1993 P Cr (PLP)

2. The facts of the prosecution case, as disclosed in the First Information Report lodged by P.W. Abdul Naeem Khan on 25-4-1985 are that, information had been received by the Directorate of Intelligence and Investigation (Customs and Excise), Karachi that a huge quantity of smuggled Charas had been purchased in Peshawar by a group of narcotic smugglers namely, appellants Anwar Khattak and Iqbal Bala in partnership with one Essa Bikik and Babu and the said consignment of Charas was to be brought by the accused from Peshawar and dumped near Karachi. The information further disclosed that accused Essa Bikik and Babu were to subsequently arrange for the smuggling of the said consignment through the coastal areas.

3. The staff of the Directorate who were keeping watch observed abnormal activity in the area and absconding accused Allah Bux and Jumo Bikik were found dumping the consignment in Deb Movidan in District Karachi, about 30 kilometres from Hub Dam. Information was immediately passed on to the Director-General Pakistan Coast Guards which immediately provided necessary assistance.

4. A joint team led by Deputy Director, Directorate of Intelligence and Investigation reached the spot on 24-4-1985 and tried to encircle the dumping area at Deb Movidan in presence of two independent Mashirs, namely, Latif and Muhammad Siddiq. Thereafter fire was exchanged between the raiding party and the smugglers and the accused taking advantage of thorny bushes and hilly area managed to escape. Search of the area was then conducted and co-accused Essa was arrested. A single-barrel shot gun loaded with live cartridges and one belt with four live and two used cartridges were recovered from the scene of the occurrence in the presence of the said Mashirs. The Charas which had been concealed in dried bushes, which had been packed in cotton cloth bags, was also recovered. The bags had markings such as "King", "Kohinoor", "Freedom of Afghanistan" and "Golden Crown", etc. The said articles alongwith one National Identity Card No.522-16-042091 were seized under a Mashirnama. Since it was not possible to weigh a huge quantity of Charas at the spot, it was transported in hired trucks and a bus from Deb Movidan to the office of the Directorate of Intelligence and Investigation, Karachi. On being weighed it was found to be 17,500 kilograms.

5. Three samples were drawn from the Charas for chemical analysis. Accused Essa was arrested and notice under section 171 of the Customs Act was served upon him. During the preliminary investigation it was revealed that the persons who had absconded from the scene were Allah Bux son of Haji Ismail and Jumo Bikik who was related to Essa Bikik.

6. F.I.R. in respect of the incident was lodged on 25-4-1985 wherein accused Allah Bux, Jumo Bikik, Ishaque, Anwar Khattak, lqbal alias Bala, Essa Bikik, and Babu were shown as absconders.

7. Investigation in the case was conducted by P.Ws. Khalid Mehmood, Mukhtar Hussain Bhutta and Mehar Dad Khan. Khalid Mehmood was also a member of the raiding party. On 26-4-1985 Khalid Mehmood recorded statements of Mashirs, Latif and Muhammad Siddiq, and on the next date he recorded statements of P.Ws. Abdul Naeem Khan, Tanseer Aftab and Masroor Burney. He interrogated accused Ishaque on 26-6-1985. On 4-9-1986 the witness sent samples taken from the Charas to the Chemical Examiner for test. On 4-9-1986 the investigation of the case was transferred from P.W, Khalid Mehmood to P.W. Mumtaz Hussain Bhutta.

8. P.W. Mumtaz Hussain Bhutta recorded statements of P.W. Khalid Mehmood, Naeem Khan and Tanseer Aftab and in the year 1990 the investigation was once again transferred to P.W. Khalid Mehmood. However, on 1-5-1990 the investigation of the case was entrusted by P.W. Khalid Mehmood to P.W. Mehar Dad Khan.

9. After receiving the case papers from P.W. Khalid Mehmood, P.W. Mehar Dad Khan recorded statement of P.W. Muhammad Iqbal son of Muhammad Siddique on 8-5-1990 and on the next day i.e. on 9-6-1990 he recorded statement of P.W. Arshad Naseer Abbasi. On 11-6-1990 statement of the said witness was got recorded under section 164, Cr.P.C. A further statement of the witness was also recorded by the Investigating Officer on 22-6-1990. The Investigating Officer then recorded statements of various other persons, namely, Kazi Hayat, Noor Ahmed, S.I.O., Choudhary Nisar S.I.O. and P.W. Nisar Ahmed. On 27-5-1990 appellant Mirza 1qbal Baig was arrested and interrogated by the Investigating Officer who also served a notice under section 161 of the Customs Act upon him. On 22-12-1990 a supplementary charge-sheet was submitted against the accused before the learned trial Court.

