JUDGMENT DR. GHOUS MUHAMMAD, J. -- On 17 7.1996 this appeal was allowed by a short order.
Hereafter appear the detailed reasons. The instant appeal under section 185-F of the Customs Act.
1969 (hereafter "the Act 1969") arises out of conviction of the appellant through judgment passed by the Special Judge (Customs and Taxation) Karachi dated 30.3.1994 in Case No. 69/1993 whereby the appellant was convicted under section 156(1 )(8) of the Act 1969 and sentenced to undergo rigorous imprisonment for 10 years plus fine of Rs. 5 lac. And in default of the latter to undergo a further rigorous imprisonment for 2 years, while allowing deduction of the lime spent in jail by the appellant as an under-trial prisoner.
2. The facts necessary for disposal of the present appeal are that the appellant, Royce Dean Wellman, an American National holding American Passport No. Z-6%3651. While on his exit from Pakistan was intercepted and arrested at the Quaid-e-Azam International Airport on 02.03.1993 on charges of attempting to smuggle 5 kg. Of heroin powder. Noor Ahmed Panhwar. The complainant and seizing officer lodged FIR on 02.03 1993 at 10.00 p.m. Since the basis of allegations by the prosecution are contained in the F.I.R, the contents whereof are being reproduced as under:- "On 02.03.1993. While I was performing my duties at the International Departure Hall. Jinnah Terminal Complex. Quaid-e-Azam International Airport, Karachi, where baggage examination of the outgoing passengers of the Gulf Air's Flight No. GF-733 for Muscat was in progress. I suspected and intercepted a passenger, later on identified as Royce Dean Wellman holding US Passport No. Z- 6963651, who was leaving for Frankfurt via Muscat by the aforesaid flight.- The passenger was asked to declare whether he was carrying any contraband goods i.e. Narcotics etc., in his baggage or on his person to which he denied. Being dissatisfied with the passenger's declaration pis baggage comprising a blue colour 'Corallite' suitcase was subjected to examination in presence of two independent witnesses M/s. Mazhar Abbas and Muhammad Shahbaz. The suitcase which apparently, contained personal belongings of the passenger upon minute examination was felt somewhat heavy in weight. As such the top and bottom of the said suitcase was broken which led to the recovery of 4 polythene bags each cleverly concealed in the false top and bottom of the suitcase. Further examination of these 8 polythene bags yielded the recovery of brown colour heroin pooder. The brown colour heroin powder, so recovered, on weighment was found to be 05 kgs. (gross) and was seized along with containers & travelling documents of the passenger under the cover of a musheernama prepared on the spot. Representative samples of the seized heroin were also drawn which were sealed and signed by both the witnesses. Passenger/accused namely Royce Dean Wellman was arrested and a notice under section 171 of the Customs, Act. 1969 was served upon him".
The investigation was carried out by SPO Javed Akhter Mughal and the seized heroin powder was deposited in the state warehouse. After due. Investigation the final challan was submitted on 14.6.1993. Wherein one of the alleged culprits Muhammad Aziz was shown as an untraceable accused against whom proceedings under section 512 C Cr.P.C, were initiated, while he was declared as absconder. Formal charge under section 156(l)(8) of the Act 1969 was read out to the appellant to which he pleaded "not guilty". The prosecution then examined 4 witnesses namely.
P.W.1 being the complainant/seizing officer i.e. Noor Muhammad Panhwar (Ex. 4). P.W.2 Fe.
