1. ' These three appeals are being disposed of by this common judgment as same are the outcome of the same crime and judgment announced by the learned Special Judge (Customs and Taxation), Karachi while deciding Special Case No,131 of 1996 (State v. Mst. Hamidan Bibi, Mst.
2. Constance Hadija Phakathi and Shahid Iqbal) vide judgment dated 21-11-1997.
3. ' The prosecution story is that a credible information was received by the Assistant Collector of Customs to the effect that two lady passengers, one African origin and other Pakistani would smuggle heroin powder in huge quantity to Entebe by Gulf Airlines Flight No,GF-733, on 13-8-1996.
4. The modus operandi will be that African lady will come first and go through the Customs Checking at Customs Counter and thereafter, Pakistani lady will follow her. Strict watch and surveillance was accordingly arranged outside and inside the International Departure Hall of Quaid-e-Azam International Airport, Karachi in connection with the above information. The lady passenger of African origin as Zambabian national namely Constance Hadija reached the Customs Counter where Irfan Ahmed was also there at the counter. She got her baggage thoroughly examined at the customs counter. Since no incriminating article was secured from her baggage, therefore, she was allowed to go ahead. Thereafter, the Pakistani origin lady passenger namely Mst. Hamidan Bibi being escorted in the company of two officials of F.I.A. Immigration in uniform with a child in her lap appeared before the Customs Counter with her baggage where the Customs Officer on duty, Irfan Ahmed was there. He asked the lady passenger Mst. Hamidan Bibi to declare if her baggage was containing any contraband. On inquiry she declared that she had only merchandise in her baggage. Custom Officer not being satisfied with her declaration on account of specific information for smuggling heroin through the lady passenger, Irfan Ahmed checked and examined her baggage viz. Suit case of eminent brand by associating two Mashirs Abrar Ahmed and Muhammad Asghar. In their presence on examination of her suit case Customs' Officer/Seizing Officer found and recovered in presence of above two Mashirs five kgs. Of white heroin and 2.50 kgs. Brown colour heroin from the top and bottom of the suit case and 110 ribbon spools lying in the suit case wrapped in polythene packets. He drew three samples from each colour heroin powder and sealed all the six samples under the signature of Mashirs. Mashirnama of recovery of heroin, drawing samples and seizure of travelling documents of passengers was prepared on the spot in presence of the Mashirs and their signatures were obtained on the spot. As a result of the spot preliminary inquiry with reference to the above information it was found that African origin lady Constance Hadija and Mst. Hamidan Bibi have been inducted in the drug trafficking under a plan.
5. The facts/circumstances were found clear from the entries of their travelling documents including passports which have furnished clear cut links connecting them together in this offence of attempt of smuggling the heroin. Thereafter, the African lady Constance Hadija was off loaded and was brought back to the International Departure Hall during the process of recovery of the said heroin from Hamidan Bibi, where both of the lady passengers Constance Hadija and Mst. Hamidan Bibi were arrested and were served with the notices under section 171 of the Customs Act. During preliminary enquiry it transpired that Hamidan Bibi was found with Fazil and that it was also found that Shahid Iqbal was found together with two F.I.A. Officials, contacting the lady appellants outside the International Departure Hall. Irfan Ahmed, Seizing Officer lodged the F.I.R. The Customs Officer Ghulam Abbas Soomro investigated the case. During investigation on interrogation of lady accused persons and through other evidence collected during the investigation it further transpired that husband of Hamidan Bibi namely Izhar Ali was apprehended in narcotic case at Nairobi and was put behind the bars and then he got his wife Mst. Hamidan Bibi inducted in the drug trafficking group of Shahji of Peshawar and with Fazil, she met Shahji at Peshi. It was also disclosed that Fazil Hussain and the lady passenger Mst. Hamidan Bibi reached Karachi in the morning of 13-8-1996. Mst. Hamidan Bibi was lodged in a hotel at Karachi where she was provided a suit case stuffed with heroin powder, cleverly concealed in the cavities of bottom and top of the suit case and ribbon spools. African lady Constance Hadija was separately inducted into drug trafficking operating apparently/separately. The investigation further disclosed that Shahid Iqbal, Inspector of Customs at Lahore also joined and met the passenger lady Mst. Hamidan Bibi and Fazil Hussain and that he also managed the services of F.I.A. Officials/personnel of Immigration to get cleared the lady passenger Hamidan Bibi from customs at the International Departure Hall.
