1. ' This is an appeal under section 185(F) of Customs Act against the judgment of conviction, dated 22-12-1996, in Case No,151 of 1993 passed by learned Special Judge (Customs and Taxation), Karachi, whereby the appellant has been convicted under section 156(1)(8) of Customs Act and sentenced to R.I. For 14 years and to pay fine Rs,200,000 and in case of default in the payment of fine, the appellant to undergo further R.I. For 4 years who has also been awarded benefit of section 382-B, Cr.P.C. While co-accused Mushtaq Ahmed Khan was acquitted giving him benefit of doubt and so far the co-accused Gulla Jan alias Ali Jan and Khalil when arrested and produced before the trial Court, case would proceed against them.
2. ' Brief facts of the prosecution case are that customs authorities received a credible information that huge quantity of narcotics (heroin) would be smuggled out of Pakistan by African passengers by way of concealment in the accompanied baggage consequently Customs Officer Muzaffar Shah maintained discrete surveillance on all the outgoing passengers, specially negroes (Blacks) leaving Pakistan through International Departure Hall, Jinnah Terminal Complex, QIAP, Karachi, and on 30-7-1993 at about 0830 hours, Customs Officer S. Muzaffar Shah intercepted appellant/accused who was bound to leave for Kano via Cairo by Egypt Air Flight No,MS-871 and his baggage consisted of eleven green colour canvas bags when the Customs Officer enquired from the appellant/accused if he was carrying any contraband narcotics to which the latter replied in the negative. The Customs Officer, named above, being not satisfied with the reply of appellant, called two witnesses, namely, Muhammad Mustafa and Inamul Haq and under the supervision of IPS, Mr. Aftab A. Kazi and SPO, Mr. Rehmat Ali Meo examined the baggage of the appellant/accused.
3. The above named Customs Officer found two canvas bags containing assorted ladies sandals and shoes, two were containing card board cartons of CAC-1000 calcium + vitamin 'C' tablets whereas remaining seven canvas bags were found containing telex paper rolls and the said Customs Officer minutely examined the above goods which resulted in the recovery of heroin powder packed in polythene bags concealed in the specially designed cavities of some of the telex paper rolls. The telex paper rolls and other goods were in enormous quantity, therefore, Customs Officer removed the entire baggage alongwith appellant and the witnesses to Drug Enforcement Celli QIAP, where a detailed search was conducted which took considerably long time and eventually resulted in the recovery of 123 Kgs. Brown colour heroin powder packed in polythene bags and cleverly concealed in the specially crafted cavities of 74 telex paper rolls. The Customs Officer seized heroin powder, containers and travelling documents of the appellants/accused and drew the samples under a Mashirnama and after compliance of section 159 of Customs Act, the said Customs Officer conducted the personal search of the appellant/accused which resulted in the recovery of Rs,1,72,232, a green colour diary/index and some visiting cards, etc. The Customs Officer also seized the above currency and articles under a Mashirnama. The Customs Officer also served the appellant/accused a notice under section 171 of the Customs Act and lodged the F.I.R. No,DEC- 75/93-JTRC under section 2(S) read with section 156(1)(8) of Customs Act. The investigation of the case was conducted by Customs Officer Hafiz Muhammad Ali Khoso who after conducting investigation submitted interim charge-sheet in Court and thereafter, further investigation of the case was