1997 P Cr (PLP)

On 21-5-1986, 31.615 Kgs. of heroin powder contained in the personal effects was booked as unaccompanied baggage by one Hussain Tariq by Flight No.BA-146 for Montreal (Canada). It was seized on 22-6-1986 by Canadian Customs Authorities as it allegedly contained 31.6 Kgs. of heroin powder concealed in milk cartons. This information was conveyed to the Government of Pakistan on 26-6-1986 and F.I.R. No.B-795/86 was filed by A. Naeem Khan, Senior Intelligence Officer of the Directorate-General of Intelligence and Investigation, Karachi on 1-7-1986. In the said F.I.R. it was alleged that one Nihar Muhammad, Preventive Officer, Customs House, Karachi had examined the baggage and allowed its shipment. It was mentioned that Nihar Muhammad deliberately avoided to identify the wooden box as mentioned in the airway bill and gave to it description of suit-case and thus connived at and abetted the smuggling of heroin. Nihar Muhammad was then arrested and challaned before the learned Special Judge (Customs and Taxation), Karachi. On 7-7-1986 a second F.I.R. in respect of the same offence was lodged by Habib-ur-Rehman, Inspector Preventive Service, Custom House, Karachi, in which Fazal Joseph DeMello, Sadaat Hussain, Kaleem and Hussain Tariq were shown as accused, the first three being the members of the staff of British Airways involved in the commission of the offence. The names of accused Kenneth Marshall, Nasir Mehmood and Rashid Ahmad Qadri were not shown amongst the accused, in the charge-sheet later submitted on 14-7-1986. Applicant Nasir Mehmood was for the first time shown involved when another charge-sheet was submitted on 20-7-1986 and the evidence against him seemingly was of telephonic conversation between him and accused Kaleem. Applicant Nasir Mehmood who claimed to be maliciously involved and there being no probability of his conviction, moved an application before the trial Court under section 265-K, Cr.P.C. which was dismissed on 5-4-1988. He then filed Criminal Miscellaneous Application No.395 of 1987 before this Court for quashment of proceedings. Other two accused also filed similar applications, which were dismissed by a learned Judge of this Court vide judgment, dated 12-3-1989 with following direction:-- "However, since the case is of 1986, I direct the learned trial Judge to proceed with the case expeditiously and examine at least four material witnesses within three months from the date of receipt of this order and thereafter, the applicants could repeat their application under section 265-.K, Cr.P.C. if so advised." Applicant Kenneth Marshall being dissatisfied with the above order of this Court dated 12-3-1989, challenged the same in Criminal Appeal No.56-K of 1990 before Supreme Court of Pakistan and joined applicant Nasir Mehmood and accused Zahid Hussain as respondents because these two accused had also filed quashment applications which were disposed of by single judgment. The appeal filed by applicant Kenneth Marshall was disposed of by the Supreme Court of Pakistan and with advantage I would like to reproduce last two paragraphs (paras.9 and 10) of the judgment:-- "We get an impression that the appellant and other co-accused, who are respondents in this appeal, are in attempt to delay the trial of this case one way or the other as F.I.R. No.795/86 was lodged on 20-7-1986 and F.I.R. No.31/86 was lodged on 20-7-1986, as shown in the index of this appeal, and challan in respect of the first F.I.R. was submitted on 14-7-1986 and in respect of the second F.I.R. on 20-7-1986. We, therefore, find no merits in this appeal and accordingly dismiss it. Now, we hope that if the statement made by the learned counsel, and we have no reasons to doubt, is correct, the High Court will dispose of the quashment applications expeditiously so that the trial Court could proceed with the trial of the case. It will also be open to the appellant to file fresh application under section 265-K, Cr.P.C., as was allowed by the High Court, if he is so advised and it will be decided on its own merits. " Since the witnesses as directed by this Court in the judgment, dated 12-3-1989 were not examined, the applicants Nasir Mehmood, Kenneth Marshall and Zahid Hussain filed Criminal Miscellaneous Applications Nos.279 of 1990, 193 of 1991 and 294 of 1992 which were dismissed on 3-3-1994 with directions to the trial Court to examine two complainants, A. Naeem Khan and Habibur Rahman and Investigation Officer within a period of three