6. Constance Hadija's appearance and clearance was only to divert the attention of Customs Officers to facilitate the clearance of lady passenger Mst. Hamidan Bibi. The documents of both the lady passengers like passport proved their joint mission of trafficking/smuggling the heroin from Pakistan to Entebe as joint venture. According to the prosecution, the Customs Officer, therefore, took steps to collect sufficient evidence, oral as well as documentary and also constant efforts were made to apprehend the other persons involved namely Fazil Hussain, Amir Ameen and Shahid Iqbal, Investigating Officer continued his efforts but could not arrest Fazil Hussain. However, he arrested Shahid Iqbal and Amir Ameen during investigation. Amir Ameen was not sent up for trial by the prosecution and he was let off and prosecution submitted final charge-sheet against two ladies and Shahid Iqbal whereas Fazil Hussain was shown as absconder.
7. ' During trial proceedings under section 512, Cr.P.C., were initiated in respect of absconsion of Fazil Hussain and he was declared absconder and his case proceeded in his absence under section 512, Cr.P.C. Charge was framed against Mst. Hamidan Bibi, Constance Hadija and Shahid Iqbal who pleaded not guilty and claimed to be tried.
8. ' Prosecution adduced the evidence of Seizing Officer Irfan Ahmed, the complainant, the Mashirnama of recovery of heroin and all other goods including travelling documents were produced. Notices as required under section 171 of the Customs Act, was served by the Customs Officer and was produced in Court. Passports and tickets of Mst. Hamidan Bibi, one ticket for a child, Passport and ticket of Constance Hadija were produced in Court. F.I.R. Was also produced. P.W.2 Abrar Ahmed, A.S.I. Kaleem Moosa, Ghulam Abbas Soomro were examined. Test Report of Chemical Examiner was also produced before the Court. Thereafter prosecution closed its side and statements of Mst. Hamidan Bibi, Constance Hadija and Shahid Iqbal under section 342, Cr.P.C.
9. Were recorded separately. They denied the allegations of the prosecution case. Hameedan Bibi and Shahid Iqbal were examined on oath whereas Constance Hadija did not examine herself on oath. Shahid Iqbal appellant also produced documents as Exhs.12-A and 12-B.
10. ' The learned trial Court after considering the evidence adduced by the prosecution and the statements of the appellants convicted the appellants for an offence under section 156(1)(8) of the Customs Act and sentenced each of them to suffer R.I. For six years and to pay fine of Rs,2,00,000 each or in default of payment of fine each to suffer R.I. For one year more vide judgment dated 21- 11-1997.
11. ' Being aggrieved and dissatisfied with the judgment, the appellants preferred these appeals.
12. ' At the very outset of hearing of the appeals Mr. Shoukat Hayat, learned counsel for the appellant Mst. Hamida Bibi from whose baggage the heroin powder mentioned hereinabove was secured does not press the appeal on merits and submits that due to hard pressing economic circumstances she committed the crime and she has a baby with her and it would be practically impossible for her being a foreign national to pay a fine of Rs,2,00,000 and learned counsel further contends that so far fine is concerned lenient view may be considered.
13. ' Mr. Muhammad Ilyas Khan, Advocate for the appellants contended that prosecution has miserably failed to adduce evidence and states that Shahid Iqbal under any circumstances was not concerned with the act of Mst. Hamida Bibi from whom the heroin powder was secured. The only evidence against Shahid Iqbal so adduced by the prosecution is the solitary testimony of P.W.