Mohammad Iqbal Malik the Deputy Assistant Medical Examiner Customs Laboratory (Ex 5). P.W. 3 i.e. Muhammad Shahbaz. Who acted as a mashir of seizure of heroin powder (Ex 6 and P.W. 4 i.e. Javid Akhter Mughal, who had investigated this matter (Ex 7). P.W.1. Noor Mohammad Panhwar. In his testimony supported the contents of the FIR as he deposed that while on 02.03.1993 when he was posted in the International Departure Hall of Jinnah Terminal. Quaid-e-Qazam Airport at about 6.15 p.m. The appellant proceeded at the customs clearance-counter. Upon suspecting the appellant he inquired from him whether he was carrying any contraband item which was denied by the appellant. Being dissatisfied he called two mahsirs namely Mazhar Abbas and Mohammad Shahbaz and in their presence he examined the appellant s baggage which comprised one blue coloured aerolite suitcase. On breaking the upper and other parts of -the suit-case polythene bags containing brown coloured powder were obtained. The brown coloured powder when tested was found to contain heroin powder. It has been alleged by P.W. 1 that the total weight of the polythene bags was 5 kg. And the heroin powder was seized under the mashirnama (Ex. 4A) which was prepared on the spot in the presence of mahsirs Mazhar Abbas and Shahbaz whereafter the travel documents of the appellant along with his passport and air ticket were also seized (vide mashirnama Ex. 4B and 4C). It has further been stated by P.W. 1 that the appellant was arrested on the spot and a notice under-section 171(1)(8) of the Act 1969 (Ex. 4D) was served on him. Thereafter three samples from the heroin powder were prepared While the remaining heroin was sealed and kept in a white cloth bag which was also sealed on the spot. The appellant and the seized property were taken to the Customs House and handed over to I & P Branch. P.W.4 i.e. Javed Akhtar Mughal, the Investigating Officer, submitted an interim Challan on 16.3.1993 followed by a final Challan on 14.0601993. In his statement recorded under section 342 Cr.P.C, the appellant pleaded innocence and alleged false implication. He also stated that the suitcase in dispute did not belong to him and was only lying on the customs counter already before he entered the departure hall.
3. The learned trial judge formulated the following points for determination:- "1. Whether five kgs. Of Heroin Powder was recovered from the suitcase which was being carried by accused while he was intercepted in the International Departure Hall and was to travel by Gulf Airline light No. GF-733?
2. What offence, if any. The accused is guilty of 7
3. What should the sentence be?"
On point No. 1 the learned judge found the appellant guilty while convicting him convicted and sentenced him as stated above.
4. I have heard Mr. Rana M. Shamim learned counsel for the appellant and Mr. R.A. Essani the learned D.A.G. For the state and also perused the record as well as the cited case law.
5. The learned counsel for the appellant vehemently urged:
(a) that the impugned judgment is based on mis-appreciation and non appreciation of the evidence led by the prosecution;
(b) that no independent witness as mashir of recovery was taken by the prosecution:
(c) that there is delay of 3 hours 45 minutes in lodging the FFR for which the prosecution has not offered any plausible explanation;
(d) that the trial court has failed to take into consideration that the time of preparation of mashirnama is 1815 hours and the time of registration of FIR is also 1815 hours, which clearly suggest that the prosecution story is a fabricated one:
(e) that there is no evidence to establish that the appellant was carrying the disputed suitcase;
(f) that the learned trial court did not appreciate the procedure regarding sampling, test, storage etc. Of the seized/confiscated narcotics which was not done in accordance with the Customs General Order No. 12/86 dated 31st July. 1986 (reported as PTCL 1986 St. 951(ii):
(g) that the learned trial court also totally ignored the material contradictions in the evidence of the prosecution witnesses.
6. On the other hand, the learned D.A.G, while supporting the impugned verdict of conviction submitted that the mahsirs, though were officials of the Customs, were equally good witnesses and therefore there was no reason to dis-believe them particularly when no enmity or bias was alleged against them. In support of his submission he cited Karim v. Nazir Ahmed (PLJ 1980 SC 446).
Mohammad v. Stare (PLJ 1982 SC 79). Mohammad Hani/ and another v. The State (1979 P.Cr.L.J.
