' KHALIL-UR-REHMAN KHAN, J.---This judgment contains the reasons for acquitting the appellants vide our short order, dated 27th September, 1994, whereunder we accepted the Jail Criminal Appeal No,121/I of 1994 (Abdullah Khan and two others v. The State), Criminal Appeal 127/I of 1994 (Lalzada and two others v. The State). And dismissed Criminal Suo Motu Revision No,5/I of 1994.
Abdullah Khan, Abdur Rehman and Qasim Ali, the appellants in Jail Criminal Appeal and Lalzada, Kamaluddin and Abdur Rehman son of Muhammad appellants in criminal appeal were tried by Mr. Ali Dastgir Syed, Magistrate, Section 30, Rawalpindi, under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the Order). The appellants in the jail appeal were convicted under Article 3 of the Order to suffer R.I. For five years and to a fine of Rs,20,000 and in default thereof to undergo further R.I., for one year each. These appellants were also convicted under Article 4 of the Order and were sentenced to 7 years' R.I. And to a fine of Rs,20,000 anti in default thereof to undergo R.I., for a period of one year each. The three appellants in criminal appeal were convicted only under Article 3 of the Order and were sentenced to R.I. For five years and to pay a fine of Rs,20,000 each and in default thereof to suffer one year's R.I. Each.
2. The prosecution case according to the first information report lodged on 22nd September, 1992, at the instance of Muhammad Anwar, Intelligence Officer, Custom Department (P.W.4) was that the custom authorities had received information that the passengers, namely, Sultan, Jan Said and Shah Jehan (real names of these accused later on came to be known were respectively Abdul Rehman son of Merat, Qasim Ali and Abdullah Khan) were about to board the Flight No,PK-741 from Islamabad to Jaddah (Saudi Arabia) with an intent to transport the heroin to the said place. On this information a raiding party consisting of Mumtaz Hussain Butt, Superintendent of Custom and other officials of the Custom Department was despatched to the airport. The party started the vigilance on the passenger travelling by the said flight. The aforementioned three appellants reached the P.I.A. Counter at the time when the flight had already closed and as soon as they returned, they were intercepted by the Custom Officers and on inquiry, they disclosed that they had concealed heroin in their stomach. Consequently they were taken to the clinic of Dr. S.A. Haider situated at Embassy Road, Islamabad, and recovered 990 grams of heroin through digital evacuation from the abovementioned appellants which they had concealed in the egg shaped capsules. According to the F.I.R. 450 grams of heroin was recovered from the stomach of Sultan (real name Abdul Rehman son of Merat) and 270 grams each from Jan Said (real name Qasim Ali) and Shah Jehan (real name Abdulllah Khan). The recovered heroin was in white polythene in small packets wrapped with tape total weighing 1100 grams and the weight of heroin was 990 grams which were taken into possession. From each egg of heroin, 3 mini packets weighing 10 grams each were made and sealed separately and accused were arrested after giving them notice under section 171, Customs Act, 1969, and the matter was then reported'to the local police for proceeding under Article 3/4 of the Order. It is pertinent to note at this stage that the appellants as well as the case property were kept in the custody of the Custom Department on the pretext that the Department will proceed itself under the Customs Act. It was also alleged that during investigation it was known that the three appellants were travelling on fake passports which were also taken into custody and that their real names were Abdul Rehman, Qasim Ali and Abdullah Khan. The prosecution further alleged that the three above-named accused (now convicts) on interrogation by the Custom Authorities disclosed on 2nd October, 1992 that Lalzada, Kamaluddin and Abdur Rehman son of Muhammad (the appellants in Criminal Appeal No,127/I of 194) were also involved in the trafficking of heroin and that the original passports of the three appellants, namely, Abdullah Khan, Abdur Rehman and Qasim Ali were recovered from the possession of Abdur Rehman son of Muhammad while photos of the three co-appellants were recovered form the possession of Kamaluddin. Both of them were arrested on account of these recoveries. The Custom Officials arrested Lalzada on 6th October, 1992 and statedly recovered from his possession visiting cards vide memo. Exh.P.G. And also booking cards vide recovery memo. Exh.P.N. The prosecution further alleged that Abdullah Khan, Abdur Rehman and Qasim Ali had swallowed the egg shaped capsules at the house of Lalzada. It was on the basis of the afore-noted recoveries that Lalzada, Abdur Rehman and Kamaluddin appellants were made co-accused in the case and ultimately put up for trial alongwith Abdullah Khan and two others on the charge of trafficking the heroin.
3. The prosecution at the trial produced Ahmad Maqsood, Intelligence Officer Customs (P.W.1), Abdul Razzaq Shah, Senior Intelligence Officer Customs (P.W.2), Dr. SA. Haider (P.W.3), Muhammad Anwar, Intelligence Officer Customs (P.W.4) while Sher Muhammad S.I., Local police appeared as P.W.S. The other incriminatory material consisted of recovery memos. Exh.PA., Exh.P.H., Exh.P.I., Exh.P.K.
Pertaining to recovery of egg-shaped capsules and the Chemical Examiner's report Exh.P.Q.
4. The appellants in their statements under sections 342 and 340(2), Cr.P.C., denied the allegations of the prosecution and deposed that quarrel took place with the customs staff when they came to board the flight and due to quarrel they missed the flight. It was added that in the brawl with the customs staff fits were exchanged and on account of this fight and quarrel the customs staff involved them in the case falsely and that nothing was recovered from them.