months, leaving it open to the applicants to repeat similar applications either before this Court or for their acquittal before the trial Court, as hereinabove-mentioned. The witnesses as directed were examined except complainant A. Naeem Khan who was given up on 9-6-1994. The two applicants in these applications and accused Rashid Ahmad Qadri have sought the quashment of proceedings after the evidence of 6 prosecution witnesses is recorded. I have heard the learned counsel and perused the record. The admitted facts are that with regard to the recovery of heroin from the unaccompanied baggage at Montreal (Canada) two F.I.Rs. were registered, one on 1-7-1986 by complainant A. Naeem Khan and in the interim challan whereof only Nihar Muhammad was sent up as accused whereas Hussain Tariq was shown as absconder. In respect of the second F.I.R., dated 7-7-1986, filed by Habibur Rahman challan was submitted on 20-7-1986 in which six accused were named but accused Joseph DeMello and Sadaat Hussain were discharged although named in the second F.I.R., dated 7-7-1986 and both Joseph De-Mello and Sadaat Hussain were shown as witnesses in the challan at Serial Nos.8 and

9. Names of three accused were added and they are applicants Kenneth Marshall, Nasir Mehmood and Rashid Ahmad Qadri, who have now sought quashment of proceedings against them. The contention raised by Mr. Rana M. Shamim, learned Advocate for applicant Kenneth Marshall and Rashid Ahmad Qadri, is that in his evidence P.W. Kabeer Ahmed who was examined by the trial Court on 8-1-1991 did not involve Kenneth Marshall as being either an accused or an accomplice and likewise in the evidence of complainant Habibur Rahman and Mir Ali Raza who were examined on 9-6-1994 and 11-6-1994 respectively, pursuant to the last direction given by this Court, nothing has come on record that either of the two accused Kenneth Marshall or Rashid Ahmad Qadri have had any hand in either the booking of cargo by British Airways or its shipment to Montreal. It is contended, that as against this, name of the Preventive Officer, Nihar Muhammad was shown as an accused who had examined the baggage and was even arrested but dropped as the accused, and this was done by the Investigating Agency to save their own employee. It is also argued that complainant -A. Naeem Khan who lodged the F.I.R. is given up by the prosecution and if his evidence had been recorded, the true facts of the case would have come on record and involvement of only Nihar Muhammad would have been proved. The evidence of P.Ws. Taqi Mirza and Bashir Ahmad (a Customs Officer) who are examined on 10-10-1994 and 1-12-1994 also does not advance the case of the prosecution in any manner whatsoever. According to the learned counsel, since the main witnesses have been examined and no case under section 156(1)(8) of the Customs Act, 1969 is made out, and the smuggling of allegedly recovered heroin powder is not proved under section 2(S), section 16 and section 178 of Customs Act, will, not be attracted and no useful purpose would be served even if the remaining witnesses are examined. Further, contention of the learned counsel is that the samples of the heroin powder were drawn at Montreal and as to who witnessed such recovery, nothing is evident from record till today as neither the samples nor the remaining quantity of heroin is before the trial Court. The names of the witnesses in whose presence heroin was recovered at Montreal, are not even mentioned in the joint challan. Yet another contention of the learned Advocate is, that the baggage booked at Karachi reached its destination after 28 days and during this period where the suit-case or the wooden box remained, nobody knows, as there is no evidence to that effect. The sum total of the contentions of the learned counsel is that from the evidence of six P.Ws. so far examined the implication of either accused Kenneth Marshall or Rashid Ahmad Qadri is not proved and in the circumstances allowing the proceedings to continue before the trial Court would be an abuse of process of Court particularly for the reasons that the case is of the year 1986 and it has taken more than eight and a half years but the conclusion of trial is not in immediate sight. Mr. Rana has also urged that when the case property is not before the Court, no conviction against the accused can be recorded. He referred the case of Iqbal and another v. The State 1985 PCr.L1 286 where a learned Judge of this Court set aside the conviction and sentence