JUDGMENT SHAFI MOHAMMADI, j.- Appellant Mst. Rose Nyokabi Wacira, a Kenyan National was convicted and sentenced by the learned Special judge (Custom and Taxation) Karachi, vide order dated 18th September 1994, under Section 156(1)(8) of the Customs Att to suffer R.I. For 7 years and pay fine of Rs.2,00,000/- Ind in default of payment of fine she has to undergo R.I. For two years with benefit of section 382-B Cr.P.C.
2. It was reflected by the prosecution story that appellant was intercepted on 12.12.1992, at about 5.00 A.M. By Preventive Officer Noor Ahmed Panwar in the international departure Hall, Quaid-i- Azam International Airport Karachi on suspicion of having contraband narcotics when she was bound to leave for Nairobi by Kenya Airlines. As the appellant had denied for having any contraband narcotics, therefore, in presence of 2 Mushirs namely Khair Mohammad and Mukhtiar Ahmed, her suit-case was searched which resulted in the recovery of 5.00 Kg. Heroin powder concealed in the top and the bottom of the said suit-case. The heroin powder was seized, the appellant was arrested after she was served upon a notice under section 171 of the Customs Act.
Investigation was conducted by Customs Officer, Ahmed Pervez Bazai on the basis of FIR lodged in the case and consequently, on the strength of evidence of 5 witnesses, she was found guilty, convicted and sentenced as mentioned in para 1 above.
3. The appellant had been examined by the Court under section 342 Cr.P.C, in which she did not admit that seized 5 kg of heroin powder was secured from her. She also denied the service of notice upon her under section 171 of the Customs Act and denied her signatures on the said notice.
Similarly she denied charges of admitting to smuggle the heroin powder and did not show her willingness to be examined on oath or to produce evidence. She levelled charges against the Custom Authorities and contended to be innocent and falsely implicated by the concerned authorities. Regarding recovery of the heroin powder, she stated that she was taken to a room where several other foreigner ladies were also present and the heroin powder recovered from some one was foisted upon her.
After conviction one hand-written appeal was sent through Superintendent Central Prison Karachi.
However, the matter was argued by the learned advocate Mr. Rana Mohammad Shamim on her behalf.
4. The learned advocate for the appellant has contended that according to the prosecution two polythene bags were recovered from the top and two from the bottom of the suit-case but the samples were not drawn from each bag and, therefore, it could not be claimed that all the bags contained heroin powder. This impression was drawn from the words appearing in the evidence of the I.O. Which run as under:- "The heroin powder was seized after preparation of three samples from all the four poly-thene bags containing heroin powder and the same were sealed on the spot."
Neither these lines show that all the three samples were drawn from one bag only nor it can be presumed that three samples were drawn from each bag. But the contention of the learned advocate appears to be that only three samples in all were drawn from all the four bags. May be So as presumed and urged by the learned advocate but drawing of the samples has not been denied.
If it is presumed that samples were drawn only from one bag by taking into consideration the statement of mashirs, it can only be claimed that material contained in the remaining three bags cannot be taken into consideration with the result that sentence can also be reduced on account of the mistake of I.O. If he had taken three samples only from one bag. This mistake, however, if committed, does not make the recovery of heroin to be doubtful. It is necessary to mention that; in support of his contention, the learned counsel relied upon the judgment authored by Abdul Rahim Kazi, J. (as he then was ) in Special Criminal Appeal No. 11/94 in the case of Muhammad Amin v. The State allowed by this Court on 5th January 1993. I Considered it proper to send for the record of that appeal for my guidance but I was informed that the said record of the appeal was not available because the State had challenged the said judgment before the Hon'ble Supreme Court in a petition bearing No. 17-K/1995. Perhaps the learned advocate was not aware of this fact therefore he referred the said judgment which has still not been approved by the Supreme Court. In spite of this factual aspect I have gone through the photo-copy of the said judgment, provided by the learned counsel, very minutely and I have no hesitation to observe that the referred judgment is distinguishable from the case of the present appellant. In the case the Customs Authorities had seized 2 kg heroin powder from a suit-case of the appellant besides several other articles Stich as tooth paste tubes, 2 waist coats and shampoo bottles etc. The case of the prosecution was that heroin was also recovered from those articles too and the total weight of the white heroin powder was found to be 3.325 kg. The report appearing in the paper-book did not show that the Chemical Analyser had received samples in any of tooth paste tubes or the shampo bottles. Therefore, the Hon'ble judge of this Court had found the recovery to be doubtful. Similarly the Hon'ble Judge of this Court had also taken into consideration the violation of section 103 Cr.P.C, by the I.O. Particularly in the light of this aspect that Mashirs of the case had not supported the case of prosecution. These were the reasons that those mashirs were not relied upon. If all these realities had been kept in view by the learned advocate, it can be hoped that he would have conceded himself that the referred judgment was not applicable in the case of present appellant.
5. Next contention of the learned advocate is related to the alleged violation of section 103 Cr.P.C. It was contended that present appellant was shown to have been intercepted and arrested in the departure lounge of the Jinnah Terminal of Quaid-i-Azam International Airport where obviously a number of respectable persons were available but no one was associated as a mashir of arrest.
