2000 PLP 10 (YLR)

Mr. Ch. Muhammad lqbal, the learned Standing Counsel contended that prosecution has adduced sufficient evidence, which was considered and properly appreciated by the learned trial Court. That there are no material contradictions in the evidence recorded by the learned trial Court. That samples were drawn in accordance with the prescribed rules. That there is no delay in lodging of the F.I.R. and the timings Mentioned in the Mashirnama of the seizure of the heroin powder and in the lodging of the F.I.R. are corroborating each other. That learned Standing Counsel pointed out that appellant has admitted the seizure of the passport, air ticket and NIC as well as service of notice under section 171 of the Customs Act. That learned Standing Counsel further pointed out that appellant neither examined himself on oath in order to disprove the charge nor adduced any evidence in his defence and simply claimed to be innocent and of having been falsely implicated in the case. That learned trial Court has very rightly appreciated the evidence and recorded the conviction which dries not call for any interference by this Court Learned Standing Counsel also pointed out that though 1.5 Kg. brown colour heroin powder was recovered but the learned trial Court took lenient view and convicted the appellant to suffer R.I for three years and to pay fine of Rs.50,000 which shows that learned trial Court has already taken very lenient view in awarding conviction. Learned Standing Counsel referred to the following case‑law: (1) Ehsan Elahi Malik v. The State (1980 P Cr. L J 186): (2) Santas Maria Teresa v. The State (1991 M L D 2576): (3) Ghulam Jillani v. The State (1991 P Cr. L J 1003). It would be pertinent to refer to the evidence recorded by the learned trial Court during trial. P.W.1 Irfan Ahmed in his evidence has supported the case of the prosecution. He also during examination‑in- chief produced the Mashirnama of seizure of heroin, powder, passport air ticket. NIC and notice under section 171 of the Customs Act. He .vas subjected to cross‑examination by the learned counsel for the appellant wherein he stated that he had drawn samples from all the 31 polythene bags and denied the suggestion of the defence that he had not prepared the sample by drawing the heroin powder from all the 31 polythene bags. He very frankly admitted that he did not mention the facts of the key either in the F.I.R. or in the Mashirnama and admitted that the same had not recovered from the appellant. P.W.2 Akhtar Farooq also stated the same facts which were given by P.W.1 and fully corroborated evidence with regard to the examination and search of the baggage of the appellant by the seizing officer as well as recovery of 31 polythene bags. He also identified 31 polythene bags which were taken out from a sealed cloth bag unsealing the same in the Court. In cross‑examination he also admitted that he was a dog handler and according to the instructions he was not required to leave the dog even for a moment but at the time when he was called by the complainant he had locked the dog in a room adjacent to the departure hall. P.W.I Akhtar Farooq during cross‑examination was asked about his appearance as a witness in a case prior to this case pertaining to the heroin powder and witness admitted that he had not supported the prosecution version in that case. This fact negates the contention of the learned counsel for the appellant that P.W.2 was under influence and control of the customs officer and could not have made true and straightforward statement. The fact that he did not support the prosecution case in an earlier case clearly establishes his capability of making true and straightforward statement of the facts as witnessed by him and he could not be forced or pressurised to make false or wrong statement. In view of the above fact the learned trial Court has rightly held that P. W. 2 Akhtar Farooq was independent and impartial witness and his evidence can safely he relied upon by the prosecution to corroborate the evidence of Irfan Ahmed complainant. The contention of the learned counsel for the appellant that keys of the suit case were not recovered and were not produced in the Court. This contention was considered by the learned trial Court and after considering the evidence of two P.Ws. Irfan Ahmed and Akhtar Farooq has rightly held that failure to recover the keys from the appellant and to produce them in Court during course of the evidence did not in any way negate the prosecution case with regard to the ownership and possession of the appellant in respect of the suitcase in dispute. Reference may be made to a reported case of 1986 PCr.LJ p.136 wherein non‑production of the original key with which the suitcase in dispute was opened was not considered to be an important and glaring omission so as to doubt the ultimate recovery of incriminating article and to have bearing on the guilt of the appellant. In the instant case suitcase in dispute was not got opened with the help of the key but the same was opened by re adjusting the numbers as such failure of the prosecution to recover the key from the appellant is absolutely immaterial. Admittedly Mashirnama of seizure