of the accused in a case where whole case property was not produced before the Court and only a part thereof was produced. It was held that the evidence of Mashirs was not of much help to prosecution. In said case the mandatory provisions of section 171, Customs Act regarding search and seizure were not complied with and even the required notice under section 171 of the Act was not served on the accused. Reliance is also placed on the case of Abdul Sattar v. The State 1984 PCr.LJ 2185 where one of the grounds for setting aside the conviction was that the goods seized under the Customs Act were not produced before the trial Court. Learned counsel then referred the case of Khairuddin and 2 others v. The State 1974 PCr.LJ 219 where a learned Judge of this Court set aside the conviction of an accused under section 411, P.P.C. on the ground that the property was neither properly described nor produced in Court and giving benefit of doubt acquitted the accused/convict. Similar view was taken in the case of Muhammad Sharif etc. v. The State 1982 PCr.LJ 1067. This was a case of recovery of smuggled goods under the Customs Act. The case property was neither produced nor identified by witnesses in presence of accused. The conviction and sentence was set aside and the case remanded for retrial. Mr. A.Q. Halepota, learned Advocate for applicant Nasir Mehmood, has strongly criticized the conduct of Investigating Agencies in registering F.I.Rs. and mentioning names of various accused at different stages but excluded the name of Nihar Muhammad, Customs Officer who at the earliest stage was found deeply involved in the case. It is then contended that even if the consignment was booked by a passenger in the name of Hussain Tariq, the question would be as to how far accused Nasir Mehmood, Proprietor of Trans Continental would be liable merely because the baggage was booked through his cargo agency. No witness examined so far has deposed anything against Nasir Mehmood so as to show his involvement in the case. Learned counsel has pointed out that the only evidence against accused Nasir Mehmood as shown in the charge-sheet No.DEC-31/86 of the first F.I.R. No.31/86 is, that accused Kaleem after his arrest was allowed by I.P.S. Mr. Raheem Bux to talk on telephone with Nasir Mehmood who gave some briefing to Kalopin and from such conversation it was presumed that Nasir Mehmood of Trans Continental was also privy to the whole act. This piece of evidence, according to the learned counsel, even if believed, cannot end in conviction for there is no supporting evidence whatsoever. It is next argued that in the subsequent supplementary challan nothing more has been shown as further evidence against accused Nasir Mehmood and because there is no likelihood of conviction of accused, no useful purpose would be served in allowing the proceedings to continue. Mr. Ikram Ahmed Ansari, learned D.A.-G., has opposed the applications and has contended that the directions of this Court in the last order, dated 3-3-1994 have been complied with and before approaching this Court and seeking quashment, the applicants ought to have moved the trial Court for their acquittal under section 265-K of Cr.P.C. Referring then to the contentions of applicants' learned counsel that the narcotics allegedly seized in Canada and being the case property are not produced before the trial Court, it is contended that efforts are being made to collect the material from the Canadian authorities and it is confirmed that the staff of the Investigating Agency has reached Montreal. As soon as the information was received from the Canadian authorities that from the unaccompanied baggage 32 Kgs. of heroin powder was recovered, the F.I.R. was registered and investigation carried on and whosoever was found involved in the case, was joined as an accused and there was neither any mala fide nor animus on the part of the Investigating Agency. Regarding the delay in disposal of the case, it is contended that the applicants are themselves responsible for such delay as they repeatedly filed applications before the trial Court for their acquittal, before this Court for quashment and given before Honourable Supreme Court. Learned D.A.