SHAFIUR RAHMAN, J.--Leave to appeal was granted to Zahiruddin convict under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Hadd Order) to reappraise the evidence with a view to examine the correctness of his conviction and sentence under Article 4 for which a sentence of five years' R.1. Was ultimately imposed on him alongwith fine.
2. In view of the relaxation of rules ordered by the Hon'ble Chief Justice on 4-1-1991 about the hearing of such appeals by a Bench of three Judges of this Court, this appeal has come up before a Bench of two Judges for disposal and is being disposed of under the relaxed rules.
3. On the 14th of April, 1985 a Nigerian by the name of Mr. Mustafa Kaudoro was travelling from Islamabad to Karachi and onward to Jeddah and Lagos with a suitcase. He filed an application for export of baggage in the allowing terms (Exh.P.B./4):- "I AM TRAVELLING TO: LAGOS (NIGERIA)
AGAINST TICKET NO.: 077 - 4405 - 913 - 486-6 OF FLIGHT NO.: PK 308 I HAVE 01 PACKAGE WEGHT : 17 K.G BOOKED FOR LAG S UNDER A.W.B. NO.: 214-1096- 5194 DATED: 14-4-1985 FOR DESPATCH BAGGAGE CONTAINS THE ITEMS MENTIONED BELOW. THE BAGGAGE MAY PLEASE BE EXAMINED AND ALLOWED FOR DESPATCH.
YOURS FAITHFULLY, Sd/-.
There was a declaration by the Shippers in the following terms:- "Shippers Name and Address: MR. SAEED AHMED 78, AMARPURA RAWALPINDI TEL: 71438 Consignee's Name and Address: MR.KOUDORO MUSTAFA 48, UNITY ROAD IKEJA - LAGOS Ph: 835600 NIGERIA.
Issuing Carrier's Agents' Name and City.
INTERNATIONAL TRANSPORT ORGANISATION LIMITED ISLAMABAD PAKISTAN.
Accounting information: PREPAID Airport of Departure (Addr. Of first Carrier) and requested Routing: ISLAMABAD/KARACHI/JEDDAH/LAGOS To By first CarrierTo By KHI PK301/1504 JED 731/1604 Currency:CHGS Code PAR PP Handling information: ONE SUIT CASE: PLEASE INFORM CONSIGNEE ON ARRIVAL Nature and Quantity of Goods (incl. Dimensions of Volume): SAID TO CONTAIN PERSONAL EFFECTS ONE SUITCASE (BROWN)
No. of Pieces RCP Gross WeightRate Class Chargeable Weight Rate/ Charge Total 01 KHI 17 K R 50% 17 K 45.45 772.65 TICKET NO: 077:4405;913:486:6."
(Exh.PD/1)
The suitcase, however, was presented by Zahiruddin appellant alongwith Buniad Ali son of a Customs Superintendent for clearance and the note recorded by Inamul Haq, on search of the suitcase is as hereunder:- "Export Manifest No. And Date: Examined one s/case bearing A.W.B.No. 214-10965194 dated 14-4-1985 by Zaheeruddin alongwith Buniad Ali Shah and found the contents as under:-
(1) 14 small cartons containing optical frames = 245 Nos.
(2) Cotton Bed Sheets = 8 Nos.
(3) Heroin Powder 550 grams concealed suspiciously in the inside of the walls of the suitcase."
(Exh.P.B./4 - reverse)
4. The circumstances in which these recoveries were made were that on the first search only optical frames were recovered from the suitcase and cotton bed sheets. However, suspecting the peculiar construction of the suitcase, the dogs were brought and they sniffed heroin therein on which the suitcase was ripped open and recoveries were effected of heroin in 14 packets weighing in all 550 grams. Two separate cases; one in the customs jurisdiction under section 156 of the Customs Act and the other under Article 4 of the Hadd Order were instituted against both Buniad Ali and Zahiruddin who had presented the suitcase for clearance and Zahiruddin having provided the keys by which it was opened. Before the trial in both the jurisdictions i.e., the Customs and the Criminal Courts, the case against Buniad Ali, for reasons not very clear, was withdrawn by the Federal Government and only Zahiruddin was prosecuted. Three witnesses were examined by the prosecution; Inamul Haq (P.W.1), the Customs Officer who made the recovery, Muhammad Taj (P.W.3) being the A.S.I. Who conducted the investigation and Muhammad Riaz (P.W.2) who is the son of the Clearing Agent and was present at the time of recovery. Another witness Jamshed Iqbal mentioned in the proceedings was examined as a Court witness (C.W.1). In defence, one Mustajab, Officiating Superintendent Interpol was examined who produced a document Exh.DA. With regard to prosecution of Nigerian passenger Mustafa Kadoro in Nageria as a result thereof.