14. Kaleem Moosa P.W.3 who has stated that he was asked by the appellant outside the Airport building to afford facilities to Mst. Hameeda Bibi as she was a relative of a senior officer of F.I.A. This testimony in any case does not create any nexus of the appellant with the act of Mst. Hameeda Bibi. That statement of P.W.3 under section 161, Cr.P.C. Was recorded on 1-9-1996, whereas the incident took place on 13-8-1996, this inordinate delay in recording his statement is not satisfactorily explained specially in view of the fact that the witness was a F.I.A. Officer posted at Karachi. Learned counsel has further pointed out that prosecution has collected sufficient evidence against Fazil Hussain and Amir Ameen but prosecution at their own sweet-will dropped Amir Ameen and he even was not sent up by the prosecution to face the trial. None from the F.I.A.
15. Officials were even prosecuted though allegation against Shahid Iqbal is that he managed the services of the F.I.A. Officials/personnel of immigration to accompany and get the lady passenger Mst. Hameeda Bibi cleared from the Customs Counter at the International Departure Hall. Mr. Muhammad Ilyas Khan, learned counsel for the appellant has drawn my attention to the evidence recorded by the trial Court of Kaleem Moosa which reads as under:-- ' "I was on duty on 13-8-1996 in Departure Hall of Q.I.A.P. As A.S.I. Of F.I.A. Inspector Incharge Mr. Ahmed Jan Khan called me from my duty counter directed me to go out of Departure Hall alongwith Sepoy Waseem and facilitate Mst. Hamidan Bibi from outside Departure Hall in the Departure Hall. She is now present in Court and is the same. Mr. Ahmed Jan, F.I.A. Inspector Incharge further told to me that Sepoy Waseem will identify and locate the said Mst. Hamidan Bibi there."
16. ' He has further stated:-- I at that time asked Sepoy Waseem that he should inform Inspector Ahmed Jan that the Customs Officer is checking the baggage of Mst. Hameedan Bibi. Then the Sepoy Waseem came back and told to me that we should go to our duties leaving Mst. Hameedan Bibi with Customs Officer for doing his duties."
17. ' In cross-examination this witness has stated as follows:-- ' "After one month of the incident my statement was recorded. I was summoned twice and thrice but once I was examined. I did not know accused Shahid Iqbal in any way prior to the incident. It is correct to suggest that I and Muhammad Waseem both of F.I.A. Escorted/facilitated Mst.
18. Hameedan Begum from Main Gate of Departure Hall to Customs Counter alongwith her baggage.
19. It is correct to suggest that Inspector Ahmed Jan of F.I.A. On duty that day directed me and F.C.
20. Waseem to provide facilitation to Mst. Hameedan from Departure Hall as per instructions of superior. It is correct to suggest that it is not mentioned in my 161, Cr.P.C. Statement that we saw accused Shahid Iqbal talking with accused Mst. Hameedan out of Departure Hall."
21. ' In re-examination he has stated as follows:-- ' "By facility, we the F.I.A. Officials mean to make the way of the passenger easy for movement in the rush."
22. ' Learned counsel has further pointed out that Shahid Iqbal has alleged enmity with the Custom Officers in his statement recorded by the trial Court and has also pfoduced certificate issued to him by the Government of Pakistan, Collectorate of Customs, Lahore which reads as follows: -- ' "I am pleased to convey to you the commendation and gratitude of British Customs expressed by the Assistant Chief Investigation Officer Investigation Division, Custom House, London for your assistance which resulted in two separate seizures of heroin (weighing 1.8 Kgs. And 42 Kgs.) in 1993 and arrest/conviction of two persons.
23. ' This Collectorate also appreciates your professional skill and devotion to duty resulting in successful completion of above operation."
