KHAN RIAZ-UD-DIN AHMED, J.---Antheneo David a foreign national belonging to Mouzmubeeq, the appellant, was convicted by the learned Sessions Judge, Nushki under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Prohibition Order) and was sentenced to imprisonment for life and fine of Rs,50,000 in default of the payment of fine to undergo S.I. for six months. He was, however, awarded the benefit of section 382-B, Cr.P.C. vide judgment dated 30-3- 2000.
2. Aggrieved by the said judgment the appellant has filed this appeal through Superintendent Central Jail, Mach Baluchistan which is being disposed of by this judgment.
3. Briefly the facts of the case, as disclosed from the F.I.R. Exh.P. /1-A lodged by Muhammad Alam, Dafedar Levies Tuftan P.W.1 at Levies Police Station Tuftan, are, that on 19-10-1999, on receipt of a secret information that some foreigners, in a bid to smuggle heroin concealed in their abdomen were present at the Immigration Check Post Tuftan, the complainant approached Syed Murid Shah Naib-Tehsildar/Investigating Officer Tuftan, and apprised him of the situation. He recorded the F.I.R. at his instance and rushed to F.I.A. gate alongwith otherievies officials. He found Autheneo David the appellant alongwith three other foreign nationals present at the Check Post. He arrested all of them as suspects and proceeded against them separately. The appellant was subjected to personal search, but no drug was recovered therefrom. He was then taken to Saindak Hospital where on medical examination, his abdomen was found distended. The Medical Officer X-Rayed the same and located multiple shadows in it (the capsules of heroin) which were excreted therefrom by administering dulcolax tablets. In all about 131 capsules of heroin weighing one kilo 80 grams were excreted from the stomach of the appellant from 19-10-1999 to 23-10-1999. 10 grams of heroin was separated as sample, and after making into a sealed parcel, was sent to Chemical Examiner tor analysis where from positive report Exh.P./4-A was received.
4. After completion of the formalities of investigation the accused-appellant was challaned to Court to face his trial.
5. The prosecution produced as many as four P.Ws. at the trial to prove the guilt of the accused.
Muhammad Alam, Dafedar Levies Tuftan appeared as P.W.1 and reiterated the contents of the F.I.R.
Exh.P./1-A and deposed, that the same bear his signatures. He while under cross-examination admitted it correct that he was not present, when capsules filled with heroin were excreted from his abdomen. He, however, denied the suggestion put by the defence that he had made a false statement at the instance of higher officers.
Yahya Khan P.W.2 a sepoy of Levies Tuftan deposed, that on 19-10-1999 he had accompanied Naib- Tehsildar P.W.4 and one Balach Khan (not produced) went to the gate of Iran Border; wherefrom four foreigners, suspected of keeping heroin in their belly were brought to police station and were subjected to personal search, one passport, 850 American Doller, Five blades and one Razer Machine were taken in possession from the appellant vide recovery memo.. Exh.P./2-A signed by him. The appellant and others were taken to Saindak Hospital. where 131 capsules of heroin weighing one kilo 80 grams, were excreted from the belly of the appellant from 19-10-1999 to 23-10- 1999 in his presence which were taken in possession vide memo. Exh.P./2-B, after separating 10 grams of heroin as sample to be sent for chemical analysis. He also correctly identified his signatures on the said memo.. He denied the suggestion put by the defence that the heroin was recovered from one Umar a foreign national and that the accused has been falsely implicated in this case: He also denied that he has made a false statement at the instance of higher officers.
Dr. Abdul Majeed Medical Officer Saindak Project Hospital appeared .as P.W.3 and stated to have examined the appellant on 19-10-1999. His abdomen was distended, which was X-Rayed. Multiple shadows of capsules were seen therein and 1" in diameter. He was then administered Dulcolax tablets which excreted about 131 capsules 2" in length from the stomach of the appellant. He testified the certificate Exh.P./3-A duly signed by him on 21-10-1999. He denied the suggestion put by the defence that he had issued a false certificate at the instance of Naib-Tehsildar.
Syed Murid Shah, Naib-Tehsildar and the Investigating Officer appeared as P.W.4 and gave the details of the investigation conducted by him including the registration of the case arrest of the accused-appellant, and recovery of 131 capsules of heroin excreted from the abdomen of the accused. He further deposed that the capsules were emptied and the heroin recovered therefrom was weighed, which came to one kilo and 80 grams, which was sealed into a parcel after separating 10 grams of heroin as sample, duly sent to Chemical Examiner for analysis, wherefrom positive report Exh.P./4-A was received and placed on the file. He testified his signatures on the Memos. Exh.P./2-A and Exh.P./2-B. He also submitted that challan Exh.P./4-B against the appellant/accused after completion of the investigations. While under cross-examination he admitted that he had taken three other accused to Saindar. He was, however, not able to tell, as to how many capsules of heroin were daily excreted from the abdomen of the accused on 19-10-1999, 20-10-1999, 21-10-1999 and 22-10-1999, but in all those were 131 capsules. He admitted that capsules excreted through anus of the appellant were cleaned by the sweeper who had declined to appear as a witness. He refuted the suggestion that as the accused was a foreigner, so he was falsely involved in this case.
6. At the close of the prosecution evidence the accused was examined under section 342, Cr.P.C. He denied all the allegations and professed innocence. He, however, refused to appear as witness of his own under section 340(2), Cr.P.C. and also declined to produce any evidence in defence.