1078). Mir Khan and others r. The State (PLD 1968 Karachi 903), Qabool and another v. The State (PLD 1976 Karachi 1205). Mushtaq Ahmed v. The State (1995 SC MR 510), Saeed v. The State (1995 P.Cr.L.J. 1203). Arbab Ali r. The State (1995 P.Cr.L.J. 1272 (FSC). Ali Hassan and others v. Mukhtar and others (1983 SCMR 806). Hizbullah v. The State and another- (PLD 1984 Quetta 1). Regarding contradictions in the statement of witnesses the learned D.A.G, has submitted that those are of trivial nature and minor discrepancies or omissions are of no. Importance which can exist due to lapse of time. In support of his submissions he cited Aurangzeb v. The State (1978 SCMR 255).
Roshanand 4 others v. The State (PLD 1977 SC 557), Bachai v. The Stale (PLD 1963 (W.P.) Karachi 1062), Mookha Zulfiqar and 9 others (PLD 1978 SC 10). Sher Mohammad and others v\ The Stare (PLD 1959 (W.F.) Lahore 124). Allah Yar v. State (PU 1976 B.J. 39) and Zakir Khan and others v. The State (1995 SGMR 1793). He has further submitted that the appellant being carrier of narcotics is not entitled to a lenient treatment. He relied upon Nadir Khan and another v. The State (1988 SCMRR 1899). Boniface A. Burayan r. The State (PLD 1991 SC 988). Alam Masood v. The Stare (1988 SC MR 64), The State through DAG v. Muhammad Siddique (1996 SCMR 246). He further submitted that section 103 Cr.P.C, is analogous to section 165 of the Act 1969 but in the instant case no personal search of the appellant was taken and during search of the baggage, the intoxicants were secured particularly in cases of narcotics a strict compliance of section 103 Cr.P.C, is not necessary. He cited Muhammad Akhtar v. The State (1995 SCMR 693) and Muhammad Jameel v. The State (PLD 1996 Lahore 190). Regarding the FIR he submitted that in the absence of any enmity the alleged delay in making of the FIR is not fatal to the prosecution but even otherwise the FIR is not expected to be a detailed document. It is also not a substantive piece of evidence. It can be used only to contract its maker. In support of this submission he cited Zar Bahadur v. The State (1978 SCMR 136). Arbab Shah and 3 others v. The State (1976 P Cr.LJ. 40). Fazalur Rahman and 2 others v. The Stale (PLD 1971 Lahore 883). Khushi Muhammad v. The State (PL1 1983 SC 393), Mazharul Haq v. Ishaque Sardar and 15 others (PLD 1962 SC 480), Siraj Din v. Kala and another (PLD 1964 SC 26). Fateh Muhammad v.
State (1974 P.Cr.L.J. Note 84), Ms/. Citatum Bihi and 4 others v. Muhammad Shaft and 3 others (PLD 1977 SC 28) and Nasir Ahmed v. The State (1971 SCMR 398).
7. The principles of law enunciated in the decisions relied upon by the learned D.A.G, carry no cavil, however, the same are not applicable to the present facts of the case. It is again a settled proposition of criminal jurisprudence that precedents do not carry the same binding force as would be in civil law. In criminal cases the tacts of the case have to be seen in their clear perspective, (see Nazar Muhammad (PLD 1978 SC 236). Gulab Khan (D.B.) PLD 1971 Kar. 299) and Mushtaque Ahmed v. The State (PLD 1973 SC 418.. Rabnawaz v. State (PLD 1974 SC 87) and Ghulam Muhammad v. Allah Yar (PLJ 1976 SC 208). 8.
