' MRS. KHALIDA RACHID, J.--- This judgment contains the reasons for the short order of acquittal announced on the conclusion of the arguments of the learned counsel for the parties on 5-11-1998.
2. Pursuant to spy information received by Syed Haider Ali, Assistant Collector Customs and Central Excise, Peshawar that heroin powder in a shipment of leather bags was arranged to be smuggled abroad through unaccompanied baggage on 18-12-1995 Syed Iftikhar Ahmad, Deputy Superintendent Customs, deputed at the Peshawar Air Port was cautioned at 15-00 hours on the said date appellant Muhammad Shafique of Messrs Taj Customs Agency presented a Shipping Bill No,Exp1599, dated 18-12-1995 duly entered in the Register of Export for the inspection of the goods comprising of leather bags, shoes and waistcoats. As a procedure, Syed Iftikhar Ahmad, D.S. Marked the documents to Mir Bashar Khattak, Inspector for physical verification and thorough inspection of the shipment, which was contained in a steel box to be delivered to Clasumbo Azeez, Kuye X Co. Ltd. Gendar Merie Awroborp Lome, P.O. Box BP 10. 112, Loms Togo. The Exporter's name on the shipping bill was clearly identified to be Messrs Haroon Brothers, Asamai Gate Hospital Road, Peshawar.
3. Mir Bashar Khattak, Inspector opened the steel box for inspection in the presence of appellant Muhammad Shafique, owner of Messrs.' Taj Customs Agency and detected heroin packed in small plastic bags. He immediately informed Syed Iftikhar Ahmad, Deputy Superintendent of his discovery. The tin box was immediately taken to the office of the D.S. At the Airport Peshawar for complete search. Some fifty plastic envelopes full of heroin, weighing 8 Kgs. And 100 grams were recovered, hidden in fifty leather bags in the presence of the appellant. Three samples each weighing two grams were drawn and sealed in separate parcels. On query the appellant informed customs personnel that the owner of the goods was Sher Ali (acquitted) present with him,. Who further disclosed that the goods belonged to Daud (acquitted accused) a carpet dealer. He was summoned to airport. Appellant Muhammad Shafique, along with his co-accused Sher Ali (acquitted) and Daud were arrested. On the potation of Daud (since acquitted) two foreign Nationals, namely Maxwell and Michael, who were proceeding to Rawalpindi in a Flying Coach were also arrested. A case under section 156(1)(8)178/2(s) read with sections 6, 7, 8 and 9 of the C.N.S.O.
1995 was registered against them vide F.I.R. No,116, dated 18-12-1995, Police Station I&P Branch, Peshawar.
4. After necessary investigation two separate challahs against the appellant and his co-accused were simultaneously submitted in the Court of Special Judge Customs, Taxation and Anti- Smuggling, N.-W.F.P., Peshawar, under the Customs Law and before the Judge, Special Court, Peshawar under C.N.S.O.
5. Three appellant and co-accused were tried by the Special Judge Customs, Peshawar, who vide his judgment, dated 15-3-1997 convicted and sentenced all the accused to imprisonment for two years' R.I. And a fine of Rs,10,000 each. They were also tried by the Special Court, Peshawar under sections 6, 7,' 8 and 9, C.N.S.O., 1995 and convicted and sentenced the appellant to life imprisonment and a fine of Rupees one million in default thereof to undergo further two years' S.I.
The remaining accused were acquitted of charges levelled against them. Aggrieved of his conviction and sentence the appellant preferred the present appeal.
6. The prosecution examined as many as four witnesses in support of its case. Ahmad Mustafa (P.W.1) Chemical Examiner, F.S.L., Peshawar verified and confirmed the contents of the parcel (P.W.1/1) as heroin Syed Iftikhar Ahmad, Deputy Superintendent Customs (P.W.2) who was the first informant in the case and on his dictation Murasala (Exh.P.A./1) was drafted Muhammad Naeem (P.W.3) Inspector, Customs was the margin witness to the recovery memos. Exhs.P.C., P.C./1, P.C./2 and P.C./3 while Mehtab Khan (P.W.4) Inspector Customs arrested two foreigners, namely Maxwell and Michael, (acquitted).
7. The appellant was examined under section 342, Cr.P.C. Who denied all the charges against him and pleaded innocence.
8. The learned trial Court after assessing and evaluating the evidence convicted and sentenced Muhammad Shafique, appellant on the ground that he was holding possession of narcotics in question and acquitted others for not being connected with the crime.