10. The learned trial Court besides examining Khalid Mehmood, Muhammad Ahmed Khan, Syed Abrar Haider, Asadullah Khan, Noor Ahmed and Zahoor Ahmed Kazi, all of whom were process-servers, also recorded the evidence of P.W.1 Ghulam Muhammad, Deputy Director, Passport Office, Karachi; P.W.2 Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner; P.W.3 Abdul Naeem Khan, Sealing Officer; P.W.4 Latif, Mashir of the recoveries; P.W.5 Syed Masroor Ahmed Burney, S.I.O.; P.W.6 Tanseer Aftab, S.I.O.; P.W.7 Arshad Naseer Abbasi, P.W.8 Salahuddin, Statistical Assistant, District Registration Office, Karachi; P.W.9, Abdul Masood, District Registrar, National Identity Card, Lahore; P.W.10 Riaz Ahmed, Assistant Director, Passport, Lahore; P.W.11 Nisar Ali, S.I.O., Directorate of Customs Intelligence, Lahore; P.W.12 Shamsul Huda, Sepoy, Customs House, Karachi; P.W.13 Khalid Mehmood, Investigating Officer; P.W.14 Mukhtar Hussain Bhutta, Investigating Officer and P.W.15 Mehar Dad Khan, Investigating Officer.

11. The appellants in their statements recorded under section 342, Cr.P.C. denied the prosecution's allegations and claimed to be innocent. They, however, did not examine themselves under section 340(2), Cr.P.C. nor they produced any evidence in defence.

12. The case of the prosecution mainly hinges on the evidence of P.W. Abdul Naeem Khan, the Seizing Officer and P.W. Arshad Naseer Abbasi. The latter deposed that he was an ex-Major in Pakistan Army. He was dismissed from Pakistan Army on 22-2-1986. Thereafter, appellant Anwar Khattak who was known to the witness since 1982 gave him job. The witness subsequently started business with appellant Anwar Khattak in the name and style of "Sunrays International Private Limited" of which the said appellant became the Chairman. Co-accused Haji Ayoub Afridi was its Director. P.W. Arshad Abbasi also worked as one of the Directors of the said Company and he was assigned the job of looking after its administration. The office of the Company was situated in the house of appellant Anwar Khattak on 10th Central Street, Defence Society, Phase-II, Karachi. According to the witness, Haji Ayoub Afridi, Mirza lqbal Baig, Shah Zameer, Haji Umer Khan, Noor Alam, Arif Balouch, Mansoor Alam Khan, Khursheed Jogezai, Arbab Zahid Harz, Farzand and many others used to visit the Company's office. Accused Mirza Iqbal Baig was also known as "Haji", "Haji lqbal" and "Bala Bhai". The witness stated that one day, when he was in his office, he was asked on intercom by accused Anwar Khattak to get a cheque of Rs.1,00,000 from one Akbar Shaikh who was also the Managing Director of the Company alongwith accused Anwar Khattak. When the witness went to the room of Akbar Shaikh he found Haji Ayoub Afridi, Zahid Hafeez, Farzand, Haji Khan and appellant Mirza Iqbal Baig also present in the room alongwith the said Akbar Shaikh. When the witness told Akbar Shaikh about the cheque, the latter took out a cheque book and asked the witness to fill in a cheque which the witness did. The witness remained there for about seven or eight minutes. In the presence of the witness accused Mirza Iqbal Baig asked Akbar Shaikh in Punjabi as to what had happened to 17-1/2 tons and as to what he was doing in that regard. Akbar Shaikh replied that he would ask Anwar Khattak to do something in this regard as he had influential friends. Haji Ayoub Afridi who was also present at that time while addressing Mirza Iqbal Baig told him not to worry as appellant Anwar Khattak was an influential man. The witness remained in service of Anwar Khattak till August, 1988. The witness further deposed that in the year 1983, 6.5 tons of Charas belonging to accused Anwar Khattak had been seized at Antwerp. The accused had also sent a consignment of Charas weighing about 8.5 tons to Mexico with the help of co-accused Mirza Iqbal Baig. According to the witness, another consignment of 2-1/2 tons of Charas belonging to accused Anwar Khattak had been held at Sofia. Another consignment of 11-1/2 tons of Charas of accused Anwar Khattak was also seized at Canada and many more consignments of the contraband belonging to the two appellants had been seized in different parts of the world. Admittedly this witness was a previous convict and had been awarded three months' R.I, and five lashes in connection with smuggling of 6.5 tons of Charas which had been seized at Antwerp.