conducted, during which it was revealed that appellant during his stay at Karachi had made number of calls to accused Musthaq Ahmed Khan had absconding accused Ali Jan and Khalil at Islamabad, who provided heroin to the appellant/accused and the said Mushtaq Ahmed Khan had also provided private accommodation to the appellant/accused where heroin was brought and concealed in the ' Charge was framed against the appellant and co-accused Mushtaq Ahmed Khan on 20-12-1994 under section 156(1)(8) read with section 178 of Customs Act, 1969, to which the appellant/accused and co-accused pleaded not guilty, consequently, prosecution examined P.W.1 Syed Muzaffar Shah Exh.5, who produced Mashirnama Exh.5-A, another Mashirnama Exh.5-B, passport of the appellant/accused Exh.5-C/1, air ticket of the appellant/accused Exh.5-C/2, certificate of vaccination Exh.5-C/3, boarding pass Exh.5-C/4, six visiting cards from Exh.5-C/5 to Exh.5-C/9, two cash memos Exh.5-C/10 and Exh.5-C/11, one chit Exh.5-C/12, notice under section 171 of Customs Act Exh.5-D, first information report Exh.5-E and inventory of Pak Currency Notes Exh.5-F, P.W.2 Inamul Haque Exh.6, P.W.3 Saeed Ahmed Exh.7, P.W.4 Muhammad Ishaq Exh.8, P.W.5 Muhammad Ayub Khatri Exh.9, who produced three demand drafts Exh.9- A/1 to Exh.9-A/3, receipt of rent Exh.9-B, photo copy of the passport Exh.9-C, Mashirnama Exh.9-D, P.W.6 Hafiz Muhammad Ali Khoso produced photo copy of the telephone calls bill of Paradise Hotel, Karachi, Exh.10-A/1, notice under section 171 of Customs Act given to co-accused Mushtaq Ahmed Exh.10-B and letter of Allied Bank Exh.10-C, P.W.7 Muhammad lqbal Malik Exh.11, who has produced the chemical examiner's report Exh.11-A. The prosecution closed its side as per Exh.12. The appellant/accused was examined under section 342, Cr.P.C. As per Exh.13 who also examined himself on oath under section 340(2), Cr.P.C.
4. After recording the above evidence and hearing the counsel for the parties the impugned judgment of conviction was passed.
5. ' I have heard counsel for the appellant as none has appeared for the' State and have gone through the record and proceedings of the case.
6. ' Learned counsel for the appellant has argued that samples were neither drawn nor sealed in accordance with law especially in view of the General Order, No,XII of 1986 and further that there has been material contradictions with respect to the recovery and weight of contraband. He further submitted that case property was not produced in the Court and further that independent mashirs were not associated with the recovery of contraband and also with the sealing of the samples drawn considering also that Muhammad Mustafa Mashir was porter at the airport was hot examined but only customs employees were examined. He has also placed reliance upon (i) Taj Bahadur v. The State 1997 MLD 1078, (ii) Badhu v. The State 1973 PCr.LJ 395, (iii) Muhammad Sharif etc. v. The State 1982 PCr.LJ 1067 (iv) Abdul Sattar v. The State 1984 PCr.LJ 2185, (v) Iqbal and another v. The State 1985 PCr.LJ 286, (vi) Noorul Hassan v. The State 1989 PCr.LJ 631 in support of his contentions. Learned counsel for the appellant/accused finally contended that if his arguments submitted did not find favour with this Court, the appellant being a foreigner having been served more than five years in the jail a lenient view with regards to the sentence of imprisonment may be taken.
7. ' The only point for the consideration in this appeal is whether the contraband of 123 Kgs. Of heroin was recovered from the appellant.
8. ' P.W.1 Syed Muzaffar Shah P.O. Exh.5 has deposed that on 30-71993, he was on duty from 8.00 a.m.