5. The plea of the appellant remained throughout one of denial and he made the following statement in respect of his involvement in the matter:-- "I am employed as Engineer in Nigeria for the last ten years. The elder brother of Mustafa Kadoro namely Mujtaba Kadoro is working in the same company where I am employed. Therefore, Mustafa Kadoro was known to me. Mustafa Kadoro alonfnvith me purchased 20 or 25 dozens of frames of glasses from a shop at Kashmir Road Saddar Rawalpindi. He told me that he had a licence with him and some complication might be created. 1 approached Buniad Ali Shah who is son of Superintendent of Custom, to help in this matter. I and Buniad Ali Shah came to Islamabad Airport at 8 a.m., on 14-4-1985. Mustafa Kadoro and Saeed had already got the booking of the attach-- case, through Entol Booking Agency, and the attachecase was already sent to Custom Hall for custom clearance. I and Buniad Ali Shah contacted Jamshed clearing agent working in Pakistan baggage. He took passport and ticket of Mustafa Kadoro and got the photostat of them. After completing the formalities he handed over the relevant papers to the Superintendent. I and Buniad Ali Shah were waiting outside the custom hall near P.I.A. Building. At that time, Mustafa Kadoro and Saeed Ahmad were also present there. Jamshed agent informed us that Deputy Superintendent Customs had informed him that he entrusted Inamul Haq for checking of attachecase, and also asked us to wait because Inamul Haq, Inspector was not present there at that time. As Mustafa Kadoro and Saeed Ahmad had to go in the flight at 10 a.m., therefore, he handed over attachecase to Jamshed for its clearance. At about 9-30 a.m., Inamul Haq, Inspector Custom came there and Jamshed handed over to him the relevant papers and the key. After that, Inamul Haq entered the custom hall alongwith us, and examined the suitcase. He torn out the cloth from the walls of the suitcase, and directed Jamshed to take the suitcase to Assistant Collector Ibrar Ahmed and also directed us to reach there. Riaz Butt P.W. Met us in the way, at the distance of about 330 yards from custom hall. I was arrested at about 10 or 10-30 a.m. 1 was forced by Wasim Inspector to sign notice under Customs Act. I had no information or knowledge that there was heroin concealed in the.
Suitcase and the heroin did not belong to me.
Mustafa Kadoro has been convicted, outside the country, but I do not know where he has been convicted. I am innocent and have been falsely implicated."
6. The trial Court believed the prosecution case by observing as hereunder:-- "The prosecution version is that accused Zahiruddin produced the key of the suitcase. In order to prove this version, the prosecution produced two witnesses, who consistently deposed that accused Zahiruddin produced the key of the suitcase. There is no major discrepancy in their statements. They are not inimical towards the accused. There is no chance of false implication. The report of Chemical Examiner is positive in connection with the heroin recovered from the suitcase.
As such, taking into consideration the evidence on the record, and in the light of above discussion, I am convinced that the prosecution has succeeded to prove the charge framed against the accused beyond any shadow of doubt:"
It convicted the appellant under Article 4 of the Hadd Order and sentenced him to ten years' R.I. 20 stripes and a fine of Rs.10,000.
7. The convict appealed to the Federal Shariat Court which rejected the appeal against conviction but reduced the substantive sentence to R.I. For five years. The sentences of fine and whipping were, however, upheld. While concluding so, the Federal Shariat Court observed as hereunder:-- "All that showed that the appellant was fully conscious of all the articles kept in the suitcase. It is also evident from the record that Mustafa Kadoro to whom allegedly the suitcase belonged has been convicted for an offence under narcotics. It is admitted by the appellant that he was employed in Nigeria and was working in the same factory where the elder brother of Mustafa Kadoro was working. All these facts give a clear indication that the appellant had a direct link with the gang of smugglers of Nigeria and he was fully aware of the contents of the suitcase when the very key was in his possession and when the suitcase was produced by him before the Custom Authorities."
8. Mr. Q.M. Salim, Senior Advocate, the learned counsel for the appellant contended before us that the documentary evidence presented at the trial showing that the suitcase beionged to the Nigerian passenger, that it was presented by him for clearance, that having acquaintance the appellant and Buniad Ali only assisted him in getting it cleared without knowing the secret compartments of the suitcase and the contents thereof. This absence of knowledge on their part is further borne out by the fact that Buniad Ali was the son of a Customs Superintendent who could not ordinarily associate in this enterprise if the two had known. Besides, Buniad Ali was not prosecuted for either the custom offence or the offence under the Hadd Order. Both the cases were withdrawn, so far as he was concerned. The explanation given by the appellant was plausible and consistent with his innocence as well as with the prosecution case as was presented before the trial Court.