7. After the completion of the trial the accused-appellant, was convicted and sentenced as stated above, hence 'his appeal.
8. We have heard the learned counsel for the appellant as well as State and have perused the record carefully with their assistance.
9. Learned counsel for the appellant, after having gone through the two judgments passed by this Court in Jail Criminal Appeal No,37/Q of 2000 (Datto Shubani Bashar v. The State) and Jail Criminal Appeal No,38/Q of 2000 (Jambay Amenual Beeto v. The State) opted to stress only on the point, which was not urged earlier by the learned counsel for the appellant and was still unresolved. He vehemently submitted that by non-producing the sweeper, who had cleaned the capsules of the heroin excreted through anus of the accused, the prosecution has failed to connect the appellant with the crime.
10.Learned counsel for the State on the other hand has vigorously contended that the excretion of the capsules stands duly proved through the testimony furnished by Dr. Abdul Majeed P.W.3 and Yahya Khan P.W.2 who are more responsible and respectable witnesses, as such the non- production of sweeper would not materially effect the case of the prosecution adversely. He also submitted that the two appeals of the co-accused of the appellant referred to above carrying similar facts have already been dismissed by this Court, and there are no distinguishing features in the instant appeal.
11.We have considered the above submission of the learned counsel with anxiety and have also gone through the impugned judgment as well as the judgments passed by the Division Bench of this Court in earlier appeals filed by the co-accused of the appellant. We find that the instant case is also the off shoot of the same occurrence and is based on the same set of evidence, which has already been relied on by us in deciding the above said appeals.
12.We have, however, carefully scrutinized and examined the evidence led by the prosecution, so as to evaluate and assess its worth in the light of arguments extended by the learned counsel for the appellant regarding the non-production of the sweeper as a prosecution witness. The factum of excretion of the capsules of heroin through the anus of the appellant stands amply proved by the statement of Yahya Khan P.W.2, who has, categorically stated, that it was in his presence that the capsules of heroin were excreted from the abdomen of the accused through his anus, by administering drug to him by the Doctor. He also deposed that in all 131 capsules of heroin were recovered through this process which were taken in possession vide memo. Exh.P./2-B by Syed Murid Shah Naib Tehsildar P.W.4. The said statement has been materially substantiated by Dr. Abdul Majeed P.W.3, who being an expert witness, has furnished testimony to the effect, that the appellant was produced before him with distended abdomen, who was subjected to X-Ray examination, which revealed multiple shadows of capsules therein. He further disclosed that the accused was then administered purgatives (Tab Dulcolux) which facilitated the excretion of 131 capsules of heroin from the abdomen of the accused through his anus each measuring 2" in length and 1" in diameter. A certificate Exh.P./3-A was duly prepared in this respect which bear his signatures.
13. The statement of these two witnesses stand further strengthened by the evidence of Syed Murid Shah P.W.4, who has also unequivocally stated that the appellant alongwith others were taken to Saindak Hospital for medical examination, as they all were suspected of concealing capsules of heroin in their abdomen. The appellant was X-Rayed by the Doctor who located capsules in his abdomen, which were excreted through his anus by administering drug. In all 131 capsules were recovered from the accused in this process which carried one kilo an 80 grams of heroin filled therein. He had further disclosed that 10 grams of heroin was separated therefrom and was sent to Chemical Examiner, whose positive report Exh.P.1/4-A was received and placed on record.
14. All these three witnesses although were the employees of the State, but were quite independent and uninterested as they had no ill-will or previous enmity with the appellant who was not even earlier known to them. They have been subjected to cross-examination by the defence at some length, but not a single question or suggestion of any such enmity, was put to the witnesses which would have formed the basis for the false implication of the appellant and his substitution for the real culprit, which is a rare phenomenon.
15. We therefore, of the considered view that the testimony furnished by the aforesaid witnesses being consistent and truthful inspire confidence and was sufficient to warrant the conviction of the appellant despite the non-production of the sweeper as a prosecution witness. As such the contention of the defence to this effect stands discarded as baseless.
16.The upshot of the above discussion is that the prosecution has proved its case beyond any reasonable doubt against the appellant who has been rightly convicted and sentenced by the learned trial Court.
17. We have, however, taken notice of the fact in earlier appeals of the co-accused of the appellant cited above, that the learned trial Court has erred in convicting the appellant jointly under Articles 3/4 of the Prohibition Order 1979 which is against the spirit of law, because the two Articles 3/4 were distinct and independent of each other carrying separate sentences, we, therefore, in the larger interest of justice proceed to correct this error by upholding the conviction of the appellant only under Article 3 of the Prohibition Order, 1979 as the heroin powder was attempted to be transported out of Pakistan by the appellant, by hiding the same inside his body.
Article 4 of the Prohibition Order, therefore, being redundant in the circumstances of this case stands, eliminated.
18. So far the sentence of the appellant is concerned, we find no extenuating circumstances to interfere in the sentence awarded by the learned trial Court, which commensurate with the gravity of the offence committed by the appellant, in such a dangerous and novel manner. We, therefore, maintain the sentence awarded by the learned trial Court. The benefit of section 382-B, Cr.P.C. shall, however, remain intact.
Resultantly this appeal being without merits hereby dismissed.