TANZIL-UR-REHMAN, C.J.--- By our short, order, dated 27-1-1991 at the conclusion of the hearing, we dismissed the appeal and enhanced the sentence of whipping from 20 to 30 stripes after notice to the appellant, for reasons to be recorded separately.
2. Now, the reasons have been recorded,, by our learned brother Dr. Allama Fida Muhammad Khan, J and I find myself in complete agreement with him. However, I would like to refer to one legal argument, which was advanced by the learned counsel for the appellant. It was submitted by him that the appellant was apprehended by the Customs Officer under the provisions of the Customs Act, his trial under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, being without any investigation, is illegal. In any case, the investigation made by the Customs Officer cannot be used in evidence for the purpose of Articles 3 and 4 of the said Order. As such the entire proceedings under Articles 3 and 4 are illegal.
3. In order to examine the above contention, we glanced through the policed record and it was found that the Investigating Officer Muhammad Iqbal, Sub --Inspector, Police Station, Rawalpindi, P.W. 3 had duly recorded the statements of P.Ws. As provided in section 161, Criminal Procedure Code, and had challaned the accused under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order. 1979. In this respect, it may further be added that the Customs Officer, P.W.1 Sultan Khalid Masood Kiani who had apprehended the accused found him possessing, transporting or attempting to transport the contraband and in discharge of his duty imposed on him, did inform the S.H.O., Police Station Airport, Rawalpindi, who took proper cognisance of the offence. There is, therefore. No illegality or even irregularity in the proceedings under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. In fact, the Customs Department, after the observations made by this Court in Anwar Khattak's case PLD 1990 FSC 62 (January part) that the Custom Officers who apprehended tier accused possessing, transporting or attempting to transport etc. Were bound to inform the concerned law enforcing agency to take cognizance of the same, has performed its duty informing the S.H.O., Airport Police Station who took cognizance of the case. It seems advantageous to reproduce the last paragraph of the said judgment, which reads as under: "We may also suggest here that the Federal Government may issue general instructions for the information of all the Customs Officers se that whenever any person is found to possess or attempts to import, export, transport or commits any of the offences in respect of narcotics they must report the matter to Pakistan Narcotics Control Board or the concerned police so that separate proceedings are initiated under Articles 3 and 4 of the P.O. 4 of 1979."
4. In any case, the provisions of Article 29 of P.O. 4 of 1979 provide that the said Order shall have effect notwithstanding anything contained in any other law for the, time being in force.
FIDA MUHAMMAD KHAN, J.--- This criminal appeal arises out of a judgment and order passed by Sessions Judge, Rawalpindi on 31-7-1990 whereby he convicted the appellant Niaz Gul son of Gul Hussain, resident of Hangu, District Kohat under Article 3 of the Prohibition (Enforcement of Hadd)
Order, 1979 and sentenced him to twelve years' R.I., whipping numbering twenty stripes and a fine of Rs.10,000 (Ten thousand) or in default in the payment of fine to further suffer two years' R.I. The appellant was also extended the benefit of section 382-B, Cr.P.C.
2. Story of the prosecution according to complaint Exh. P.E. Written by Sultan Khalid Masood Kiani, Inspector Custom and duly incorporated into F.I.R. By Muhammad Iqbal, S.I. Police is that Sultan Khalid Masood Kiani alongwith Abu Yahya, Deputy Superintendent, Custom, Muhammad Riaz Awan and Lai Khan, Inspector Custom was on duty on 27-4-1989 at International Departure Hall, Islamabad Airport. They were busy in checking the persons and luggage of passengers of PK-789 scheduled from Islamabad to London. In the meantime,, the appellant having British and Pakistani Passports NOS.AJ-773868 and 022624-R and who was to travel on P.IA. Ticket No.214:4200-588-522- 0 arrived there and produced his luggage, consisting of two suit-cases, for checking. He stated that there was nothing contraband in his luggage.. However, on searching the suit cases it was found that there was heroin concealed by adhesive tape under the `Gatta' sheets in the bottom of both the suit-cases. On weighing that alongwith its Gatta it was found to be two kilograms, from grey coloured suit-case, and 1,35Q grams, from green coloured suit-case. The heroin was taken into possession in the presence of the witnesses vide memos. Exh. PA. And Exh. P.B. Ten grams heroin from ach attach-case were separated and sent for chemical analysis. Remaining heroin was also sealed into separate parcels. The appellant was taken into custody and the recovered contraband was deposited in Custom State Ware House. A separate case under section 171 of Custom Act, 1969 was also lodged against him.
The complaint was sent to the police station through Lai Khan, Inspector where upon a case under Article 3;14 of the Prohibition (Enforcement of Hadd) Order, 1979 was also lodged against him.
Subsequently the appellant was handed over to Muhammad lqbal, S.I. Police Line, Rawalpindi alongwith all the relevant documents pertaining to the case who after completing the necessary formalities challaned him to face the trial.