9. The distinguishing feature of the case of the appellant as against Buniad Ali is that he is accused of having handed over the key by which the suitcase was opened for inspection at the customs counter. Zahiruddin (the appellant) has explained the circumstances and the circumstances part is not inconsistent with the prosecution case. The declarations etc. All had been signed by the passenger and the Shipper was also a different one than the appellant. The presentation of the suitcase at the counter in the company of Buniad Ali would not by itself incriminate the appellant when there was a documented background of the criminality of the passenger and even for this transportation he stands convicted n Nigeria. The documents presented in defence throw some light on the circumstances in which this occurrence was detected. The document (Exh.DA.) brought on record is an `inter-p.1' Islamabad document presented by the defence witness who is a functionary. It relates to the police clearance of Koudoro Mustafa on the date 14-4-1985 and mentions the implication of the three concerned therein as hereunder:-- "Zaheer-ud-Din. Saeed-ud-Din The above-named are hereby cleared, hence, they have no criminal record in Nigeria.
Koudoro Mustafa The above named has been traced. He was convicted in 1982 for narcotics, and was sentenced to two years' imprisonment in Nigeria. He is heroin addict. Now he is under arrest. During interrogation he has revealed, that he had travelled to Pakistan in April 1985. The suit case which was brought at Air Freight Unit Islamabad Air Port for export to Lagos belonged to him and the heroin concealed inside the suitcase was purchased by him from Jaffer Khan of Bara Peshawar. He further revealed that Zaheer-ud-Din had nothing to do with the suitcase and he was not aware about the heroin concealed inside the suit case. He came to the air port to help him because he had no export licence for the optical frames. His statement is attached herewith for your record. Mrs. Esther Qalbode. Al Haji Daisi Kotoye. Miss Muibet and H.A. Qadri The above-mentioned Nigerians are the employees of Niger optical company at No.48 Unity Road, Ikeja Lagos. Verification of the conduct of these Nigerians has made clear, they are not involved in the smuggling of heroin in collaboration with Zaheer-ud-Din and Saeed-ud-Din. It is also verified in the light of particulars and documents supplied to us, that these Nigerians have travelled to Pakistan prior to each booking, but they are not narcotics traffickers. They are hereby cleared, hence, their F.R. Is not traced in our C.R. Regret for delay."
The statement of Koudoro Mustafa (Exh.D.B.) in these proceedings is in the following words:-- "I traveled Pakistan in April this year with Saeed Ahmed to buy optical frames for the company. On 14th April 1985, 1 brought a suitcase with Saeed Ahmed at Islamabad Air Port for booking to Nigeria.
We contacted a custom agent through Zaheer-ud-Din. After completion of the paper work the agent asked us to wait for Custom Inspector incharge of export till 8-30 a.m. As he had not arrived his duty then. I was in hurry. I left with Saeed Ahmed to make an appointment with Messrs J.K.
Overseas and asked the agent and Zaheer-ud-Din to examine the suitcase on my behalf. That suitcase belonged to me and the heroin concealed inside the suitcase was for my own use, not for sale. Zaheer-ud-Din and his friend Buniad Ali Shah were not aware about the heroin concealed inside the suitcase. They came to help me because I had no export licence for the optical frames:"
10. So far as the acquittal of appellant in the case under Customs Act is concerned, judgment, dated 10-1-1990 rendered by the Special Judge Customs, Islamabad has been made available and it concludes as hereunder:-- "As is clear from the above, the real and the only culprit was Koudoro Mustafa and the remaining accused were arrested on the basis of suspicion. A perusal of the record shows that on 13-1-1991 my learned predecessor had acquitted Buniad Ali Shah accused on the basis of the statement of the learned S.P.P. Customs, who was directed by the Federal Government to withdraw the prosecution against the said accused. It appears that such direction was issued in view of Exh. DA.
And Exh. D.B., but curiously enough the Federal Government did not order for the withdrawal of the case against Zaheer-ud-Din and Saeed-ud-Din accused as their names are mentioned in both the said documents whereas the name of Buniad Ali Shah is mentioned only in Exh. DA. So the case of Zaheer-ud-Din and Saeed-ud-Din is better than that of Buniad Ali Shah who was acquitted about a year ago.
As a result of the above discussion, Zahir Uddin and Saeed Uddin accused also deserve acquittal as there is no cogent evidence against them with the prosecution; rather the documents mentioned above absolve them of their participation in the commission of the offence. Hence they both are acquitted of the charge. They are already on bail are discharged of their liability from the bail bonds."
11. After going through the entire evidence, mainly the documentary evidence made available and the defence of the appellant, we are clearly of the view that the prosecution has not been able to establish the case against the appellant beyond reasonable doubt and the appellant was entitled to be given the benefit of doubt and acquitted on account of it. Hence, we accept the appeal, set aside the conviction and sentence, and discharge him of the bail bond furnished by him.