9. To 4.00 p.m. And was checking passengers of flight No,MS-871 when the appellant entered in the lounge, when the latter was stopped by him at the counter who was carrying eleven bags on three trollies and was enquired if he was carrying any contraband in his baggage to which he replied in negative but the P.W.1 suspected hence two Mashirs namely Muhammad Mustafa and Inamul Haq were called and at the same time IPS Aftab Qazi and SPO Rehmat Ali Meo were also present. On examination, two bags were found containing medicines, two other bags were found containing sandles, in remaining seven bags there were rolls of telex paper and on opening the rolls P.W.1 recovered concealed polythene bags in the telex rolls containing heroin powder, consequently a seizure memo. Exh.5/A was prepared in presence of Mashirs. He further deposed that he recovered travelling documents of the appellant and then called a van from Headquarters to take heroin powder and then proceeded to Headquarters alongwith baggage and appellant, Mashirs also accompanied in the van. Heroin so secured was weighed at Headquarters which came to be 123 Kgs. The appellant was asked whether he wanted to be searched in presence of Magistrate or any gazetted officer but he declined for that and allowed his personal search and he recovered Rs,1,72,232 Pak currency, one diary in green colour and some visiting cards. From the personal search of appellant he prepared such seizure memo. Exh.5/B in presence of Mashirs. He drew three samples from the seized heroin powder and sealed the same in presence of Mashirs. He also secured passport, vaccination certificate, boarding cards, five visiting cards, two bills as Exh.5-C/1 to Exh.5-C/12 from the appellant. He also issued notice Exh.5/D under section 171 of the Customs Act to the appellant/accused. He lodged Exh.5/E and prepared inventory of currency notes recovered from the personal search of accused as per memo. Exh.5/F. The above evidence of P.W. Syed Muzaffar Shah is corroborated by Mashirnama Exh.5/A and Exh.5/B and other documents Exhs.5- C/1 to 5-C/12. The testimony of P.W.1 is consistent with the statement made in F.I.R. Exh.5-E. P.W.2 Inamul Haque Exh.6 has fully corroborated the testimony of P.W.1 Syed Muzaffar Shah so far the recovery of 123 Kgs. Of heroin powder in his presence. P.W.4 Muhammad Ishaq, Exh.8 Tea Stall owner, has fully corroborated P.Ws.1 and 2 in-respect of recovery of heroin and recovery of the currency notes and other documents. P.W.7 Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner deposed that he received samples on 5-8-1993 in duplicate for examination test and examined the same on 9-8-1993 through colour and TLC test and sample was found to be heroin powder of commercial grade and prepared such report Exh.11-A which was correct and bore his signature. The appellant was examined under section 342, Cr.P.C. Wherein he denied the recovery of contraband. The appellant also examined himself on oath under section 340(2), Cr.P.C. Wherein he stated that he was leaving Pakistan on 30-7-1993 and was at Karachi Airport but nothing was secured from his person and baggage.
10. ' The appellant has admitted to be present at the Quaid-e-Azam International Airport on 30-7-1993 and was to leave for Kano via Cairo by Egypt Air Flight No,MS-871. The complainant P.W.1 and Mashirs are consistent on the point that the appellant was carrying on baggage which was searched and from the telex rolls polythene bags were found which contained heroin powder which when weighed was found to contain 123 Kgs. Of heroin powder. The testimony of P.W.1 Syed Muzaffar Shah is corroborated by Mashirs S. Muhammad Mustafa, Inamul Haque and Muhammad Ishaque. The recovery memos. And other documents including the passport, boarding cards, tickets taken together would prove the presence, of the appellant and also recovery of heroin from his baggage. The testimony of the said P.Ws. Could not be shaken with regard to the recovery of heroin powder of 123 Kgs. From the baggage belonging to the appellant. Nothing has been shown that the P.Ws. Named above had any animus against the appellant. The appellant being a foreigner, therefore, it cannot be said that P.Ws. Named above had any enmity or against him. No material contradictions or inconsistencies have been pointed out by the learned counsel for the appellant in the prosecution evidence. The version of the appellant that no contraband was secured from his possession cannot be believed and there could not be possibility of foisting of such huge quantity of heroin powder upon the appellant. All prosecution witnesses have fully supported the recovery of heroin powder from the baggage of the appellant which fact was also proved by the chemical who deposed that on examination he found that the sample sent to him was heroin of commercial grade. The prosecution evidence is confidence inspiring, therefore, no exception could be taken to the finding of the learned trial Court on the point of recovery of heroin powder which appellant attempted to smuggle out of Pakistan.
11. ' In view of aforesaid evidence, reasoning's, contention of the learned counsel for the appellant has no merit, consequently, appeal is dismissed. However, so far the sentence of the appellant, learned counsel has submitted that he being foreigner has been in Jail for more than five years thereby has been away from his dear and near, therefore, learned view may be taken and the period of sentence of imprisonment may be reduced. Keeping in view the above submission, sentence of imprisonment from 14 years is reduced to 12 years maintaining the sentence of fine but in case of non-payment of fine, the appellant would suffer two years imprisonment instead of four years. The facts of cases cited by learned counsel for appellant are quite different and distinguishable to the facts of instant case, hence not applicable to the instant case.