5. We have gone through the material on record with the assistance of the learned counsel for the parties. Learned counsel for the appellants Lalzada and two others submitted that no evidence whatsoever was produced by the prosecution to prove the charge under Article 3 of the Order. It was pointed out that the Custom Officer had assertedly recovered original passports of Abdullah Khan, Abdur Rehman and Qasim Ali the co-appellants from Abdur Rehman son of Muhammad but these passports were not produced. Likewise photos of the co-accused were assertedly recovered from Kamaluddin appellant but these photos were also not produced. It was also argued that the recovery of the visiting cards and the booking cards statedly recovered from Lalzada was also not proved and the site plan of the house in which the three co-appellants were made to swallow the egg shaped capsules was not even prepared, what to say, of producing the same in Court. Learned counsel for the State in view of the aforenoted state of the prosecution evidence was not able to defend the conviction under Article 3 of the Order of Lalzada, Kamaluddin and Abdur Rehman son of Muhammad. Learned Magistrate convicted these three appellants by observing that they were planners and had helped the other three accused to transport and smuggle heroin to Saudi Arabia, and so they were fully involved in the commission of the offence under Article 3 of the Order. The aforenoted finding is based on no evidence. Even the original passports, the photos, the visiting cards and the booking cards statedly recovered were not produced. Had these been produced, the ingredients of the offence under Article 3 of the order would have remained unestablished. The Intelligence Officer who arrested these three appellants and made them to face the trial acted in a most arbitrary manner and as a matter of fact there being no incriminatory material with him these appellants should not have been made to suffer the agony of a trial and then detention. We are constrained to note that even Mr. Ali Dastgir Syed, Magistrate, Section 30 failed to do justice with these three appellants. Any judicial officer applying mind judicially, reasonably and fairly would not have convicted the three appellants on the basis of the evidence that the prosecution produced against them in this case. There being no evidence whatsoever on record to prove the charge under Article 3 of the Order we have no alternative but to set aside the conviction and sentences of Lalzada, Kamaluddin and Abdur Rehman son of Muhammad. We order accordingly.
6. As regard Abdullah Khan, Abdur Rehman and Qasim Ali appellants, the prosecution relied on the testimony of Ahmad Maqsood (P.W.1), Abdur Razzaq Shah (P.W.2), Dr. S.A. Haider (P.W.3), Muhammad Anwar (P.W.4), the recovery memos. Exh.P.A., Exh.P.H., Exh.P.J., Exh.P.K. Exh.P.L. And Chemical Examiner's report Exh.P.Q. The testimony of the aforenoted witnesses read with documentary evidence on record at best shows that the egg shaped capsules were recovered from the abdomen of the three appellants. The recovered heroin was allegedly secured in white polythene in small packets wrapped with tape which weighed 1100 grams in all while the weight of heroin was 990 grams and that from each egg of heroin, 3 mini packets/parcels as specimen weighing 10 grams each were separated and sealed. Thus, the specimen packets sealed separately consisted of 33 packets. Ahmad Maqsood (P.W.1) in his statement referred to recovery memo. Exh.P.A. Which also contains the recital the from each capsule-three packets of 10 grams each were sealed as specimen. Abdur Razzaq Shah (P.W.2) repeats the same version of separately sealing a specimen three packets of 10 grams each. Muhammad Anwar (P.W.4) in cross- examination accepted the suggestion as correct that three packets of 10 grams each were taken out from each capsule as sample for chemical examination and these were 33 packets and that the packets of 10 grams each were sealed in a separate parcel while 11 capsules of recovered heroin were sealed in another packet. The Chemical Examiner's report Exh.P.Q. Shows that the packet which was received by the chemical examine for chemical examination consisted of 11 packets only as against the 33 packets which were sealed into a separate parcel as per the evidence of the prosecution witnesses. It is pertinent to note that though Dr. S.A. Haider states that he recovered the 11 capsules from the abdomen of the three appellants but the prosecution evidence does not show as to who had received the said capsules from Dr. S.A. Haider (P.W.3) on the date of their recovery i,e, 22nd September, 1992 and in whose custody the said capsules remained till 24th September, 1992 when the docket No,4158, dated 23-9-1992 was received in the laboratory of the chemical examiner. One Shahzad Haider mentioned as a person who had delivered the packet in the office of the Chemical Examiner was, however, not produced at the trial and it is, therefore, not known as to from whom and when he had received the packet. Thus, the prosecution failed to establish that the packets which were examined by the Chemical Examiner were the same which were recovered by Dr. SA. Haider (P.W.3) from the stomach of Abdullah Khan, Abdur Rehman and Qasim Ali appellants through digital evacuation. It is, therefore, to be seen that the most important link in the prosecution story is missing and as such it cannot be held that the egg shaped capsules alleged to have been recovered from the abdomen of the appellants contained heroin. On the basis of the deficient evidence it cannot be held that the offence under Article 3 or Article 4 of the Order stood established. In these circumstances there is no alternative but to set aside the conviction and sentences of the appellants. We order accordingly. The impugned judgment is, therefore, set aside. The two appeals succeed and are hereby accepted.
No basis to proceed with criminal suo motu revision remains, the same is, therefore, dismissed.