' MUHAMMAD BASHIR JEHANGIRI, J.---On the conclusion of arguments in this appeal on 24-2-1999, we, by a short order announced our judgment accepting the appeal, setting aside the acquittal of Muhammad Amin respondent herein and restoring his conviction under section 156 (1)(8) of the Customs Act (IV of 1969) (hereinafter referred to as the Act) and his sentences of imprisonment for six years and fine of Rs,1,00,000 or in default to undergo further rigorous imprisonment for one year recorded by the Special Court (Customs and Taxation), Karachi. What follows, are the reasons for our judgment.
2. This appeal with the leave of this Court filed by the State is directed against the judgment, dated 5-1-1995 of a learned Single Judge of the High Court of Sindh, passed in Special Appeal No,11 of 1994 filed by the convict-respondent whereby his conviction under section 156(1)(8) of the Act, and sentence of rigorous imprisonment for six years and to pay a fine of Rs,1,00,000 or in default to undergo further rigorous imprisonment for one year for attempting to smuggle heroin powder weighing 3.325 K.Gs. And Pakistani Currency amounting to Rs,4,500 out of Pakistan, at the Quaid-e- Azam International Airport, Karachi, recorded by the learned Special Judge (Customs and Taxation), Karachi was accepted and the convict-respondent was acquitted.
3. In pursuance of a spy information that Muhammad Amin, respondent, an Afghan National, would attempt to smuggle out of Pakistan heroin powder, by Gulf Air and as a result of discrete surveillance on the movement of all outgoing passengers on 15-5-1993, the respondent who was holding U.S. Department Justice's Travel Permit was intercepted by Mushtaq Ahmad, Customs Officer (P.W.1). The search of his baggage comprising of three suitcases led to the recovery of white heroin powder concealed in the false top and bottom of one of them. The heroin powder recovered weighed 2 K.Gs. (gross). On tearing up two tooth paste tubes and a bottle of shampoo lying in the same suit case led to the recovery of off-white heroin powder respectively weighing 150 grams (gross) and 125 grams (gross). Two waist-coats taken out from aforesaid suit-case were torn open and another 550 grams of off-white heroin powder which had been sewn in front and collars thereof was recovered. A pair of brown shoes taken out from the same suit case and on ripping of their sole yielded recovery of another 550 grams of off-white powder concealed therein. After observing legal formalities under section 159 of the Act, the personal search of the respondent resulted in the recovery of Pakistani Currency amounting to Rs,4,500 and U.S. Dollars 21,100. All these incriminating articles were accordingly seized alongwith the containers and travelling documents of the respondent through Mushirnama Exh.P.A. Duly witnessed by Muhammad (P.W.2) and Shaukat (P.W.3). On completion of these proceedings, the respondent was arrested after serving upon him a notice under section 171 of the Act and a case was registered against him. The samples of the seized powder were also sent to the Assistant Chemical Analyser, Customs, Karachi, who vide his report Exh.6.A found it to be heroin. The investigation of the case was finalised and the respondent challaned in the Court of Special Judge (Central) Customs and Taxation, Karachi, to stand his trial under section 156(8)(89) of the Act.
4. At the trial, the prosecution placed reliance on the ocular account of keeping of discrete surveillance of the outgoing passengers, boarding foreign flights on the relevant day; spotting of the respondent by Mushtaq Ahmad (P.W.1) at the departure lounge of the Quaid-i-Azam International Airport; search of both his baggages and his person leading to the recovery of the heroin powder from the upper and lower layers of one of the suit-cases; as also from two tooth paste tubes; the bottle of shampoo; front and collars of the two waste coats and; the sole of his shoes, on the testimony of two recovery witnesses, namely, Muhammad Mustafa and Shaukat (P.Ws. 2 and 3).
5. By his judgment, dated 2-2-1994, the learned Special Judge found the respondent guilty, accordingly, convicted and sentenced him in the terms noted above. The benefit of section 382-B, Cr.P.C. Was, however, extended to him.
