The appellant namely Khalid Mehmood has assailed the judgment, dated 24-10-1998 passed by the learned Special Judge (Custom and Taxation), Karachi, in Case No,184 of 1997 re: State v. Khalid Mehmood convicting the appellant under section 156(1)(8) of the Customs Act, 1969 and sentencing him to undergo R.I. For five years and fine of Rs,50,000 in default whereof to undergo further R.I. For three months.
2. The prosecution case according to F.I.R. No,DEC-121 of 1999, J.T.C. Under section 9(c) of the C.O.N.S. Act, 1997, lodged by M. Azam Khalid, Preventive Officer, Custom House, Karachi is as follows:-- "On the intervening night of 15th/16th December, 1997, while performing my duty at the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi, on suspicion I intercepted a Pakistani passenger namely Khalid Mehmood son of Muhammad Iqbal, holding Passport No,E-551234 who was leaving for Dhaka by P.I.A. Flight No,PK-266. The passenger, named above, was asked to declare whether he was carrying any contraband goods especially narcotics etc. In his baggage or on his person to which he denied. Being dissatisfied with the passenger's declaration, his baggage comprising a greyish black colour 'Sabina' brand suit-case was subject to examination in the presence of two witnesses Messrs Sarwar Shah and Zahoor Ahmed. The examination so conducted, led to the recovery of a solidified heroin paste which was concealed/pasted in the upper and lower side walls of the said suit-case. Solidified heroin paste, so recovered, was found to be 1800 grams (gross) upon weighment. Subsequent to this recovery, it was felt imperative to conduct personal search of the passenger so as to determine if any incriminating goods were concealed on his person. As such, prior to personal search, the passenger was afforded an opportunity to opt whether he wanted to be searched before a Magistrate-Gazetted Customs Officer, as provided under section 159 of the Customs Act, 1969, however, the passenger did not express so. Accordingly, the personal search of the passenger Khalid Mehmood was conducted by the undersigned in presence of above witnesses which led to the recovery of a Pakistani Passport No,B-607987 and National Identity Card No,109-86-071213, both issued in the name of Badshah Rehman son of Fateh Shah, with photograph of accused Khalid Mehmood pasted thereon. In addition to this, an air passenger print, as enumerated in column No,5(h) above, was also recovered from the pockets of the above passenger. The aforesaid 1800 grams (gross) solidified heroin paste alongwith container thereof and all the travelling documents of the passenger Khalid Mehmood (Badshah Rehman) were accordingly seized under the cover of Mashirnama. Three representative samples of the seized solidified, heroin paste were also drawn and were sealed under the signatures of above witnesses. Accused/passenger namely Khalid Mehmood (Badshah Rehman) was arrested and served with notice under section 171 of the Customs Act, 1969."
3. After the investigation, challan was submitted against the appellant before the. Special Court.
4. On 4-6-1998 the charge under section 156(1)(8) of the Customs Act, was framed against the appellant to which he pleaded not guilty and claimed to be tried.
5. At the trial' the prosecution examined M. Khalid Azam, Preventive Officer as P.W.1, Sarwar Shah, Senior Preventive Officer as P.W.2, and Ashraf Mehmood, Preventive Officer as P.W.3, and then closed its side. The appellant was examined under section 342, Cr.P.C. Wherein he pleaded his innocence and stated that heroin powder was foisted upon him. Customs people had beaten him and implicated him in the case. He stated that he was not produced before the Magistrate at the time of remand. He has further stated that heroin was not recovered from him, and that from his possession only one ticket in his name and other documents relating to him were secured. He has denied that Passport and Computer slip in the name of Badshah Rehman was secured from his possession. He, however, examined himself on oath.
6. I have heard Miss Masooda Siraj learned counsel for the appellant and Mr. Syed Mamnoon Hassan learned Dy. A.-G. For the State and have also perused the record of evidence and the impugned judgment.
7. It has been contended on behalf of the appellant that the prosecution story is highly improbable and unbelievable. The prosecution evidence is not truthful one and consists of improvement and suppression of material facts. It was urged that it would be impossible for a man to travel by air on an international route without any local currency or foreign exchange and it does not appeal to sense that the appellant was travelling without a single coin in his possession and other sundry items. It was further contended that Mashirs of recovery of the alleged contraband goods were not the independent trustworthy public men but were the officials of the Customs Department and colleagues of the complainant. It was further contended that the appellant should have been given a chance to cross-examine the prosecution witnesses through his Advocate or in the alternative, the learned trial Court ought to have put questions to the P.Ws.