The very basis of the entire prosecution's case is the assumption that the suitcase in dispute belonged to the appellant. There can "be no doubt that the burden of proof to establish recovery of the suitcase and connect the same with the appellant accused rested entirely upon the prosecution which it had to prove beyond all reasonable doubt. The point that in matters pertaining to Customs the principle of burden of proof is different from other criminal cases not involving Customs and in the former the entire burden is upon the accused is not applicable where the very posse ion is in dispute. There can be no presumption or assumption regarding possession which has to be established by the prosecution beyond all reasonable doubt, (see s. 187 of the Act 1969 and Qamar Ali v. The State 1975 P.Cr.L.J. 797). Also in the context of how the principle of burden of proof is to work in Custom's cases even where possession is not in dispute. I would venture to reproduce an excerpt from a decision authored by me while sitting in a division bench Le. Kamran Industries v. Collector of Customs, (PLD 1996 Karachi 68). Which reads as under:- "23. The next objection raised by the learned counsel for the respondents is. That under section 187 of the Customs Act. The burden of proof was on the petitioner rather than upon the Customs Authorities to categorically disprove the allegations of misdeclaration and under declaration levelled by the Customs Authorities, in this respect Mr. S. Tariq Ali has contended that the rulings relied upon by the petitioner counsel become inapplicable as the law has itself clearly cast the burden upon the petitioner. In order to appreciate this objection it is pertinent to scrutinise the provisions of section 187 which reads as fol lows:- "187. Burden of proof as to lawful authority etc.- When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit, licence or other document shall lie on him."
It appears to us that section 187 covers two situations which we state as follows:
(a) when a person is charged with an offence under the Customs Act. The burden of proof is cast upon him to show that he had the lawful authority to commit that act:
(b) when a person is found in possession of any goods the burden of proof is cast upon him. To show that he was holding such goods under some lawful authority, permission or licence, etc. Situation (b) is not in issue in the present case, however, we feel that it provides for an eventuality where a person is found to be in possession of certain goods which fall under a prohibited category or which in an unlawful manner find place in the possession or custody of the accused. In such case the burden is upon the accused to show that he falls under some exemption or exception to hold such goods. This type of eventuality as envisaged and stated in situation (b) above is essentially a statement of the general principle of the law of evidence contained in Article 121 of the Qanun-e-Shahadat that whosoever claims to all under a. Preferential or-exempt or excepted category must show that he fulfils that conditions to fall within that category. This obviously should not be confused with the factum of possession for which no presumption or burden of proof, has been spelt out. In view whereof the possession itself has to be proved independently by the prosecution beyond all reasonable doubts.
24. It is situation (a) as stated above in para. 23 which is directly in issue in this case i.e. Whether the burden of proof solely lies upon the petitioner to disprove allegations of misdeclaration and misdescription levelled by the Customs Authorities and whether the Customs Authorities are under no obligation to lead evidence and discharge any onus of proof. This part of section 187 of the Customs Act perhaps appears to be contrary to the general principle of the law of evidence contained in Article 117 of the Qanun-e-Shahadat that whosoever alleges existence of a particular fact must prove the same. There is little doubt that a special law or a particular statute can provide for a distinct regime of rules of evidence than contained in general law. In fact the law goes on as far as providing that the laws of evidence can be altered even by mutual consent and contract.
See S.M. Anwar Sethi v. South British Insurance Company Ltd.. PLD 1975 Karachi 458). However. On a closer scrutiny of the provisions of section 187 and the case-law settled by our Courts on the subject it appears that in such a situation it is only the evidential and tactical burden of proof which is cast upon the accused while the legal burden to bring home the allegations remains with the prosecution. Before we dilate upon the concept of the two types of burdens of proof and explain the terms "tactical", "evidential" and "legal" burdens of proof we shall first discuss the case decided by the High Court of Sind in Barkat Ali v. The Slate PLD 1973 Karachi 659. In this case the controversy revolved round section 177A of the erstwhile Sea Customs Act. 1878 which catered for a similar situation as has arisen in the present case i.e. The same provided the burden of proof upon the accused* to disprove the case of the prosecution that his intentions were not to defraud the exchequer or evade any prohibition or restriction under the Act. Writing for Court Tulail Ali Abdul Rehman's, CJ was of the opinion that the said presumption of burden of proof could not be drawn until the explanation of the accused was first taken into consideration. According to the learned Judge the "normal principle" was applicable i.e. The accused was entitled to a benefit of doubt where he offered it reasonable explanation which was either acceptable or raised a doubt, in such cases the burden then shifted upon the prosecution to establish the case. In this regard the pertinent observations are reproduced hereunder: ".... Despite S. 177A of the Sea Customs Act if upon the end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted." (At P-671).