-G. contends that in a case like this where huge quantity of heroin powder was recovered from the baggage booked from Pakistan, it would be improper to quash the proceedings. Various contentions raised by the learned counsel have been duly considered in the light of evidence so far recorded by the trial Court and the earlier orders passed by this Court as well as by the Honourable Supreme Court of Pakistan. On 1-7-1986 in the first F.I.R. lodged by A. Naeem Khan, Senior Intelligence Officer, Nihar Muhammad was shown as an accused as he deliberately avoided to identify the wooden box and gave it description of a suit case. The second accused shown with him was Hussain Tariq. a British National the consignor and consignee of the unaccompanied baggage. In the second F.I.R. lodged by Habibur Rahman Inspector Preventive on 7-7-1986, those shown as accused are Hussain Tariq, Fazal, Joseph DeMello, Sadaat Hussain and Kaleem. These accused except Hussain Tariq were said to be members of the staff of British Airways by which the unaccompanied baggage was to be transported. In the challan, however, applicants Nasir Mehmood and Kenneth Marshall were shown as accused besides the accused named above and one Shaikh Zahid was shown as absconder. Even this time Nihar Muhammad was not shown as an accused although for him it was said in the first F.I.R. that due to his avoidance to identify the wooden box to which he gave the description of a suit-case, the consignment was transported. The charge-sheet was submitted on 20-7-1986 and in column No.3 thereof the names of accused sent up were Nasir Mehmood, Fazal, Kaleem Ahmad, Kenneth Marshall and Rashid Ahmad Qadri while those not sent up were named in column No.2 of challan as Hussain Tariq, Joseph DeMello and Sadaat Hussain. In the final charge-sheet submitted on 12-12-1987 the same was the position in the interim charge-sheet dated 20-7-1986. Yet another charge -sheet said to be the supplementary charge-sheet was submitted on 18-12-1994 with the names of the accused being the same as in the earlier charge-sheets, dated 20-7-1986 and 12-12-1987. Prosecution so far has examined P.W.1 Kabeer Ahmed on 8-1-1991, P.W.2 Habibur Rahman (complainant in the second F.I.R.) on 9-6-1994, P.W.3 Mir Ali Raza on 14-6-1994, P.W.4 Raheem Bux (partly examined) on 20-10-1994, P.W.5 Taqi Mirza on 20-10-1994 and P.W.6 Bashir Ahmad on 1-12-1994. Complainant A. Naeem Khan who lodged the' first F.I.R. on 20-6-1986 is, however, given up by the prosecution on 9-6-1994 and no reason for his being given up is shown when there was a direction from this Court to examine him as well as Habibur Rahman the complainant in the second F.I.R., besides the Investigating Officer. It was this A. Naeem Khan complainant who after the registration of F.I.R. had even arrested Nihar Muhammad and put up a challan against him and against Hussain Tariq the person who allegedly booked the baggage. Not only this but Joseph DeMello, Sadaat Hussain and Hussain Tariq are not even finally sent up though they were joined in the investigation and two of them, namely, Joseph DeMello and Sadaat Hussain were even arrested. From the evidence of the six witnesses examined what has come on record is that applicant Nasir Mehmood with whom the accused Kaleem Ahmad had a telephonic conversation had assured Kaleem Ahmad that everything will go well. Against applicant Kenneth Marshall the only evidence that has come is that he at the relevant time being an employee of the British Airways had facilitated the stuffing of heroin powder in the suit-case on Friday, the 23rd May, 1986 when the office of the British Airways normally remains closed due to holiday. Against Rashid Ahmad Qadri the evidence is that he being the representative of Taqi Cargo Agents, of which applicant Nasir Mehmood was the Resident Director, handed the cargo in British Airways Shed on a holiday and had facilitated the stuffing of narcotics in the unaccompanied baggage. This piece of evidence is based on presumptions, as there is no witness in the case who may have testified to the above role attributed to Kenneth Marshall and Rashid Ahmad Qadri. The question that would arise is, whether in such circumstances and .in view of such evidence, any conviction against these three accused can be recorded even if the analyst's report about the stuff allegedly recovered at Montreal is in positive. Accused Nasir Mehmood was the proprietor of Trans Continental, cargo agents of British Airways. Being the proprietor of the Trans Continental, it could not be supposed that all consignments booked through his agency would either be examined by him or that he would be supposed to have knowledge about the contents of each consignment. It is for the concerned Custom Officials to examine the outgoing or the