1. ' Appellant Ashfaq Ahmed Khawaja was tried alongwith co-accused Tisi Lorenzo, Omair Ahmed Siddiqui and Khalid Mahmood for an offence under section 156(1)(8) of the Customs Act by the learned Special Judge (Customs and Taxation), Karachi and convicted the appellant and co- accused except Khalid Mahmood and sentenced them to suffer R.I. For five years and fine of Rs,2,00,000 each in default of payment of fine to further suffer R.I. For one year, whereas, Khalid Mahmood was acquitted, by judgment, dated October 11, 1997.
2. ' The appellant has questioned the legality of his conviction and sentence reported against him by the impugned judgment by this appeal.
3. ' The prosecution case according to the report, a credible information' was received by F.I.A. (I&AS)
4. Sea. Port, Karachi that a foreign national, namely, Tisi Lorenzo with active connivance of officials of the Government Agencies working at Jinnah. Terminal Complex, Karachi Airport, will attempt to smuggle contraband item like heroin powder through KLM Flight No,550 on 11-12-1993 scheduled for departure for Amsterdam at 01-05 hours, they received further information that the contraband will be handed over to aforesaid foreigner in the departure lounge after security clearance. On such information Inspector Hussain Ali Baloch with S.-I. Badaruddin Baloch, A.S.-I. Shafaat Ali, Head Constable Javed Hussain, F.Cs. Farzand Ali, Shamim Baig and Sher Muhammad and under the supervision of Ch. Muhammad Sharif, Assistant Director, F.I.A. I&AS., Karachi Airport reached at Jinnah Terminal. Since the outgoing passengers of above flight had to board the plane through Gate No,23, as such Inspector Hussain Ali Baloch alongwith F.I.A. Party took position near toilet in front of. Gate No,23 to keep vigilance on said passenger. After a short while, aforesaid foreigner alongwith one person was noticed entering the toilet, Inspector Hussain Ali Baloch, A.S.-I. Shafaat Ali, F.C. Shamim Baig entered the toilet premises and encircled both the above persons. Their personal search was taken, which resulted in the recovery of 2-1/2 kilograms heroin powder of brown colour with Italian Passport, Boarding pass, Air ticket, identity card and visiting card of Omair Ahmed Siddiqui, Deputy Superintendent, Civil Aviation Authority, Karachi Airport was secured.
5. Omair Ahmed Siddique, who had accompanied Tisi Lorenzo was also questioned and his personal search was also conducted which resulted in the recovery of two polythene bags wrapped in left knee with cap containing approximately 2-1/2 Kgs. Heroin powder, CAA Card, plastic coated copy of NIC, Airport Functionary pass and A.S.-I. Service Card was also secured from the possession of Omair Ahmed Siddiqui. The articles were seized under the seizure memo. And accused were arrested in presence of the witnesses. On pointation of arrested accused, Omair Ahmed Siddiqui, House in Manzoor Colony, Karachi was also raided, which resulted in recovery of 20 Kgs. Of heroin powder of brown colour and arrest of acquitted accused, Khalid Mahmood with blank cheques and counter-foils of used cheques.' He was also arrested.
6. ' On the basis of statement of A.S.-1. Shafaat Ali under section 161, Cr.P.C. And on disclosure of accused Omair Ahmed Siddiqui, appellant Ashfaq Ahmed, who was serving in the A.S.F. As Inspector and was posted at Karachi Airport was arrested for his involvement or connivance' with above accused. After the investigation, the appellant with co-accused were sent up to face their trial.
7. ' At the trial, the appellant denied the charge.
8. ' The prosecution in support of its case examined P.W. Hussain Ali Baloch, who conducted the raid, secured the articles and arrested the accused and also conducted the investigation, P.W.2, A.S.-I.
9. Shafaat Ali recovery Mashir and by P.W.3 Abdul Karim Sherwani, who had recorded the confessional statement of accused Omair Ahmed Siddiqui. The appellant in his statement under section 342, Cr.P.C. Has denied the prosecution case and pleaded his innocence and also examined himself in defence, wherein his plea was that on 11-12-1993, he was posted as Inspector A.S.F. In domestic Departure Lounge Airport, Karachi, about 2 or 3 months prior to the incident, Ch. Sharif, Assistant Director of F.I.A. Came with Bilal Qureshi the brother of the then caretaker Prime Minister and both wanted to go inside the International Departure Hall. A.S.-I. On duty reported the matter to him being Incharge, he allowed Ch. Muhammad Sharif as he had entry pass with him but Bilal Qureshi was not allowed on which Ch. Shard became annoyed and asked his name and said that he has insulted his guest and said that, he will teach him a lesson for this insult. He was performing his duty upto 21-12-1993 when he was called in his office and there he was informed that he had helped accused Omair Ahmed Siddiqui after taking Rs,10,000 from him and he informed that Ch. Sharif of F.I.A. Had asked them to hand over his custody to them as Ch. Sharif wanted to take revenge from him and he was implicated at the instance of Ch. Sharif.
10. ' After the conclusion of the trial, the learned Special Judge convicted the appellant and co- accused with sentence referred to above, whereas, Khalid Mahmood was acquitted. Hence the present appeal.
11. ' I have heard Mr. Rana M. Shamim learned counsel for the appellant and also perused the record and with his assistance I have reappraised the evidence recorded during the trial.
12. ' The role assigned to the appellant in the commission of the offence is that he was found entering the Departure Lounge alongwith co-accused Tisi Lorenzo and Omair Ahmed Siddiqui through Gate No,23 and came, up to the security desk and went back after shaking hand with staff. Such tact has been deposed by P.W. Shafaat Ali, who was one of the members of the raiding party but his testimony does not get corroboration from P.W. Hussain Ali Baloch. According to him, he noticed accused, Tisi Lorenzo coming towards the gate with one person (of Pakistani origin). After clearance from the security and also say both of them namely, Tisi Lorenzo and other person whose name was disclosed later on as Omair Ahmed Siddiqui, entered the toilet premises. Second piece of evidence is in the shape of confessional statement of co-accused Omair Ahmed Siddiqui but the learned Special Judge has discarded the confessional statement. The fact stated by. A.S.-I.
13. Shafaat Ali is not supported by any other material. Entrance in Departure Lounge itself is not an offence, more particularly, when the appellant is himself an employee of A.S.F. Unless his complicity with co-accused, in the crime is established. Mere entrance of the appellant at the same time that of co-accused may not be of any penal consequences. The prosecution has miserably failed to prove the charge against the appellant. As'consequence thereof; the appellant Ashfaq Ahmed Khawaja is entitled for acquittal, therefore, his conviction and sentence recorded through impugned judgment dated 11-10-1997 by Special Judge (Customs and Taxation) is set aside. The appellant be set at liberty, if in custody.