6. In the High Court, to which resort was made in its appellate jurisdiction, the respondent's appeal was allowed substantially on the ground that "Mushirnamas of recoveries were devoid of legal sanctity and could not be relied upon as material evidence and judgment of the learned Special Court was set aside and he was set a liberty".
7. Leave to appeal was granted to consider whether the reasons which found favour with the learned Judge in Chambers of the High Court in reversing the judgment of conviction passed by the learned Special Judge are sustainable in law.
8. It is depricating to note that in this case neither any Law Officer of the Federation nor of the Customs Authorities in the Board of Revenue have entered appearance to support the appeal.
Since we have granted leave to appeal in the said case, therefore, we have ourselves gone through the record of the case and we are inclined to decide it ourselves notwithstanding the fact that no assistance has been rendered by either any Law Officer of the Federation or anyone on behalf of the Customs Authorities in the Board of Revenue.
9. Syed Zaki Muhammad, learned Advocate Supreme Court, appearing on behalf of the respondent reiterated the following contentions before us which he had earlier urged before the learned Single Judge in the High Court:
(i) That the learned Special Judge had wrongly placed implicit reliance on the testimony of Muhammad Mustafa P.W.2 and Shaukat P.W.3 who had testified to the correctness of the memo.
Evidencing recovery of the heroin powder from one of the suit-cases belonging to the respondent at the time and place of occurrence, namely, Quaid-i-Azam International Airport, Karachi, inasmuch as independent witnesses of the recoveries were available at the International Airport but had not been associated therewith.
(ii) That the learned Special Judge's impugned judgment was passed on surmises and conjectures and the conclusions arrived at by it were not warranted by the evidence of the witnesses aforesaid which rendered the impugned judgment of the Special Judge unsustainable in law.
(iii) That the judgment of the learned Single Judge proceeded on well-settled principle of administration of criminal justice and, therefore, the State appeal against the acquittal was liable to dismissal.
10. As stated earlier, the crucial point agitated by the learned counsel for the respondent was that the two respectable witnesses of the locality ought to have been associated" as required under section 103 of the Code of Criminal Procedure (Act V of 1898). We are not impressed by the contention of the learned counsel for the appellant. In Niaz Muhammad v. State (PLD 1983 SC AJ&K 211) section 103 of the Cr.P.C. Was construed in the following paragraph:-- "Strict compliance of section 103, Cr.P.C. Could not always be insisted upon. Each case has to be examined in the light of its own facts and circumstances. The place of occurrence in the present case is a mountainous area, with scattered population. Few houses are built on different hill-tops.
The concept of compact population like villages in Punjab would not be relevant in this part of Azad Kashmir. It is in evidence of P. Ws. That people of area had gone to their residences on the mountain top. There is nothing in the evidence to the effect that some other people were present on the scene or that they were available. So, in these circumstances if the witnesses of recoveries were not from the neighbourhood it would not render the recoveries invalid."
11. We tend to approve the construction ante placed by the Supreme Court of Azad Jammu and Kashmir on section 103 of the Cr.P.C. To the extent of compliance thereof. Section 103 of the Cr.P.C.
Containing the words 'respectable' and 'locality' for the two witnesses as required thereunder are crucial. Notwithstanding the emphasis laid on the word 'respectable' or 'locality' or on both, this Court was of the view that 'respectability' of a witness certainly did not depend upon the richness or higher status of a person and that the old concept of responsibility in the dictatorial rules of Kings, and Nawabs must come to an end now with the increase of education in a civilized and democratic society. Be that as it may, the search of the baggage and person at the Airport or on the Highways in generally not amenable to the strict compliance of section 103 of the Cr.P.C. It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is' not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports. Assuming for the sake of argument but without conceding that provision of section 103 (ibid) apply to the search of the baggage or of person, still its application has been restricted on the principles of interpretation. It would, thus, be noticed that two independent witnesses are generally required to witness the recovery. This requirement of law is, however, subject to exceptions. It is common experience nowadays that due to apathy, the public at large are hesitant to come forward to witness the recovery in criminal case's for fear of reprisals in view of the present deteriorating law and order situation in the country. In the instant case, however, there is an additional circumstance that the recovery was made at the Quaid-i-Azam International Airport, Karachi where the officials of various departments/agencies might have been available.