24. ' Learned counsel further points out that Mst. Hameedan Bibi has not deposed or disclosed any connection with Shahid Iqbal or with Mst. Constance Hadija Phakathi. Ahmed Jan the person who has helped Mst. Hameeda Bibi in getting her cleared is not even shown as accused in the case by the prosecution, whereas Amir Amin has already been released by the prosecution. Mr. Muhammad Ilyas Khan, Advocate for the appellant Mst. Constance Hadija Phakathi states that the only evidence so far adduced by the prosecution is to the effect that she was arrested alongwith her documents by the Customs Official at the airport whereas under any circumstances prosecution has not proved any nexus of the appellant with Mst. Hameedan Bibi. Axording to learned counsel there is no iota of evidence against the appellant Mst. Constance Hadija Phakathi.
25. Learned counsel refers to 1988 PCr.LJ 1188 and 1997 PCr.LJ 51.
26. ' Mr. Syed Tariq Ali, Standing Counsel after going through and perusing the evidence recorded by the trial Court states at the bar that evidence so adduced by the prosecution is of such a nature that the same is not free from reasonable doubt.
27. ' It would be pertinent to refer to the observation of the learned trial Court in its judgment at page 3 which provides that:- ' "The investigation also disclosed that co-accused Shahid Iqbal, Inspector of Customs at Lahore also joined and met the passenger lady accused Mst. Hamidan Bibi and Fazil Hussain and that he, Shahid Iqbal also managed the services of F.I.A. Officeals/personnels of Immigration to accompany and to get cleared the lady passenger Hamidan Bibi from customs at the International Departure Hall."
28. This observation of the learned trial Court is belied by the evidence of Kaleem Moosa P. W.3, Exh.6 referred to and reproduced hereinabove. In any case, case of Shahid Iqbal is on the same footing to that of F.I.A. Officials specially Amir Ameen and Ahmed Jan who have not even been sent up by the prosecution. The certificates so obtained by Shahid Iqbal which he has produced in his statement and referred to hereinabove, has alleged enmity with Customs Officers, clearly shows that he has been made the scapegoat at the instance of the complainant and other Customs Officers.
29. Evidence against Mst. Constance Hadija Phakathi in any case is not forthcoming so as to maintain the conviction. Learned State Counsel is also of the opinion that evidence is of such a nature which is not free from reasonable doubt. Keeping in view the evidence so adduced and the case-law referred to hereinabove by the learned counsel for the appellant, I am of the firm opinion that appeals of Shahid Iqbal and Mst. Constance Hadija Phakathi must be accepted which are hereby accepted, the convictions and sentences so recorded by the learned trial Court are hereby set aside. So far the case of Mst. Hameeda Bibi is concerned the huge quantity of heroin weighing Five Kgs. Of white heroin and 2.50 Kgs. of brown colour heroin was secured from her baggage and prosecution has produced trustworthy evidence which has rightly been believed by the trial Court and trial Court has rightly sentenced her to suffer R.I. For six years. Learned counsel for the appellant also does not agitate the substantive sentence of six years but only submits that being lady and a foreigner her fine of Rs,2,00,000 may be reduced. The State Counsel also raises no objection if fine of Rs,2,00,000 is reduced to Rs,50,000 only. I have considered the contentions of the learned counsel for the appellant Mst. Hameedan Bibi for reduction of fine only and learned State Counsel has also rightly raised no objection if the fine of Rs,2,00,000 is reduced to Rs,50,000 only.
30. Admittedly, appellant is a foreign national lady and practically it would be impossible for her to pay fine of Rs,2,00,000. Purely on humanitarian grounds and considering the no objection, for reduction of the fine by the Standing Counsel, I reduce the fine of Rs,2,00,000 to Rs,50,000 only in case of default of payment of fine of Rs,50,000 the appellant shall further suffer R.I. For six months.
31. ' With this modification in fine only appeal of Mst. Hameeda Bibi stands disposed of. The trial Court has allowed the benefit of section 382-B, Cr.P.C. To the appellant Mst. Hameedan Bibi which order is hereby maintained.
32. ' After hearing the parties on 2-3-1998 these appeals were disposed of by short order and these are the reasons for the same.