25. Both classical and contemporary treatises on the law of evidence (Cross on "Evidence" 1967 3rd Edition. London. Butterworth. "A Practical Approach to Evidence" by Peter Murphy. 1988. 3rd Edition.
London. Blackstone Press Ltd., and "The Modern Law' of Evidence" by Adrian Keane 1985. Lst Edition.
Oxford. Professional Books Ltd., and the "The Modern Law of Evidence" by Adrian Keane 1985. 1st Edition. Oxford. Professional Books Ltd. Talk in terms of two burdens of proof i.e., the "legal" or "persuasive" burden and the "evidential" or "tactical" burden. The legal burden is defined as "the burden of proof or the probative burden and the ultimate burden" (see Keane at p. 46). The same has also been defined as "the burden of persuading the tribunal or fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in Issue". (See Murphy at p.78). On the other hand the "evidential" or "tactical" burden has been defined as "the quantum of evidence which would "establish a prima facie case". (See Murphy at p.
79). The legal burden is accordingly in our view the ultimate and final burden whereas the evidential burden requires only establishment of a prima facie case. According to the learned authors in every case there is a distinction between these two burdens are cast upon the asserter of a proposition whereas in some cases the incidence of these two types of burdens may not coincide. According to Keane the determination of where the burden falls would depend upon substantive law as well as Common sense-(see pp. 49 and 50). The mode of operation of the rules of evidence would be that the party upon whom the evidential burden is cast shall have to establish through prima facie evidence that he has an arguable case, in such an event it would then be obligatory upon the person bearing the legal burden to bring on record such material which would ultimately bring home his case. In circumstances where both the evidential and legal burdens are cast upon the same party the entire burden of proof shall be on that particular party and the distinction between legal and evidential burdens would, not serve a fructuous purpose.
However, it is in such cases where the incidence of the legal and evidential burdens are distinct i.e. The legal burden is placed on one party whereas the evidential burden lies on another, that the party on whom the evidential burden is placed has to satisfy the same by establishing a prima facie case, in such an eventuality the burden would shift to the other party who shall have to bring forth the ultimate evidence to make out a case i.e. He would have to satisfy or discharge the legal burden. The concept of shifting of burdens of proof is not alien to even our jurisprudence. The shifting of burdens of proof have been discussed and approved in Msl. Safia Begum v. Mst. Malkani and another. (PLD 1980 Lahore 145) Government of Pakistan v. Maoulvi Ahmed Saeed (1983 CLC 414), Muhammad Sarwar v. Fazal Rehman's (1982 CLC 1286) and Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir (1984 CLC 325). In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has been acknowledged, however, the reason as to why such a legal fiction takes place has not been discussed. We feel that it is due to operation of the principles of incidence of burdens of proof vis-a-vis "legal" and "evidential" burdens as discussed above that the process of shifting of burdens become possible.