incoming consignments. Nothing has been brought out in evidence that accused Nasir Mehmood, Kenneth Marshall or Rashid Ahmed Qadri had either the knowledge that the wooden box booked by Hussain Tariq which. Custom Officer Nihar Muhammad ' described as suit-case contained any narcotics or an attempt to smuggle heroin powder out of Pakistan was being made. Complainant A. Naeem Khan who had registered the first F.I.R. has been given up and during investigation by him he had found involvement of Nihar Muhammad and Hussain Tariq. There is thus force in the contentions of learned counsel of the applicants that if A. Naeem Khan had been examined by the trial Court and cross-examined by the defence the true facts would have come to light and he is given up only to save an officer of the Customs Department (Nihar Muhammad). The learned trial Court was directed to examine him besides the second complainant Habibur Rahman and although it was the option of the prosecution to either examine a witness or to give him up, yet, for giving up an important witness like complainant, without any reason, would suggest that he would not have subscribed either to the second F.I.R., to the investigation carried on or as to the actual accused who were privy to the whole act. Be that as it may, the fact, however, remains that from the evidence of the second complainant Habibur Rahman and the five witnesses named above E who are examined, no case under section 2(S) punishable under section 156(1) (8) or sections 16 and 178 of the Customs Act, 1969 is made out against these three accused. The incident took place on 21-5-1986 when the consignment was booked and which was seized at Montreal on 22-6-1986. On, the basis of information received from the Canadian authorities the first F.I.R. was lodged on 1-7-1986. It is more than eight and a half years by now that neither the report about the recovered heroin is produced before the trial Court nor the recovered stuff is before the Court. All that has come in evidence is that the information received from the concerned agencies is that the stuff so recovered was heroin powder. The names of the persons in whose presence the recovery was effected from the consignment at Montreal are not disclosed in the challan nor the name of the analyst who examined the same. As held in a number of cases, some of which are cited by the learned counsel, no conviction can be recorded against an accused when the property, which is subject-matter of the case is not produced before the Court. The learned D.A.-G. stated that in very near future the property of the case would .be available before the Court but he was not able to state as to within how much time such could be possible. Powers of this Court under section 561-A, Cr.P.C. are co-extensive with the powers of the trial Court to acquit an accused under section 265-K or section 249-A of Cr.P.C. in appropriate cases. Twice before, the applicants had approached this Court but with no success and they remained satisfied with the directions given to the trial Court for expeditious disposal of the case. Being dissatisfied with the manner the prosecution conducted either the investigation or the proceedings before the trial Court, the applicants have again approached this Court through these applications. The apprehension of the applicants that the manner in which the trial progressed may take indefinite period for conclusion, is not ill-founded. Applicants have with success shown that there is no likelihood of conviction being recorded against them in the light of the particulars given in the challans about the part played by each accused and the evidence that has come on record. There is thus force in their contentions that continuance of proceedings against them in the circumstances would be an abuse of the process of the Court. In the light of above discussion, I allow these applications and quash proceedings against applicants/accused Nasir Mehmood and Kenneth Marshall. Because Miscellaneous Application No.379 of 1995 moved by the accused Rashid Ahmad Qadri, one of the accused, was allowed by consent, and against him also there being no evidence so as to entail his conviction, the proceedings against him are also quashed. The case may proceed against rest of the accused who although were arrayed as respondents in Criminal Miscellaneous Application No.477 of 1994, have neither appeared nor were represented by a counsel who may have argued on their behalf. N.H.Q./K-388/K Proceedings quashed.