. The attempt failed and the appellant was brought to book.
23. The upshot of the discussion is that the appeal fails, the findings of the learned Sessions Judge are upheld, the conviction under Article 4(2) of the Order sentencing the appellant to life imprisonment with thirty stripes and fine of Rs,20,000 is maintained. So far as the conviction under Article 3 is concerned the conviction cannot be sustained because the appellant's case is covered by Article 4 proviso 2 and his conviction under this Article would meet the ends of justice.