We have already cited the opinion of Adrian Keane and we hold that in order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, the case-law on the subject as also common sense and equity. In this case we are of the view that in the situation in issue i.e. (a) as discussed in para. 23 above, section 187 casts upon the petitioner- accused only the obligation to make out a prima facie case as it is only the evidential burden which is borne upon it. Once the petitioners were to satisfy this evidential burden which is borne upon it. Once the petitioners were to satisfy this evidential burden, the legal burden to bring home the ultimate cases lifted upon the customs authorities. The question is now essentially to determine as to whether the petitioner was able to discharge the evidential burden. Evidential burden essentially requires making out a prima facie case which is arguable and at least raises a doubt in the mind of the Court. The very fact that this petition has been admitted to regular hearing confirms that the petitioners had made out a prima facie case in view whereof we hold that it has discharged the evidential burden. In any event the facts and circumstances of the case are such and the explanations offered by the petitioner are of such a quality which at least raises a doubt in favour of the petitioner. The contention of the learned Standing Counsel that no duty was cast upon the Customs Authorities to bring home any evidence in support of its case*is incorrect. We are of the view that heavy onus, being the ultimate legal burden, shifted upon the Customs Authorities to come upon with independent and cogent evidence against the petitioner which they have failed to discharge. In fact, even in the cases relied upon by Mr. Farogh Naseem i.e. Eastern Rice Syndicate v. C.B.R. (PLD 1959 SC (Pak.) 364). The Collector, Central Excise and Land Customs, Chittagong v. Imdad Ali (1969 SCMR 708) and M/s. Latif Bros. v. Deputy Collector Customs, Lahore (1992 SCMR 1083), the Supreme Court has clearly held that the ultimate burden of proof lay upon the Customs Authorities which cannot be said to have been discharged merely on account of weakness in the evidence of the importer. The first two cases i.e. Eastern Rice Syndicate and Imdad Ali were adjudications upon section 39 of the erstwhile Sea Customs Act (which is comparable to the present section 32 of the Customs Act, 1969). In both those cases we cannot hold that the Courts were oblivious to the provisions of section 193G of the Sea Customs Act which is almost identically worded to the present section 187 of the Customs Act. The said section 193G of the Sea Customs Act, 1878, is being reproduced for convenience: "193G Burden of proof in certain cases.- Where any person is tried for an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him."
Even in the recent decision of Latif Brothers which touched upon section 32 of the Customs Act, 1969, the court followed the earlier decision of Eastern Rice Syndicate. For that case also we do not feel that the honourable Supreme Court closed its eyes to the provisions of section 187 of the Customs Act. We accordingly held that the contention of Mr. S. Tariq Ali inviting as to hold these Supreme Court judgments as per in curiam is misplaced. These decisions are respectfully very sound and accordingly bind us under Article 189 of the Constitution. Before parting with the discussion on section 187 of the Customs Act we are of the view that in case the interpretation on the lines invited by the learned Standing Counsel were to be adopted i.e. That for every offence for which the accused is charged under the Customs Act he shall have to disprove the allegations of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statutes which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discretion vested upon the executive authorities. As absolute power corrupts an interpretation fettering the discretion of-the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. In case we were to hold that due to section 187 the entire burden to disprove the entire case rest upon the accused alone, the executive authorities would be let loose and given a were, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided".
9. The matter pertaining to possession of the suitcase in the present case was held in dispute as all along the appellant had challenged the same. The requirement in the present circumstances of having independent mahsirs of seizure of the suitcase could not be dispensed with as the very identity of the suitcase was crucial and subject-matter of challenge by the appellant. Apart from a notice under section 171 of the 1969 Act there existed no other document which could connect the appellant with the suitcase. As regards the notice under section 171 the same itself was challenged by the appellant especially when the seizing officer admitted that he had not written the notice himself (and only signed it) nor the prosecution brought forth the testimony of the person having written the said notice in his handwriting. The grave infirmity obvious in the-conduct of the prosecution being its default to comply with Customs General Order No. 12 of 1986 dated 31.7.1986 prescribing procedure for storage/sampling of seized heroin and other narcotics which I reproduce for the sake of convenience:- "SUBJECT:-STORAGE/SAMPLING OF SEIZED HEROIN AND OTHER MARCOTICS.
The Central Board of Revenue is pleased to lay down the following procedure regarding sampling, testing and storage etc. Of seized/confiscated heroin and other narcotics:-
(i) The seizing officer/officials shall conduct an on-the spot test with field kits to satisfy themselves that the seized substance is heroin. The officer performing the test with field kit shall prepare a written memo to the effect that he performed the test and it showed positive result about the presence of heroin etc. And other officers/staff accompanying him shall sign the written memo as witnesses to the said test. The fact about the test with field kit and the positive result shall invariably be mentioned in the FIR and AIR.