13. Besides relying upon the evidence of the above witnesses the prosecution has also relied upon the evidence of P.W. Shamsul Huda which indicates that accused Anwar Khattak had paid a penalty of Rupees one lac in the adjudication proceedings held by the Collector of Customs against the accused. A copy of the adjudication order dated 12-1-1986 was produced by the witness in evidence as Exh.26/A which shows that in the proceedings held before Mr. Maqsood Ahmed, Collector of Customs (Preventive) against accused Ishaque, Allah Bux, Jumo Bikik, Anwar Khattak, Ibrahim Khan, Iqbal alias Bala, Noora Teddy, Essa Bikik, Babu, Haji Ayoub Akhtar and Nawaz Ali, a penalty of Rupees one lac was imposed on the accused which amount was deposited by accused Anwar Khattak.

14. The learned trial Court has found the appellants guilty of the offences with which they were respectively charged, as it found the above evidence reliable. Moreover, the evidence in regard to seizure of the contraband had gone unchallenged. As the accused did not examine themselves under section 340(2) of the Criminal Procedure Code, the same was held to be a factor on the basis of which adverse inference could be drawn against the accused. It was also found to be violative of Article 44 of the Qanun-e Shahadat which provides that "All accused persons, including an accomplice, shall be liable to cross-examination". The learned trial Court also concluded that the accused had remained absconders. However, in view of the observations made by the Supreme Court in Khan Mir v. Amal Sherin alias Kamal 1989 S C M R 1987, it was held that very little significance could be attached to their abscondence as proclamation under sections 87 and 88, Cr.P.C. had not been issued.

15. Mr. Azizullah Shaikh, learned counsel for appellant Iqbal Baig has argued that evidence in regard to conversation between the said appellant and Akbar Shaikh was inadmissible as hit by hearsay rule as Akbar Shaikh was not examined as a witness. According to the learned counsel, the statement said to have been made by lqbal Baig in presence of P.W. Arshad Naseer Abbasi has been erroneously treated as extra-judicial confession by the learned trial Court since, as was held in A I R 1939 PC 47, confession means admission of all facts in the charge. In any case, according to the learned counsel, the evidence of P.W. Arshad Naseer Abbasi required corroboration. Learned counsel has further argued that there was no evidence produced by the prosecution in regard to purchase of Charas by the accused nor any evidence was given showing the moving of Charas from Peshawar to Deh Movidan. There was also no evidence of any pre concert or collusion against the accused. The prosecution has also failed to establish any connection between "Iqbal Baig" and "Bala". In the end, it was contended that admittedly the distance between the port area and Deh Movidan was about forty miles and, therefore, in view of the observations made in Collector of Customs (Preventive) v. Muhammad Mahfooz P L D 1991 SC 630, the investigation in the case was without lawful authority.

16. Mr Syed Sami Ahmed, learned counsel for appellant Anwar Khattak, while assailing the said appellant's conviction by the learned trial Court, has argued that investigation in the case reveals dishonesty as investigation in the case remained pending for about four years and no witness was examined by the prosecution during this period. It was at a very late stage that statement of P.W. Arshad Naseer Abbasi was recorded by the Investigating Officer. P.W. Arshad Naseer Abbasi was admittedly a self-confessed criminal, therefore, according to the learned counsel, no implicit faith could be placed on his evidence. In the end, it was argued that the entire trial of accused Anwar Khattak was vitiated as no notice under section 171 of Customs Act, 1969 was served upon the appellant. It was lastly argued that judgment in the case had been orally pronounced before it was written and, therefore, the same was not valid under the law.