of the heroin powder shows that it was prepared at 19‑40 hours and the heroin powder so recovered was sent to the Deputy Chemical Examiner, Custom Chemical Laboratory which was received by the laboratory on 12‑5‑1992. The report of the Chemical Examiner, which is filed as Exh.6‑A reads as follows: "One sealed sample in duplicate received under the description "Heroin" on chemical examination is found to be Heroin of commercial grade. It is in the form of brown colour powder." In this background of the facts of the case and evidence referred to hereinabove I would like to discuss the case‑law referred to by the learned counsel for the parties. (1) (1975 SCMR 337): In this case respondents were tried and convicted under sections 148, 302/149 and 307/149, P.P.C., by the Additional Sessions Judge, who sentenced three to death and two to imprisonment for life on the charges. On appal and reference, the High Court accepted the appeals and set aside the convictions and sentences, reference was also rejected. Complainant Miran Bux, approached the apex Court for special leave to appeal and their Lordships of the Supreme Court found that counter‑report of that incident was lodged by the respondent, Niaz Kori at the same police station the same day at 5‑30 p.m. alleging that while he was sitting in the shop of Yawar Pathan alongwith Bachal Shah and Rafiq Chumro the complainant party came there armed with guns, hatchets and Lathis. Out of them one Qalb Ali abused him and instigated others not to spare him. On this Taj Muhammad and Miran Bux gave him hatchet blows and Sawan fired his gun. Their Lordships of the Supreme Court considered that in the F.I.R. lodged by the petitioner with regard to the same incident, nothing was mentioned about any one of the accused persons being injured or of any fight in the shop of Yawar Pathan. The Investigating Officer, who inspected the shop of Yawar Pathan found that not only its furniture was damaged but also there were drops of blood on many articles in the shop and S.H.O. also got the injured examined by a doctor. Blunt weapon injuries were found on the respondents, Niaz Kori, Hatim and one, Bachal, whose name was mentioned in the counter‑report filed by Niaz Kori. I am afraid the fact of this case are quite different to the case in hand and are not applicable. (2) (1993 SCMR 550): Observations of their Lordships in this case is that statements of witnesses in the Court in which improvements are made to strengthen the prosecution case are not worthy of reliance. Actually there is no improvement in the statements of the witnesses recorded by the prosecution as well as recorded by the Court during trial. (3) (1994 PCr.LJ 1151): In this case, according to the Preventive Officer, Customs House, appellant Muhammad Aslam Naz reported at the Customs Counter and before examination of his baggage, he was asked to declare if he was carrying any incriminating goods in his baggage or on his person. Upon refusal by appellant his baggage comprising of one hand bag and one plastic shopping bag was subjected to thorough examination in presence of Mashirs Muhammad Tahir and Muhammad Shahbaz and Customs Authorities recovered Pak. currency. Appellant's statement was recorded under section 342 of Cr.P.C., and he denied if the currency recovered from the hot pot or the sweetmeat box belonged to him. He further stated that the notice under section 171 of Customs Act was served on him in the lock‑up of Customs after 3 or 4 days. He also stated that he was standing outside the International Departure Hall alongwith his maternal uncle Mirajuddin and the shopping bag containing the hot pot and sweetmeat box belonged to his uncle Mirajuddin, currency kept in hot pot and sweetmeat box was recovered and foisted on him. Appellant also examined himself as his own defence witness under section 340(2), Cr.P.C., and gave the same version as in his statement under section 342 of Cr.P.C. He also examined Haji Mirajuddin as D.W.2 who supported the version given by the appellant. Appellant also examined Khushi Muhammad as D.W.3, who confirmed the statement of Mirajuddin. In this background of the matter, learned Appellate Customs Court allowed the appeal of the appellant and set aside the conviction whereas in this case neither appellant has stated anything about recovery of heroin powder whereas be has admitted his arrest seizure of his passport, air ticket and (SIC by the seizing officer. He did not examine himself on oath in disprove of the charge neither any evidence in his defence was produced by the appellant. (4) (N L R 1996 Cr.89): In this case two Mashirs have not supported the case of the prosecution inasmuch as they have stated that these Mashirnamas of seizure and arrest were not read over to them and they do not know the contents thereof'. Keeping in view the above facts appeal of the appellant was allowed. (5) (1997 M L D 1708): In this case it Was found that matter pertaining to the suit case from which heroin powder was allegedly recovered was held in dispute as all along the accused had challenged the same, whereas in the case in hand nothing has come on the record to show that suitcase did not belong to the appellant, whereas the