(ii) After seizure of heroin and other narcotics three samples shall be drawn. Each sample will be carefully placed in a polyester polythene bag 8 x 10 cm avoiding contact with moisture and heat.
The bag should be sealed electrically (with a domestic hand sealer), with due care not to allow the sample to come in contact with the hot part. The sealed polyester polythene bags shall be further sealed in a cloth bags 12 x 15 cm with the conventional lac seals. The seizures should be sampled for laboratory examination according to the following minimum quantities: -
1. Heroin
2. Charas/Cannabis Hashish
3. Hashish oil
4. Opium
5. Drugs in the form of tablets or capsules.
5 gm Approximately 10 gm Approximately 10 gm Approximately 10 gm Approximately 10 tablets/Capsules (i.e) Each sample will be sealed by the seizing officer who shall affix his signatures both on the polyester/polythene and cotton bags along with his name and designation. Another officer/staff present on the spot will also sign likewise as a witness. All the signatures will be put in such a manner that the same cannot be obliterated/destroyed without tearing or damaging the bags.
(iv) Out of the three samples drawn, one shall be sent to a customs laboratory and the second to an independent Government Laboratory e.g. Forensic Drug Laboratory, National Institute of Health Islamabad and PCSIR etc. For test in order to determine the percentage content of heroin along with the nature and percentage of residuary substances/nature of the seized narcotics. Seizing Agencies other than Customs will likewise send samples to two different laboratories. Samples will be invariably sent/handed over to the head of the laboratory or an officer designated by him.
Proforma annexed to this order shall accompany the samples for laboratory tests. The third sample shall be deposited in the State Warehouse along with the seized consignment for future reference. On receipt of these reports, copies thereof shall be forwarded to the adjudicating officer and the court before whom the accused are under trial.
(v) Narcotics and psychotropic substances will be stored - separately from other goods in a safe/strong room which should be provided in the premises of State Warehouse. Heroin has already been declared as "Valuable" vide Customs General Order No. 27 of 1983, dated 14th December, 1983 (Reported as PTCL 1984 St. 129(h) and the provisions of Customs General Order No. 66 of 1973, dated 19th November, 1973 are applicable to its storage etc. The heroin sealed in polyester/polythene and cotton bags shall be kept in steel almirahs/steel trunks under double lock in the State Warehouse and one of the keys of the lock shall be with a BPS-17 officer. The safe strong room should be electronically guarded and for the safe custody of such substances close circuit TV system/burglar alarm system should be provided to guard against theft and pilferage. Where the seized consignment is heavy, the sealed polythene/plastic and cotton bags may be placed in steel trunks which shall be padlocks. All the padlocks will also be sealed and the seizing officer/depositing the seized heroin in State Warehouse will put his signatures on each padlock.
The seized narcotics, particularly heroin, will be deposited in the State Warehouse not later than forty eight hours after the seizure.
(vi) Each Director-General/Director/Collector/Head of the other seizing Agency shall constitute a Committee consisting of officers not below the rank of an Assistant Collector/Assistant Director or an officer of equal rank and Collector/Assistant Director or an officer of equal rank and a representative of the Pakistan Narcotics Control Board (PNCB) to supervise destruction of heroin and other narcotics by burning. The confiscated narcotics will be destroyed only after the final completion of the case both in the Court of law and the departmental adjudication or after the completion of adjudication proceedings with the permission of the Court, in which case at least 3 samples will be retained in the manner as the Court directs. A written memo shall be prepared in quadruplicate at the time of destruction indicating the particulars of the case and the quantity destroyed. The officer putting the narcotics to fire shall sign the memo indicating his name and designation along with the place, date and time of destruction. The officer supervising destruction not below the rank of an Assistant Collector/Assistant Director or an officer of equal rank, shall countersign the same while representative of PNCB and the concerned officer of State Warehouse shallsign as witnesses. One copy each of the memo so prepared shall be placed on the record of State Warehouse, adjudication file, seizure file and the case file of the Court concerned with the trial of the case involving the narcotics in question.