The background of this contention is of worth-mentioning. It was contended that this provision of law requires to call upon two or more respectable persons while in the present case one mashir is "dog-handler".
It shows that no effort was made to associate any respectable person to act as mashir. Our superior Courts have dealt with all possible questions related to section 103 Cr.P.C. The most impressive discussion has been done in a booklet written by Justice (Retd) Z.A. Channa published by Pakistan Law House, Pakistan Chowk, Karachi. I need not to discuss all these points in detail but consider it necessary to deal with one most important aspect with reference to the contention raised in the present appeal.
Section 103 Cr.P.C, contains the words "respectable" and "locality" for the two witnesses required under the said provision of law. Notwithstanding to the emphasis laid on the word "respectable" or "locality" or on both, I am of the view that respectability of a witness certainly does not depend upon the richness or the higher status of a person. The old concept of respectability under the dictatorial rules of Emperors and Nawabs must come to end now with the increase of education in a civilised and democratic society. Everyone knows it and history is witness to this reality that several Indian Nawabs/European barons and viscounts used to spend their nights with harlots as a matter of pride and not of shame by keeping themselves warmed in the arms of beauties to meet their lust for sex but their corrupt bureaucrats always found adoring on their feet only to protect their lust of earning wealth by illegal means or the wealth already earned at the cost of humanity, national unity and the integrity of motherland. Can such persons be treated "respectable" if tested on the anvil of Article 3 of the Kanoon-e-Shahadat, 1984? The answer of this question is certainly a big "No".
On account of these historically undeniable realities, I was always forced to believe that prostitutes are better than the corrupt officials because prostitutes sell their own chastity to earn their bread and butter under duress or on account of their inherited profession but the corrupt officials do not hesitate to sell their mother-land on account of their immoral lusts. In Islam, respectability of a person is embodied in the following verse: "The most honoured of you in the sight of Allah is (he who is) the most righteous of you" (S.49: 13)
The most honoured of you in.
The sightof Allah is (he who is) the most righteous of you"
Keeping in view the above verse of the Holy Quran I am of the view that an honest and poor dog- handler is more competent to serve as good witness than a millionaire dishonest bureaucrat or billionaire adorer of pillars of power.
6. After going through the paper-book very minutely, I have no hesitation to conclude that evidence of Muhammad Iqbal Malik who is Dy. Asstt. Chemical Examiner and was examined as P.W.
3, cannot be ignored for the purpose of reducing sentence of the appellant awarded by the trial Court. The relevant portion of his statement appearing in the cross- examination runs as under: - "It is correct that I did not determine the exact percentage of Heroin in the powder in dispute. I cannot say if the total quantity of heroin was only 500 grams in the five kgs of heroin powder recovered from the accused as it is not possible to do so on account of non-availability of the requisite apparatus...."
The questions asked by the learned advocate from the witness can be easily ascertained from the above lines and from these questions it can be easily realised that the. Learned advocate demolished everything which could make the case of prosecution doubtful regarding recovery of 5 Kgs powder from the appellant. No matter the said heroin contained 100% heroin or less percentage of heroin, but recovery of heroin appears to have been admitted in these questions.
Oi>the basis of replies given by the witness in cross-examination it becames evident that the seized powder contained two possibilities with reference to the percentage of heroin ie. It may contain 100% pure heroin or less than 100% heroin. Therefore, the possibility which favours the appellant has to be taken into consideration for the purpose of deciding the final fate of this appeal regarding quantum of sentence.
7. By keeping all these factors as discussed above, this appeal merits dismissal and the same is resultantly dismissed with the following modifications in the sentences along with certain directions:
(a) Sentence of R.I. For 7 years and fine of Rs.2 lac (Rs.2,00,000/-) to be paid by the appellant is reduced to R.I. For 4 years with no fine whatsoever. She shall also be entitled to benefit of section 382-B CnP. C.
(b) After expiry of the sentence, she would not be released from the prison but be deported directly to the airport for her country if all concerned papers are found ready with the concerned authorities for the said purpose before the expiry of her sentence. If these papers are not found to be ready on the date of her release, she be kept under protective detention and necessary orders for the said purpose be obtained from the concerned D.C./ authorities till such time her deportation is possible.
(c) The Prison Authorities are required to send the copy of this judgment to the Ministry of Foreign Affairs with the feelings of the Court that the concerned Office of Pakistan or Embassy situated in the country to which this appellant belongs, should blacklist this lady for visa to enter in Pakistan in future unless permitted by the Federal Government specifically.
(d) The Prison Authorities are also required to send one copy of this judgment to the Authorities of Anti- Narcotic Force so that they could inform the concerned Drug Liaison Officer of the concerned country, if any, about the conviction and sentence of this appellant and for the purpose of keeping an open eye upon the activities of this lady as well as her relations with smugglers of heroin.
8. Before parting with the judgment, I consider it necessary to mention the sentence of the appellant was reduced due to her better conduct in the prison as confirmed by respectable officials of the Jail particularly the Lady Magistrate as well as on account of her ailing mother and innocent children otherwise these enemies of humanity are not entitled to any mercy. It is hoped that the appellant would repent by seeking mercy of Almighty Allah.