3. At the trial prosecution examined three witnesses. P.W.1 Sultan Khalid Masood Kiani is the complainant who reiterated as stated above. In his statement he also gave the details of the items recovered, in addition to the heroin, from the possession of the appellant which include National Identity Card of the appellant, personal clothing, some documents, P.I.A. Ticket, one summon of County Court in the name of Niaz Gul etc. He also deposited four sealed parcels of sample of heroin in the office of Chemical Examiner, Rawalpindi and after investigation produced the appellant before Illaqa Magistrate who sent him to the judicial lock- up. He also handed over the relevant papers pertaining to this case to Muhammad Iqbal P.W. He, received the report of the Chemical Examiner Exh. P.F. Through post and on 15-5-1989 handed over the same to police for investigation.
He also recorded the statement of P.Ws. P.W.2 is Lai Khan, Inspector Custom who was a member of the checking party and also a witness to the recovery memos vide which two kilograms and 1350 grams of heroin was taken into possession from the two suit-cases. His statement is fully consistent with the statement of P.W.1 in all material details. On 27-4-1989 P.W.3 Muhammad Iqbal, S.I. Police Line, Rawalpindi drafted the formal F.I.R. Exh.P.E./1 after receiving the complaint Exh P.E.
From Sultan Khalid Masood Mani P.W.1. On 30-4-1989 he came to the District Court where Sultan Khalid Masood Kiani met him and stated that he had completed investigation in the case under the Customs Act and told him to proceed and investigate the case under Article 3/4 of the Prohibition Order against the appellant. The appellant was on judicial remand in custom case. He was handed over to him alongwith all the relevant documents pertaining to the case. He arrested him and obtained his physical remand and took him in custody at the spot (i.e. Airport) where he met the P.Ws., inspected the spot, prepared the site plan, recorded the statements of P.Ws. Under section 161, Cr.P.C. He also received the positive report of Chemical Examiner Exh P.F. On 15-5-1989 from P.W.1. He completed the investigation and challaned the accused.
4. The appellant was examined under section 342, Cr.P.C. In which he pleaded innocence and admitting the fact that he was to board flight No.PK-789 bound for London denied that the two suit-cases in question belonged to him. He said that in fact those belonged to one Muhammad Mushtaq, another scheduled passenger for the same flight, who slipped away and the custom officials mistook him for the said Mushtaq and erroneously substituted the appellant for him.
5. The appellant also produced two defence witnesses and examined himself on oath. In his statement on oath he took the same plea that one Mushtaq who was accompanying him was owner of the suit-cases and since he had escaped from the scene of occurrence, the appellant was substituted for him and was implicated in this case. D.W.1 Izat Khan relative of the accused deposed that on 24-4-1989 Niaz Gul had proceeded from the village to go back to London. He had seen him of and he was having a bag at that time. The appellant according to him had boarded in a flying coach in his presence. D.W.2 Nasib Gul, brother of the appellant, deposed that on 24-4-1989 the appellant proceeded back to U.K. And he was having a bag and a small purse of brown colour at the time of his departure and the appellant had boarded in the flying coach in his presence.
6. We have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellant contended that report of the Chemical Examiner in respect of the recovered heroin was not confidence-inspiring. The recovered contraband was in Gatta form and there is no visible sign of heroin in case property produced with seal in the Court.
He also contended that report of the Chemical Examiner disclosed that the substance examined by him was heroin powder whereas the case property produced in the Court was something made of hard stuff like hard-board and so the said report is in conflict with the said case property. He also submitted that the case property was covered and sealed into a cloth and was not opened at the time of exhibition in the Court. Since these contentions were considered quite weighty, in the interest of justice we felt it necessary to check up and then send the sealed parcels containing the alleged recovery of heroin from the two suit-cases possessed by the appellant to the Chemical Examiner to report afresh whether the said two Gattas contained heroin and if the report was in affirmative, to state the net weight of quantity so extracted from the said two Gattas. The Chemical Examiner was also directed to state in his report the analysis and the method applied and to submit the report personally in the Court on 27-1-1991. Accordingly, the Chemical Examiner Dr. Muzaffar Hameed Khan appeared on 27-1-1991 as a Court-witness and reported that `both the packets contained heroin which could be used to cause intoxication'. In his statement on oath he also highlighted the process used by the appellant to turn heroin into Gatta form. He deposed that he received two sealed parcels said to contain heroin with Gattas intact. After opening the packet he observed that several sheets of papers had been sprinkled with powder on them and were placed one above the other. The same had then been warmed up and resultantly the power hidden in between the leaves or sheets had been melted and transformed into the present form of Gattas. In order to examine it he, immersed the two Gatta sheets in chloroform solution in a glass tank separately. Consequently, the papers were dissolved and the contents were separated. The chloroform was evaporated leaving behind the extracted material. It was dried in the oven and made into powder. He produced the extracted powder from each Gatta. The Gattas were weighed and its total gross weight was found 1,450 grams and 2,175 grams respectively which contained 960 grams and 1,094 grams heroin powder in net form. These packets were produced and marked as Exh.FSC/1 and Exh.FSC/2 respectively. The total net weight of the heroin after extraction from both the Gattas was thus found to be 2,054 grams. The Chemical,, Examiner was duly cross-examined by the learned counsel for the appellant. He denied the suggestion that the earlier test was not done by the process of which he spoke of today. He explained that the process of extraction,, was not asked for by the Court earlier. He also denied the suggestion that he was not sent pieces of Gattas. However, replying to a question he said that he did not weigh the small pieces sent to him earlier.