17. I find no force in any of the above contentions. The names of the appellants transpire in the F.I.R. which was lodged by complainant P.W. Abdul Naeem Khan on 25-4-1985. The case of the prosecution is fully supported by P.W. Abdul Naeem Khan, the Seizing Officer who conducted the raid at Deh Movidan and recovered the Charas. His evidence is fully corroborated by P.Ws. Masroor Burney, Tanseer Aftab and Khalid Mehmood, the Customs Officers who had accompanied him at the time of the raid. From the evidence of these witnesses, it has been established that on the basis of the spy information received by the Customs Officers, both the appellants in collusion with co-accused Essa Bikik and Babu had purchased Charas of foreign origin at Peshawar with the intention of smuggling it abroad. The samples taken from the contraband and sent to the Chemical Examiner revealed that the same were of Charas. The evidence has gone unchallenged by the accused and the same has, therefore, rightly been relied upon by the learned trial Court. The evidence of the above witnesses is fully corroborated by that of P.W. Arshad Naseer Abbasi which leaves no doubt that both the appellants had direct interest in the said consignment of Charas. Learned counsel for the appellants have argued that the evidence of P.W. Arshad Naseer Abbasi in this regard is inadmissible as hearsay evidence but reference may be made to Articles 70 and 71 of Qanun-e-Shahadat. Article 70 provides that "All facts, except the contents of documents, may be proved by oral evidence". Article 71 further provides that "Oral evidence must, in all cases whatever be direct, that is to say ... if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it". The evidence in regard to conversation between appellant lqbal Baig and Akbar Shaikh which took place in presence of P.W. Arshad Naseer Abbasi is, therefore, admissible under Article 71 of Qanun-e-Shahadat. The evidence of the said witness further establishes that "Iqbal Baig" and "Bala" is one and the same person. No doubt, P.W. Arshad Naseer Abbasi was Court martialled and convicted in connection with a consignment of Charas seized at Antwerp, but the mere fact that the witness was an ex-convict does not render his testimony completely unreliable. The witness has no previous enmity with any of the appellants and nothing has come out from the cross-examination of the witness to make his credibility doubtful. Learned counsel for the appellants have further argued that the evidence in regard to spy information said to have been received by the Customs Officers was not corroborated by any other witness but the recovery of the Charas forming the res gestae lends further corroboration to the said evidence of spy information. The above evidence is further corroborated by the evidence of abscondence of the appellants. In Allah Dad v. The State P L D 1978 SC 1, the Station House Officer stating to have remained in continuous search but failing to trace out accused and accused surrendering only after issuance of proclamation was held to be sufficient to establish abscondence of the accused. However, the probative value of such evidence was held to depend upon the facts and circumstances of each case, yet universally admitted as evidence of guilt of the accused. In the present case, although there is clear evidence of the process-server, Khalid Mehmood, who had received non-bailable warrants for execution against ten absconding accused in this case including the two appellants that the accused were untraceable and their whereabouts were unascertainable, but nevertheless as no formal declaration under sections 87 and 88 of the Code of Criminal Procedure had been issued by the Court, this evidence was ruled out of consideration by the learned trial Court. However, I find that the case decided by the Supreme Court upon which the learned trial Court has placed reliance, reference to which has earlier been made in this judgment, is clearly distinguishable. In this case, there is nothing to indicate that the process-server had been examined. Neither there was any indication of the accused being untraceable for a long period. Reliance was placed in this case by the Supreme Court on its two earlier decisions, in Liaquat Ali v. Masal Khan 1980 S C M R 208 and Fazal Muhammad v. Muzaffar Hussain 1981 S C M R

959. In the first case, the period of abscondence being about three months, the same was held as not sufficient to furnish corroboration of evidence of a single prosecution witness in the case. The facts of the second case relied upon by the Supreme Court are also more or less similar as in this case the accused were not shown to have been declared as proclaimed offenders. In the present case, admittedly the accused remained fugitives from the law for a considerable period. The mere fact that a formal declaration was not issued by the learned trial Court under section 87 or 88 of the Criminal Procedure Code, therefore, cannot render the evidence regarding their absconsion unworthy of credit.

