1. ' This appeal has been filed challenging the judgment passed by the Special Judge (Customs and Taxation), Karachi in Case No,114 of 1993 whereby the present appellant was convicted under section 156(1)(8) of the Customs Act, 1969 and sentenced to undergo R.I. For six years and to pay a fine of Rs,1,00,000 or in default to undergo further R.I. For one year. The benefit under section 382-B was also extended to the appellant.
2. ' Briefly the facts are that on 15-5-1993 when the complainant was performing his duties at International Departure Hall of Jinnah Terminal at Quaid-e-Azam International Airport, Karachi that he received spot information to the effect that an Afghan born passenger would make attempt to smuggle heroin out of Pakistan to United States by a Gulf Air Flight and, therefore, a discrete surveillance was maintained and as a result the present appellant was intercepted who had held United States Department of Justices Travel Permit No,2558498. Scrutiny of ticket revealed that he was leaving for New York via Abu Dhabi and Frankfurt by the Gulf Air Flight No,GF-4019. He was asked to declare whether he was carrying any contraband goods, specially narcotics, to which he replied in negative. A search of luggage containing of three suit-cases was undertaken and from the one suit-case of maroon colour (Eminent) the heroin powder was recovered on ripping open the top and bottom of the suit-case. The said heroin powder weighed about two kilograms. The search also revealed two tooth paste tubes, two waist-coats and shampoo bottle which also contained white heroin powder. Altogether a total of 3.325 Kg. Of while heroin powder and Rs,4,500 in Pakistan Currency and US $ 21,100 were also recovered. According to the Investigating Officer three samples were drawn out which were sent to Chemical Analyser for report and after a positive report the case was sent up for trial. Appellant was charged to which he pleaded not guilty. The prosecution ' examined six witnesses, namely, the complainant Mushtaq Ahmed, Mashirs Muhammad Mustafa and Shoukat, Muhammad Iqbal Malik, Deputy Assistant Chemical Analyser, S.P.O. Shahid Ahmed Khan, who assisted complainant in apprehension and the search of accused and seizure of the contraband and finally Hafiz Muhammad Ali, Investigating Officer. The statement of accused was recorded under section 342, Cr.P.C. He has also examined three witnesses in defence. The trial Court after hearing the arguments of the counsel for the accused and the Prosecutor was pleased to convict and sentence the appellant as above.
3. ' I have heard Mr. Shoukat Hussain Zubedi, learned counsel for the appellant and Mr. S. Tariq Ali, Standing Counsel for the State.
4. ' The counsel for the appellant has pointed out that according to the judgment the main points for determination was whether 3.325 kilograms of heroin powder was recovered from the baggage carried by the accused and the shoes worn by him. The counsel for the appellant has assailed the findings of the trial Court on a number of grounds. The main contention of the learned counsel for the appellant is that the very question as to whether the alleged recovered goods from the appellant consisted of heroin powder has not been proved by the prosecution and even on this score alone the appellant would be entitled to acquittal. At the very out set the learned counsel for the appellant has pointed out that according to the F.I.R. And the evidence of complainant it is transpired that from the shoes worn by the appellant and from the top of the suit-case, "Eminent" carried by the appellant the heroin powder was recovered and also that the luggage of the appellant contained two tooth paste tubes which had heroine and so also one shampoo bottle.
5. The learned counsel has referred to the evidence of the complainant who further states that from these articles he had drawn three samples which were sent to the Chemical Analyser and the report and test memo. Which are at pages Nos.35 and 36 of the paper book and are just the face page and reverse page of the same document clearly show that the number allotted to the report for the samples received by the Chemical Analyser and subjected to test, is PNCB/70/93. The abbreviation PNCB stands for Pakistan Narcotics Control Board submits that this report was in a case of the said board and not the case of customs authorities. At page 35 (Exh.6-A) of Paper Book the report shows that one sealed sample in duplicate was received by the Chemical Examiner which was headed as heroin. This report does not show if the Chemical Analyser had received three samples as stated by the complainant and also the Investigating Officer. Nor does this report show that these samples contained any tooth paste tubes or any sample of shampoo. Even the weight of the sample received by the Chemical Analyser has not been stated. According to this report only the sample received from one sealed packet was found to be heroin of commercial grade. It has further been pointed out by the counsel for the appellant that there is no evidence on the record as to how these samples were sent to the Chemical Analyser. He has argued that this is a very important link in evidence connecting the appellant with the smuggling of narcotics which is missing. He has placed reliance on the case of The State v. Muhammad Aslam 1993 PCr.LJ 2287, wherein Federal Shariat Court has held as under:-- "6. It shall be seen that no evidence was brought on the record to show as to who had taken the parcel of the sample to the Office of the Chemical Examiner. Although the report of the latter is on the record but it cannot be taken into consideration because there was no evidence to connect this report with the heroin which was alleged to call upon two or more respectable persons in the locality in which place the search is to be carried out. The emphasis is on the words "respectable' and "locality". There is no explanation from any witness, Investigating Officer or the complainant as to whether any effort was made to associate any private person to act as Mashir. In these circumstances, I am of the view that the prosecution has failed to comply with the provision of section 103, Cr.P.C. And that such non-compliance would be fatal to the case. Mr. S. Tariq Ali, Standing Counsel for the State has submitted that this lacuna by itself cannot be fatal to the case as it has been held that even the Police Officers would be competent and reliable witnesses. He has placed reliance on the case of Zardar v. The State 1991 SCM R 458. No doubt the evidence of a Police Officer in a case cannot be outrightly ruled out but as discussed above the provision of section 103, Cr.P.C. Do provide that the witnesses of the locality who are respectable persons are to be associated to act as Mashirs in such circumstances in the first instance. It is now well-settled law as held by the Supreme Appellate Tribunal in a number of cases that the evidence of such Police Officer would be incorporated subject to the condition that the prosecution should show that they had made efforts to incorporate private persons as witnesses and it is only after their failure in such efforts that such Police Officer can be accepted as witnesses of search and arrest.