7. In view of this statement we are of the opinion that the conflict in the report of the Chemical Examiner vis-a-vis the case property as referred to above by the learned counsel for the appellant is imaginary and therefore, his contention without any substance. The learned counsel further submitted that the investigation made by Customs was not relevant for the purpose of any offence charged of the Prohibition (Enforcement of Hadd) Order, 1979. The learned counsel further submitted that in the instant case, the whole proceedings have been conducted by the Custom Staff, which for the purpose of prohibition offences are not valid. The fact is that the statements of the P.Ws. Were duly made in the trial Court and therefore, there seems, no cogent reasons to discard the same. Further also it is pertinent to note that after the initial investigation, the appellant was handed over to Muhammad Iqbal P.W.3 and he investigated the case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, therefore, this contention is without force. The learned counsel further submitted that copy of Chemical Examiner's report was not supplied. Since re-examination of the material has been made on the request of the learned counsel and copy of Chemical analysis was duly received by him we don't think that any prejudice whatsoever has been caused to the appellant in this connection. The learned counsel lastly submitted that the present weight as mentioned by the Chemical Examiner does not tally with the weight mentioned earlier by the prosecution but we are not convinced as the difference in gross weight seems to be negligible and in the circumstances becomes immaterial. No suggestion was ever put to the P.Ws.
On this point. Consequently, we have now come to the conclusion that the defence version is not plausible. The appellant admits his presence on the said time, date and place of recovery. He also admits the recovery of two suit-cases. However, he denies that they belonged to him. He took the plea that the same belonged to one Muhammad Mushtaq who was second in line with him at that time. However, the same could not be proved by him as required and his substitution by the Customs Officials without any rhyme or reason does not appeal to reason. In his statement on oath he has clearly admitted that he had pushed the attach-case of Mushtaq alongwith his own luggage. He also admitted that by helping each other he had presented the attach-case of Mushtaq at the counter and that the attach-case was checked in his presence and it was after his being told by the Customs Staff that he was taking heroin alongwith him that he explained to the Customs Staff that the suit-cases were of Mushtaq. He has also admitted that he had told the Customs Staff at the time of removing the tag of attach-case that there was nothing in the attach- case. It was after the recovery of heroin that he immediately told that the suit-case belonged to Mushtaq. He has also admitted it as correct that he had placed his luggage at the search counter for checking and first of all the attach-case was checked. Exh. P.B. Is a notice under section 171 of Customs Act and has been duly signed by him without any protest having been recorded over there. On 27-4-1989 in his cross he has admitted it as correct that the signatures on Exh. P.D. Are his signatures. Further, he also admits that he was produced before the Magistrate and he did not make any application to the Magistrate about the said plea. He also did not make any application to any authority or Court of competent jurisdiction about his innocence.
8. The portions in the cross-examination of the appellant referred to above clearly show that at the time of checking of the two attach-cases he was in its possession and he had presented those before the Customs official and had told them that there was nothing contraband in them. The question is how did he come to know about the contents inside suit-cases when they did not belong to him. Moreover why did he remain silent about its ownership or the fact that they belonged to one Mushtaq before the recovery of the contraband material from inside is another question that speaks of his involvement. He did not protest nor made any application to the Magistrate or any competent authority about his innocence. The plea that the same bikinied to one Muhammad Mushtaq, his co-passenger was never substantiated. The Custom officials had no enmity with him anti the possibility that the Customs officials mistook him for one Mushtaq and h., was erroneously substituted for him does not appeal to reason in the said circumstances. It is also pertinent to mention that the depositions of D.W s. Produced by him besides being his relatives do not inspire confidence as they are not eye-witnesses at the place of occurrence. The occurrence took place on 27-4-1989 whereas the date of his departure from his village is stated by the D.W s. As 24-4-1989 and is stated by himself as 26-4-1989.
9. The upshot of the above discussion is that we have evidence on record of prosecution witnesses that is fully consistent, confidence-inspiring and believable against a defence which is neither plausible nor does it appeal to reason. Therefore, we have no doubt in our minds that the prosecution has established its case against the appellant and has succeeded to bring home his guilt on the charge under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979.
10. Consequently for the reasons stated above, we maintain the conviction and sentences of Niaz Gul son of Gul Hussain and dismiss his appeal. In view of the criminal suo motu notice issued to him on 27-1-1991 we would also enhance the sentence of whipping from twenty stripes to thirty stripes.