18. The fact that the fine of Rupees one lac imposed against the appellants and their co-accused was deposited by accused Anwar Khattak further establishes his connection with the said contraband. Mr. Syed Sami Ahmed has argued that adjudication proceedings before the Collector of Customs are independent proceedings and, therefore, anything done by the accused in relation to the said proceedings cannot be taken into consideration in the present case. It was further argued by the learned counsel that the adjudication proceedings have also been set aside in appeal. True, the adjudication proceedings are independent proceedings and the same were set aside in appeal, but the fact that appellant Anwar Khattak paid the fine clearly establishes his link with the alleged offence. If the appellant had no interest in the contraband the payment of fine by him would have been out of question. The learned trial Court, therefore, in my opinion, has rightly considered this fact as an important factor for connecting the said accused with the crime. Mr. Sami Ahmed has relied upon the case of Adam v. Collector of Customs P L D 1969 SC 446 and The State v. The Special Judge (Customs) 1990 P Cr. L J 53 in support of his said contention, but for the reasons just stated by me the two cases can hardly render assistance in this regard. The argument is, therefore, repelled.

19. Turning now to the legal issue raised by Mr. Azizullah Shaikh that: the investigation carried out by the Customs Authorities was without lawful authority, reliance in this regard has been placed by the learned counsel on the judgment of the Supreme Court in Collector of Customs (Preventive) v. Muhammad Mahfooz P L D 1991 SC

630. In this case, it was held that jurisdiction of the Customs Authorities extended only to Port area and not to the entire city of Karachi. Consequently, seizure of the goods in question which was from an area which was not included in the jurisdiction of the Customs authorities, was held to be without lawful authority. This case is, however, not attracted to the facts of the case in hand because in this case the seizure was made and the investigation was thereafter carried out by the Officers of the Directorate of Intelligence Customs. Under S.R.O. No.388(1)/82, dated 22-4-1982 the powers of the Directorate extend throughout Pakistan, including Karachi. Mr. Naimur Rehman, learned Standing Counsel has invited my attention to the map of Deh Movidan which clearly indicates that the same is situated within the limits of Karachi. Since, as just pointed out, the jurisdiction of the Directorate extends to the limits of Karachi including Deh Movidan, the contention of Mr. Azizullah Shaikh is completely without force.

20. The next contention of the learned counsel that protracted investigation in the case indicated dishonesty is also devoid of substance Appellant Iqbal Baig was arrested on 27-5-1990 and the name of P.W. Arshad Naseer Abbasi transpired during the investigation. On 27-5-1990 appellant Iqbal Baig was interrogated by the Investigating Officer and on 9-6-1990 and 22-6-1990 the statement of P.W. Arshad Naseer Abbasi was recorded. The mere fact that investigation was protracted cannot reflect adversely upon the investigation because the same would depend upon the circumstances of each case. In the present case, the fact that the main accused could not be immediately traced, furnishes sufficient justification for the prosecution for the protracted investigation. The argument, therefore, has no force.

21. Mr. Syed Sami Ahmed has argued that the entire trial against appellant Anwar Khattak has been vitiated as no notice as required by section 171 of the Customs Act was served upon the said appellant. Section 171 of the Customs Act provides as follows:-- "

171. When seizure or arrest is made, reason in writing to be given.-- When anything is seized, or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as may, be, inform in writing the person so arrested or the person from whose possession the things are seized, of the grounds of such seizure or arrest." Although many cases have been cited by Mr. Sami Ahmed on the point but reference may be made in this regard to the case of Azizullah v. The State P L D 1981 Kar.