Nonetheless no passenger would have been wilfully prepared to stand witness to the recoveries inasmuch as they could not stand the strain of being called upon from abroad to testify to the aforesaid recoveries:
12. Again there were two versions on the record to the recoveries. One forwarded by the three Customs officials and the other by the respondent. The trial Court had examined the evidence brought on the record and preferred the prosecution evidence over the version of the respondent.
To our mind no illegality or infirmity has been found in drawing such conclusions as was done by the learned Special Judge. It is not an absolute requirement that in every case witnesses of public must necessarily be produced. As stated earlier, it depends on the facts of each case. In the present case one cannot insist that the members of public must necessarily appear as to witness the recovery. The legal position that emerges, therefore, is that if their testimony is intrinsically sound, without there being anything in the circumstances to arouse doubt, then such testimony is sufficient for the purpose of establishing the facts. See Zardad v. The State (1991 SCM R 458).
13. We are, therefore, of the view that qua the recovery of contraband heroin and the Pakistani currency, the learned Single Judge has doubted its genuineness on the fact that the three Customs Officials were not competent to have witnessed the recovery and also commented upon the manner in which the recoveries had been made and further that the venue of the search at the Airport was shifted to the Office of the Customs Authorities also situated at the Airport and has expressed the view that in the circumstances the heroin could not be said to have had a genuine link with the respondent. We, however, find that the doubts entertained by the learned Judge in this behalf were not justified, therefore, the evidence of P.W.1 who had investigated the case and those of Muhammad Mustafa P.W.2. And Shaukat P.W.3 could not be brushed aside specially when there was no motive on the part of the Customs Authorities to falsely implicate the respondent. We are, therefore, of the considered view that there is no rule of evidence as to render the official witnesses disqualified to witness the recovery in the peculiar circumstances of this case. We consider, therefore, that this is not a case where the recovery of heroin powder could be doubted.
14. The riddle as to the circumstances leading to the report of Chemical Analyser, this was unjustifiably magnified by the learned counsel before the learned Single Judge who had been unnecessarily influenced by that. We have perused the evidence of the report of the Chemical Analyser and there does not appear any ambiguity therein as was taken notice of by the learned Single Judge. Accordingly, we have been left wandering as to what was the exact implication of the report of Exh.A-6 of the Chemical Analyser which impressed the mind of the learned Judge to come to the conclusion that there were some doubts as to the authenticity of his report aforesaid.
15. For the foregoing reasons, we are of the view that the findings recorded by the learned Single Judge as to the guilt of Muhammad Amin respondent was a proper finding based on detailed appreciation of the prosecution evidence and, therefore, there was no justification for the learned Judge in Chambers of the High Court who interfered with the same. It was a clear case of an attempt to smuggle heroin powder weighing 3.325 K.Gs. Out of Pakistan and the ocular account was furnished by the witnesses who were although the officer/officials of the Customs Department had no motive of their own to falsely implicate the respondent in this crime. The case against the respondent under section 156(1)(8) of the Act stands properly established on the record.
16. We would, accordingly accept this appeal, set aside the order of the learned Single Judge of the High Court and restore the conviction and sentences recorded against the respondent by the learned Special Judge. The respondent is not in attendance in Court today. Since the convict- respondent is an Afghan National and his arrest in compliance of this order will be difficult, therefore, perpetual non-bailable warrants of arrest shall issue against him. After his arrest he should be sent to jail for serving out his sentence of rigorous imprisonment for six years and payment of fine. He shall, however, be entitled to the benefit of section 382-B, Cr.P.C. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.