6. ' The learned counsel for the appellant has further submitted that the two Mashirs have not supported the case of the prosecution inasmuch as they have stated that these Mashirs of seizure and arrest were not read over to them and they do not know the contents thereof. In view of this evidence of Mashirs and the above discussion I am of the view that these Mashirnamas have no legal sanctity and cannot be relied on as material evidence.
7. ' As regards the factual aspect of the case the learned counsel for the appellant has referred to the evidence of complainant who has stated that the appellant was intercepted in the departure lounge and that of all the three suitcases he was carrying, no incriminating article was recovered from the first two suit-cases which were of the make "Sabina" and "Samsonite" but the third suitcase "Eminent" was found to be unusually heavy and on piercing the top and bottom of the suit-case with a poker off-white powder was found to be concealed therein. Whereas the evidence of Investigating Officer shows that the top of the suit-case was ripped open. Again the complainant states that the appellant had come to customs counter where he was performing his duties whereas the F.I.R. And the evidence of the Investigating Officer show that the appellant was arrested and searched in the departure lounge. Further, evidence on this point shows that the appellant was taken to the office of the Customs situate at the Airport and he was searched and Mashirnama was prepared there at the office. This admission itself goes to show that the search was not made and seizure was not made at the place where he was intercepted but the same was done at the office of the Customs situate at the airport. This by itself is contrary to requirement of law. Reliance is placed on the case of Hamzo and 2 others v. The State 1972 PCr.LJ 478, wherein a Division Bench of this Court has been pleased to hold that in case Mashirnamas were prepared at the Police Station, articles sealed and packed at the police station and not at the place and time of recovery then such recovery would be doubtful. The learned counsel appearing for the State has placed reliance on the case of Bhai Khan and others v. The State PLD 1969 SC 101. In this case the principle that was laid down by the Honourable Supreme Court is that the Appellate Court will not lightly interfere with finding of the trial Court and make any observations at the demeanour of the witnesses. The learned counsel has further relied on the case of Mir Muhammad v. The State 1968 PCr.LJ 378, in this case a learned Single Judge of Lahore High Court has held that it will not be sufficient to ignore the entire statement of a witness if he is not found to have told truth in one or two particulars. The next case relied on by the learned counsel for the State is that of Allah Yar v.
8. The State 1984 PCr.LJ 2934, wherein a Division Bench of Lahore High Court has held that even if inadmissible evidence has been brought on record, the same cannot be excluded at a later stage.
9. There is no cavil about the principles laid down in the above cited cases by the Supreme Court.
10. However, the question is whether the same would be applicable to the present case. In these circumstances and from the discussion above, it could certainly be observed that the burden essentially is on the prosecution to prove the case against the accused beyond any reasonable doubts. At one stage Mr. S. Tariq Ali, learned Standing Counsel had argued that these are the new points urged by the appellant in the present appeal and there were no such suggestions in the cross-examination of the witnesses in the trial Court. I am not agreeable to the contention raised by the State Counsel. There are such suggestions in evidence, may not be in direct form. However, the burden is not on the accused to prove his innocence. All that an accused is required to do is only to make a dent in the prosecution case and once he succeeds in doing so he would be entitled to benefit of doubt. In the present case as discussed above the prosecution has failed to prove that it was the same material recovered from the appellant which was sent to the Chemical Analyser for his report and that the recovery was made from the appellant in accordance with the legal requirements. In this view of the matter I am inclined to extend benefit of doubt to the appellant. Accordingly, I accept this appeal, set aside the conviction and sentence awarded by the trial Court and acquit the appellant. The appellant is in custody, he shall be released forthwith if not required in any other case. The properties of the appellant which are not in the nature of narcotics and comprise of the American and Pakistani currency shall restore to the appellant.