250. In this case, it was held that provisions as to search and seizure and arrest as contained in section 171 of the Customs Act are mandatory and in case of failure to comply with such provisions the arrest of the accused or seizure of goods would be rendered illegal. Reliance was placed in this case on Collector of Customs v. S.M. Yousuf 1968 S C M R

603. In this case, while referring to the provisions of section 172(A) of the repealed Sea Customs Act, which were similar in character, Anwarul Haq, J. (as he then was) speaking for the Supreme Court observed as follows:-- "These are stringent requirements prescribed by law in order to ensure that the enormous power of search without warrant given to Customs Officer is exercised honestly and judiciously. By insisting that the grounds for his belief shall be recorded beforehand by the Officer concerned the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party. To put it differently, it seems to me that this is a safeguard prescribed by the Legislature to ensure that the rights of the citizen in respect of private property are interfered with only for genuine reasons related to the prevention of smuggling and evasion of Customs duty etc. This safeguard can be effective only if the procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case." However, in Hizbullah v. The State P L D 1984 Quetta 1 it was held by Abdul Qadeer Chaudhary, Actg. C.J. (as he then was) while speaking on behalf of the Division Bench that non-compliance with the provisions of section 171 of the Customs Act would not vitiate trial of an offender or affect the jurisdiction of the Court. It may be pointed out that the question, whether compliance with the provisions of section 171 of the Customs Act was necessary or not, would depend upon the circumstances of each case. It is pertinent to point out that no conviction can be set aside on the ground of any defect in the investigation or trial of the accused unless such defect has caused failure of justice. In the present case, accused Anwar Khattak was already in custody of the Narcotics Control Board by whom he had been arrested. The accused was an absconder and he was directly produced by the Central Jail Authorities and handed over to the Directorate of Customs who produced him before the Court. The accused was already aware of the charges as F.I.R. had already been lodged where the name of the accused transpired. Consequently, in the present case, the failure of the Customs Authorities to serve notice upon accused Anwar Khattak under section 171 of the Customs Act cannot be said to have resulted in any prejudice to the accused. The procedure required for trial of the accused was correctly followed by the learned trial Court. The investigation was also conducted in accordance with the procedure laid down by the Code of Criminal Procedure. Therefore, in my opinion, the cases cited by Mr. Sami Ahmed are distinguishable.

22. Learned trial Judge has drawn adverse conclusions against the accused on account of their failure to examine themselves under section 340(2), Cr.P.C. In this regard, it may be pointed out that the view taken by the learned Judge is not based on the correct interpretation of the provisions of section 340(2), Cr.P.C. or Qanun-e-Shahadat. In Mst. Ameer Khatun v. Faiz Ahmed P L D 1991 SC 787 it was observed by the Supreme Court that:

"Therefore, the interpretation of section 340(2), Cr.P.C. has to be that it has no compulsive effect on the accused. All that the Court can do is to ask him whether he will like to make a statement on oath. It is his option and without prejudice to his case to make a statement or not to make a statement on oath. No adverse inference can be drawn if he does not opt to make a statement." It would thus appear from the above observations that the view taken by the learned trial Court is not correct. However, it is only one of the factors considered by the learned trial Court while awarding conviction to the accused, there being many more, reference to which has already been made in this judgment. Consequently, this insignificant factor has hardly any bearing on the result of the case.

23. It was lastly contended by Mr. Syed Sami Ahmed that the learned trial Court had orally announced the judgment in the case which was an obvious error committed by it and the same has rendered the judgment as nullity in the eyes of law. Mr. Sami Ahmed has referred in this connection to a certified copy of an application dated 13-7-1991 presented on behalf of accused Anwar Khattak. It was pointed out in this application that a copy of the judgment delivered by the Court on the said date had not been received by the said accused. The endorsement thereafter made on the copy shows that a copy of the judgment was received on behalf of the accused on 20-7-1991. However, nothing can be spelt out from the said application to indicate that the judgment had been pronounced orally on 13-7-1991 and the same had not been signed on the said date. As is evident from the judgment itself, it appears to have been both signed and announced on 13-7-1991. The diary-sheet of the Court of the same date clearly indicates that the judgment had been announced in presence of the present appellants and co-accused Ishaque on the said date. Consequently, I find no force in the last argument of Mr. Sami Ahmed as well. The mere fact that an application was filed on behalf of accused Anwar Khattak requesting for a copy of the judgment cannot lead to an inference that the judgment had not been signed by the learned trial Judge on the said date. The judgment itself clearly shows otherwise. The argument, therefore, is devoid of force.

24. In the result, I find no force in the two appeals and the same are, therefore, dismissed by this judgment and the conviction and the sentence awarded to the appellants are, therefore, maintained. N.H.Q./A-1384/K Appeals dismissed.