As required under section 340, Cr.P.C. And Article 161 of the Qanun-e-Shahadat Order, 1984. It was also urged that the suit-case which it is said contained heroin powder should have been detected in X-Ray machine at Islamabad Airport. It was lastly argued that there are glaring and fatal contradictions in the prosecution evidence and that in the aforesaid circumstances the impugned judgment is liable to be set aside. Reliance has been placed upon 1987 PCr.LJ 30.
8. On the other hand, Mr. Syed Mamnoon Hassan, learned Dy. A.-G. Appearing for the State has stated that the appellant has rightly been convicted as he was found in possession of the contraband heroin at the Departure Hall of the Karachi, Airport..He has argued that the prosecution witnesses were in no way hostile to the appellant and that the recovery witnesses are as good witnesses as any other witness. Learned Dy. A.-G., was, however, not in a position to satisfactorily reply to the query if the appellant was travelling on an International Route out of Pakistan, without a single coin of local currency or foreign exchange.
9. It is important to note that like prosecution evidence the defence evidence consisting of the appellant has also gone unchallenged. Under such circumstances the prosecution would not be allowed to put up a better claim of truthfulness than the defence.
10. Besides, there are glaring contradictions in the evidence of prosecution witnesses in respect of sequence of the heroin powder. It is stated by P.W. Azam Khalid that he had also drawn three representative samples and sealed them in presence of Mashirs. Almost same statement is given by P.W. Sarwar 'Shah which is also to the effect that he drew three samples of heroin and sealed in packing under his signature and signature of co-Mashir. But the Investigating Officer does mot speak of any three samples separately taken of the heroin paste. The samples have again not been produced in Court nor exhibited as an article of property. The Investigating Officer instead speaks of a sample and not of three samples. On perusal of the report of the Federal Government Analyst it reveals that only one sample in polythene bag containing heroin was sent to the analyst which was received there on 1-7-1998 i,e, after more than seven months. The report does not disclose more than one samples containing heroin paste.
11. It is again not shown anywhere in the prosecution evidence as to how much quantity of heroin paste was sent for examination and report. The report, however, shows that the gross weight of the envelope was 5.4 grams whereas the net weight with polythene was only 2.3 grams. The conclusion at the end of the report again confirms that there was only one sample received at the office of the Scientific Officer/Federal Government Analyst. The most important item, the appellant's suit-case of Sabina brand, also was not produced or exhibited as an article of property at the trial.
12. It does not appeal to reason that a person undertaking a journey on International Route would be travelling without any currency or other items of daily use. The defence evidence consisting of the appellant himself has gone unchallenged. The question arises why defence version which is on oath should not be believed. The statement on oath of the appellant himself which is to the effect that he had money with him and that was taken by the seizing Officer has not been challenged.
The evidence which is not challenged can be legally construed to have been accepted by the other side. All the above lapses and circumstances only lead to an irresistible conclusion that the prosecution witnesses have suppressed the truth which in my view would alone be sufficient for holding the case of prosecution as doubtful.
13. In the case of Rab Nawaz and others v. The State PLD 1994 SC 858 the Honourable Supreme Court at p.863 of the judgment observed as follows:-- "Needless to emphasise, that in a situation like the one in hand if the accused are able to convince the Court about the probability of their assertion being true and standing to reason, the benefit of doubt is to be extended to them. This principle was firstly recognised in the case of Safdar Ali v.
Crown PLD 1953 FC 93 and followed subsequently, by this Court from time to time and also in the case of Nadeem-ul-Haq Khan v. The State 1985 SCMR 510. The relevant dictum is being reproduced for convenience sake-- ' In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the evidence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt' ."
14. In view of the above discussion the appeal of the appellant is allowed, the conviction and sentence is set aside and he is acquitted in the case. The appellant shall be released forthwith if not required to be detained in any other case.
15. Above appeal was allowed by a short order dated 24-8-1999 and these are the reasons for the same.