9. Barrister M. Zahur-ul-Haq appeared as counsel for the appellant and Mr. Munir Khan, Advocate for the State respondent, who rendered valuable assistance to the Court in the case.
10. The learned counsel for the appellant assailed the impugned judgment and order mainly on two-fold grounds. He, firstly contended that the prosecution failed to establish the nexus of the appellant with the commission of the offence, in that, only presenting a shipping bill to the customs authorities would not be enough to prove his connivance in the crime. Secondly, the non- production of star-witness Mir Bashar, Inspector Customs and the Investigating Officer also left the case unproved and had adversely reflected on the prosecution case. The learned State Counsel has vehemently resisted the first plea raised by Barrister Sahib, counsel for the applicant. However, he conceded that the absencL. Of Mir Bashar, Investigating Officer before the trial Court has definitely weakened the case of the prosecution.
11. The appellant however, in his Statement under section 342, Cr.P.C. Admitted that he did present the shipping bill but submitted that the transportation and the production of the steel box containing contraband heroin was arranged by the owner. It is also in the statement of Syed Iftikhar Ahmad complainant (P.W.2) that Muhammad Shafique, appellant, only presented the shipping bill, which he marked to Mir Bashar Khattak, Inspector, Customs on duty at the airport for inspection, since the goods were not produced before him. He further deposed that after checking the steel box Mir Bashar informed him about the availability of heroin powder hidden in the leather bags. Upon checking the entire shipment, heroin powder was found in 50 small polythene bags, weighing 8 Kgs. And 100 grams. On query from Muhammad Shafique, appellant he disclosed that the consignment was given to him by Sher Ali (since acquitted) who was also present with him at the airport at the time of the booking of the shipment for abroad Sher Ali shifted the blame on Muhammad Daud by claiming that the shipment belonged to Muhammad Daud, a carpet dealer who happened to be the real owner of the goods in question. He was also called at the airport and subsequently arrested. The explanation given by Muhammad Daud was that the goods were given to him by two foreigners, Nigerian Nationals, namely Maxwell and Michael, who were eventually arrested from a flying coach, proceeding to Rawalpindi on his potation.
12. From the above resume of the circumstances, it can be conveniently observed that the appellant who is customs clearing and forwarding agent did, in fact, present a shipping bill and admittedly did not produce case property to the Customs Authorities. Therefore, it would be very improper to consider that he had the domain over the steel box containing the narcotics in question. The job of an agent is to facilitate and provide assistance in providing services in the technical manner to its clients. He prepares the way/shipping bill on the advice of its client.
Shipping/way bill must contain the list of items, quantity and price to be shipped responsibilities lies with the shipment owner, not the shipping agent of shipper. In this case the shipment owner as mentioned in the shipping bill happen to be Messrs Haroon & Brothers (Muhammad Daud).
Shipping bill was prepared by Customs/Forwarding Agent, in this case the appellant and was submitted with his signature invoice and declaration had the signature of Muhammad Daud, (Messrs Haroon Brothers). As the consignment was to be shipped to Africa under his instructions.
Foreigners Maxwell and Michael are not shown, on record, anywhere in this transaction. Linking a shipping agent with the offence and acquitting the exporter is beyond our comprehension. The circumstances that compelled the learned trial Judge to associate the crime with the shipping agent is speculative and based on misrepresentation of evidence. Furthermore, without discussing the available evidence qua the remain in accused the learned trial Court has acquitted them in haphazard and capricious manner. Reverting to the second contention of the learned counsel, though Mir Bashar was not produced before the trial Court, being out of the, country, yet his signatures were verified by his colleague, Syed Iftikhar Ahmad, Deputy Superintendent Customs (P.W.2).
13. The learned counsel for the appellant also 'assailed the non-association, of public witness to the recovery proceedings. No doubt the provisions of section 103, Cr.P.C. Are mandatory, but when the appellant has not grudged the recovery of the contraband heroin, non-compliance of the said provisions could not be considered fatal.
14. As for the samples of two grams drawn from one of the envelopes out of 50, it may be observed that the prosecution drew three samples of two grams each, nowhere in the evidence, it could be found that these three samples were drawn only from one packet.
15. For the aforesaid reasons, we allow this appeal, set aside the conviction and d sentence of the appellant and acquit him of the charges leveled against him.
' He shall be set at liberty if not required in any other case.