' This appeal is directed against the order and judgment of the Special Judge Customs, Taxation and Anti-Smuggling (Central), N.-W.F.P., Peshawar whereby Qadar Gul and Ali Gohar, respondents, have been acquitted of the charges under section 156(1)(89) read with section 2(s) of the Customs Act, 1969, on the ground that the seized goods i,e, heroin and cloth were not proved to be of foreign origin.
2. The facts of the case, briefly stated, are that on 19-7-1992 at 2245 hours, the staff of the Special Checking Squad, Peshawar, during routine checking at G.T. Road near Kund, intercepted a Government Transport, Bus No,PRT-1832 driven by Qadar Gul (respondent No,1) and Gohar Ali (respondent No,2) as conductor. The cursory search of the bus detected the presence of narcotics and cloth of foreign origin concealed in secret compartments made therein. The detailed checking, of the bus in the Customs Office of Special Checking Squad led to the recovery of heroin powder of foreign origin weighing 5,700 Kilograms hidden in switch-board and 190 yards cloth of foreign origin concealed inside the seats of the bus. The occupants/respondents of the Bus were accordingly arrested and booked vide F.I.R. No,30 dated 19-7-1992 under sections 156(1)(89), 157, 178 read with section 2(s) of the Customs Act, 1969 and under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. After drawing three samples, the remaining heroin was sealed in a parcel.
3. After necessary investigation, challan was put in Court of Special Judge Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar under the provisions of Customs Act. The respondents (acquitted accused) when charged pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 5 witnesses to prove the guilt of the respondents.
4. Attaur Rehman (P.W.1) assessed C.I.F. Value of both the seized-items as Rs,88,975 vide Assessm ent Certificate (Exh.P.W.1/1). The independent value of seized cloth was assessed at Rs,3,040. Javed Ahmad (P.W.2) Inspector/Appraiser Customs House, Peshawar (Incharge State Warehouse) produced the seized cloth and heroin allegedly of foreign origin before the Court.
Akhtar Gul (P.W.3) Chemical Expert F.S.L. Peshawar conducted analysis on the sealed samples of heroin weighing 2 grams. He confirmed the seized narcotics to be heroin vide report Exh.P.W.3/1 bearing his signature correctly. Riaz Orakzai (P.W.4) Inspector Customs, is the complainant. He reiterated the same facts as narrated in the Murasila Exh.P.W.4/9 incorporated in F.I.R. No,30. He took into possession the cloth and heroin vide recovery memo. Exh.P.W.4/1 and bus vide recovery memo. Exh.P.W.4/2. Muhammad Riaz (P.W.5), Sepoy Special Checking Squad was a member of the raiding party who supported the statement of complainant. He is also the marginal witness to recovery memos. Exh.P.W.4/1, and Exh.P.W.4/2. The respondent (acquitted accused) when examined under section 342, Cr.P.C. Denied their involvement in the offence and pleaded innocence.
5. The learned Special Judge after hearing the learned counsel for the parties- and appreciating the evidence, arrived at a conclusion that both the seized items i,e, cloth and heroin could not be proved to be of foreign origin, therefore, did not fall under the provisions of Customs Act. Hence both the accused were directed to be released.
6. Mr. Salahuddin, the learned Deputy Attorney-General pleaded for the appellant/State, Mian Mohibullah Kakakhel and Mr. Muhammad Tehmash Khan, Advocates appeared for the respondents.
7. The learned Deputy Attorney-General contended that the heroin being notified under section 2(s) of the Customs Act falls within the purview of smuggling and, therefore, no formal proof of its origin was required under the law. It was next argued that cultivation or preparation of heroin is prohibited in Pakistan under the law of the land which would give rise to the legitimate presumption that heroin found in possession of the respondents/accused would be of foreign origin. Conversely, the learned counsel for the respondents submitted that since the name of the origin of the country was not mentioned on the seized substance, therefore, it was rightly taken as country made and, therefore, would fall beyond the ambit of provisions of smuggling under the Customs Act.
8. As observed above that the learned trial Court did not convict the respondents under the provisions of this Act, for the reason that prosecution witnesses failed to prove the goods in question to be of foreign origin and that as none of the two items bore the name of the origin of any country. It was further observed by the learned trial Court that. Not only the heroin in question did not have any mark or sign or name of any foreign country but Riaz Orakzai (P.W.4) admitted that Pakistan on international level is considered to be a large heroin producing country and that the likelihood of heroin being of Pakistani origin cannot be excluded.