2. The concerned Directors General/Directors/Col lectors/ Heads of the other seizing agencies are required to make all necessary arrangements so as to enforce the provisions of sub-paras (i) to
(iv) above within a maximum period of three months from the date of issue of this General Order.
The provisions of sub-para (v) above concerning installation of close circuit T.V. System or burglar alarm system and storage in steel almirahs/steel trunks etc. Will be enforced within six months of the issuance of this General Order subject to the availability of necessary funds to procure the required equipment etc. The provisions regarding deposit of seized narcotics in the respective State Warehouses not later than forty eight hours after seizure and the procedure regarding destruction of confiscated narcotics (para VI above refers), will come into force with effect from 1st September, 1986."
10. In view of the facts as pointed out above it is not safe to maintain the conviction of the appellant who is entitled to a benefit of doubt. In relation to the principle of benefit of doubt it would not be out of place to state its ethos which has been very aptly propounded in Ryan's Medical Jurisprudence, 1836 which is as under:- "It is a preferable situation when 10 guilty men go unconvicted than one innocent man getting punished. "(For further references on this golden rule of benefit of doubt extending to the accused).
See Sali Sheikh and another v. Emperor AIR 1931 Calcutta 752, Zaab Din and another v. The State PLD 1986 Peshawar 188. Sikandar v. The State PLD 1963 SC 17, Muhammad Luqman v. The State PLD 1970 SC 10 and Syed Rahim Shah v. Govt of N.W.F.P, and others PLJ 1982 (Peshawar 74)."
11. This golden rule of benefit of doubt emanates from the principle that in criminal cases the prosecution is to establish guilt regarding all elements of the crime beyond all reasonable doubts.
In ail civilised legal systems such is the position. It would not be out of context here to cite the American Jurisprudence (AJ) in this regard
(a) "In a criminal prosecution, in order to warrant a conviction, the State is required, in the discharge of the burden imposed upon it of establishing by proof all the essential elements of the crimes with which the defendant is charged in the indictment, to establish beyond a reasonable doubt that the accused is guilty of that crime; and in the absence of such a degree of proof of the defendant's guilt, he is entitled to an acquittal, regardless of whether his character is good or bad.
It is not sufficient that the preponderance or the weight of the evidence point to the guilt of the accused. The rule obviously is based upon broad principles of humanity, which forbid the infliction of punishment until the commission of the crime is to a reasonable certainty established. It has received the sanction of the most enlightened jurists in all civilised communities, and in all ages; and with the increasing regard for human life and individual security, it is quite apparent that the energy of the rule is in no degree impaired.
The rule requiring proof beyond a reasonable doubt applies to all crimes, regardless of their character or the degree of the crime. However, well-founded the contention that more evidence should be required to convict of a serious crime than of a trivial one may be in morals or philosophy, it has no place in the law.
The rule in all criminal prosecutions is that proof beyond a reasonable doubt is required. To sustain a criminal conviction for the violation of a penal statute, it is not enough for the state to show that the prisoner indicted has violated the spirit of the statute, the evidence must show beyond a reasonable doubt that he has offended against the letter of the law.
(Vol. 20 A.J. p. 1108-1109).
(b) The law imposes upon the state in a criminal prosecution the burden of proving the case set forth in the indictment or information, in all its material parts, beyond a reasonable doubt, and the jury in their analysis of the evidence must find, in order to convict, that all the elements of the crime charged have been established by such a degree of proof; otherwise, it is their duty to acquit the defendant. Each and every material and necessary fact upon which a conviction depends must be proved beyond a reasonable doubt."
(Vol. 20 A.J. p. III).
In view of the above the appeal is allowed and the appellant acquitted.