seizing officer the Mashir both have supported the case of the prosecution as well as recovery of heroin powder from the suitcase of the appellant even during course of evidence nothing was brought out in favour of the appellant. I would like to discuss the case‑law referred to by the learned Standing Counsel. (1) (1980 PCr.LJ 186): In this case it was held that accused purchasing ticket for going to a foreign country, checked in at Airline counter, given boarding card and baggage tags and finally asked to make a declaration. Accused in declaration suppressing information regarding huge quantity of foreign currency in his possession and precious stones carried by him and the learned Court after considering the above facts dismissed the appeal. (2) (1991 PCr.LJ 1003): In this case it has been held that testimony of prosecution witnesses could not be shattered in cross- examination, Customs Authorities had no malice or ill‑will against accused to falsely implicate hint in the case or to substitute him in place of real culprit. (3) (1991 MLD 2576): In this case appellant who was leaving for Amsterdam by KLM Flight No.842 presented her baggage before Preventive Officer, Pakistan Customs at the Customs Counter, Terminal III, Karachi Airport for checking. At that time co‑accused was also with her, when she was asked to declare whether she was carrying any contraband goods with her, she replied in negative. Being dissatisfied with this reply Athar Meraj, Preventive Officer, searched the baggage and recovered 16 polythene packets containing powder of heroin weighing 2250 grams concealed in a brief case and suitcase. Requisite samples were drawn and such inventory was prepared in presence of Mashirs Muhammad Rafique and Feroz Gul and then notice under section 171 of the Customs Act was served. After finalization of the investigation, the case proceeded before the learned Special Judge (Customs and Taxation), Karachi who found the appellant guilty and sentenced her to suffer R.I. for four years and to pay a fine of Rs.50,00,000 or in default to suffer R.I. for one year. During trial the prosecution examined Ather Meraj, Preventive Officer, and two Mashirs Muhammad Rafique and Feroz Gul. The two Mashirs did not support the case of the prosecution but a celebrated Judge of this Court Mr. Qaiser Ahmed Hamidi, J. observed as under: "I may state that as a rule the witnesses are weighed and not numbered. The volume and weight of the evidence may be considered together, but if there is conflict between the two, the quantity will certainly give way to quality. There is no impediment in law in a conviction being based upon the testimony of a solitary witness, provided that the witness is trustworthy. " In this background of the case appeal was dismissed and the conviction was upheld. I have gone through the material placed with the case. Admittedly the appellant was arrested at the International Departure Hall by Irfan Ahmed who recovered heroin powder from his suitcase alongwith his passport air ticket and NIC. The evidence of the complainant coupled with evidence of Mashie Akhtar Farooq and I.O. of the case as well as report of the chemical examiner show that the substance so recovered was heroin powder of commercial grade. During entire evidence nothing substantial was brought out in favour of the appellant. Admittedly no enmity or malice has been shown by the appellant against the P.Ws. Appellant himself did not enter the witness‑box and even did not lead any evidence in defence. He in his statement under section 342, Cr.P.C., has admitted the seizure of his passport, air ticket and NIC and his arrest at the International Departure Hall from where he was scheduled to Kualalumpur. No material contradictions or infirmity in the evidence has been brought out. The case‑law referred to by the learned counsel for the appellant as discussed hereinabove is quite different and distinguishable and is not helpful to the case of the appellant, whereas the case -law cited by the learned Standing Counsel is relevant which I respectfully follow. Their Lordships of the Supreme Court in a reported case of Malik Awan v. The State (1986 SCMR 17), have observed as under: "There is no law that deposition of one witness should not be believed and accepted nor it was in contravention of any principle." Here in this case not only the evidence of Irfan Ahmed is available against the appellant but Mashirs of the recovery has also fully supported the prosecution case which is corroborated by the chemical examiner's report same is in positive. Drug trafficking specially heroin is menace, which has created problems not only for the Government but it has created problems for the society at large. The people involved in drug trafficking does not deserve any sympathy at all. The contention of the learned Standing Counsel that learned trial Court while awarding conviction has also shown leniency to the appellant is not without force. Upshot of the above discussion is that there is no merit in the appeal, which accordingly is hereby dismissed. The impugned judgment is hereby maintained. Appellant is on bail, his bail bonds are discharged and he may be taken into custody. N.H.Q./N‑3/K