9. Before we embark into discussion, as, to whether Pakistan is a drug producing country and whether seized heroin was country made. First we may determine as to who is to shoulder responsibility to prove that the heroin was or was not,a smuggled item. Narcotics and narcotic psychotropic substance have not been specified in the clause (s) of section 2 of the Customs Act, 1969 only but also notified by the Federal Government vide Notification No, SRO 491(I)/85, dated 23rd May, 1985. There are three provisions in the Customs Act which place burden of proof on the person holding the possession of goods falling under prohibitory clause or notified under section 2(s) of the Act. These sections are 156(1)(89), 156(2) and section 187 of the Customs Act. Under section 156(1)(89) "if any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods: ' Provided that if the smuggled goods be gold bullion or silver bullion the onus of proving the plea that such bullion was obtained by processing or other means employed in Pakistan and not by smuggling shall be upon the person taking that plea".
' This provision suggests that it is the possessor of the seized goods who is to prove that he had the possession of the goods in lawful manner. Section 156(2) reads:- "Where any goods specified in clause (s) of section 2 or in a notification issued thereunder are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized."
' This provision reflects that the person in whose possession the goods, specified in section 2(s) and notified in the notification issued under section 2(s) of the Customs Act, 1969 were found he is to prove that they had been imported lawfully. Section 187 reads as under:-- "187. Burden of proof as to lawful authority, etc.--- When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law or the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him."
' This provision encompasses not only the person in whose possession the goods were found but also the co-accused through whom the possession of the goods were acquired. The above two provisions 156(1)(89) and 156(2) reflect that there be reasonable suspicion and reasonable belief for the prosecution that goods are smuggled. Under the general principle of law contained in section 117 of the Qanun-eShahadat, it is for the prosecution to prove the allegation against the accused person but the departure from the general rule has been made in the above quoted provisions.
10. The respondents/accused who were Government employees were carrying the goods in question in clandestine manner. The heroin powder was hidden in the switch-board. The prosecution has reasonable suspicion and belief that the respondents were carrying heroin (narcotics and psychotropic substance) specified in section 2(s) and notified thereunder, declaring it smuggled, therefore, it was not necessary for the prosecution to prove that the heroin powder was of foreign origin. The respondents have failed to discharge their burden. It was for the defence to have produced evidence to rebut the prosecution version. Though the respondents have categorically denied the recovery from them but their statements are not worth credence as they were arrested at the spot from the GTS Bus wherefrom the seized heroin was recovered. They were afforded opportunity to make statement on oath or to produce their defence to which they denied. The trial Court also held them to be in possession of the seized goods. In the identical circumstances in the case of State v. Umar Hayat and another PLD 1992 SC 393, the august Supreme Court held that "the prosecution has discharged its burden. It is not at all necessary for the prosecution to have proved that it was of foreign origin because the definition of smuggling covers this article as notified in the aforesaid notification".
11. Now reverting to the observation of the trial Court that Pakistan is the heroin producing country, it may be mentioned that to our knowledge there is no such factory registered under the Companies Ordinance, 1984, which is producing narcotic in the country. Mere speculation accusing Pakistan in the international comity would not classify her to be so. It is well known that our neighbouring country Afghanistan indulges in the cultivation and production of narcotic and in the absence of strict surveillance and lack of scrupulous check of the international borders of the two countries, it could easily be smuggled into Pakistan for onward transportation abroad. The admittance and concession of Riaz Orakzai, P.W.4 would have no legal value. Furthermore, the respondents in their confessional statements recorded by the Customs Official under section 165 of the Customs Act, had admitted their guilt. Though Ali Gohar respondeth stated that he thought bearings of foreign origin were being carried by. Them in the bus. Be that as it may, he knew that he was carrying smuggled goods in the bus. This Court in the case of Muhammad Farooq Afridi v. State 2002 PCr.LJ 196 has held that confessional statements of the accused made before the Customs Authorities duly signed by him cannot be hit by Article 38 of the Qanun-e-Shahadat, for, it cannot be termed as statement under section 161, Cr.P.C. Which need not signed by the maker under section 162, Cr.P.C.
12. In the circumstances, I am convinced that respondents were found in possession of heroin powder duly notified under section 2(s) of the Customs Act vide Notification No, SRO 491(1)/85, dated 23rd May, 1985. Resultantly, the appeal is allowed and the impugned judgment is set aside.
The respondents are convicted under section 156(1)(89) of the Customs Act and sentenced to 6 years' R.I. Each. However, benefit of section 388-B, Cr.P.C. Is extended to them. They are present in the Court today and taken into custody to undergo their sentence awarded today.
13. As to the cloth in question, the assessed value being less than 10,000 would not attract liability.
Therefore, order of the trial Court in this respect is maintained.