1984 P Cr (PLP)

In circumstances I may kindly be acquitted as I am innocent." Co‑accused Naseem Shah (Exh. 12/A). I am innocent. I am doing lawful business of garments in Karachi and at Dubai. There is no admissible evidence against me. I do not own any white Mazda Car. I did not go to Airport on the relevant date. My wife was admitted as an abortion case night previous to be alleged incident. Medical Certificate to this effect was submitted with the bail application to trial Court, which is on the file. Not a single person has deposed against me in his deposition recorded under section 161, Criminal Procedure Code. F.I.R. (which is the statement of the Seizing Officer under the law) and Mashirnama also do not reveal my presence at the Airport. With Mazda car and the person who allegedly opened the dickey of the car are non‑existant and imaginery. The alleged incident occurred on 27th September, 1981. I was arrested on 29th September, 1981 and bail application was heard on 2nd October, 1981 and bail order was passed by Hon'ble Court on 7th October. 1981. During this entire period no evidence was available with the prosecution, except the alleged statement of the appellant. Bail order on the record may kindly be seen to this effect. "That on 14th October, 1981, the appellate Court asked specific question from the prosecution and Investigating Officer as well, whether any evidence other than disclosure by the appellant was available and they replied in negative. Bail was granted as disclosure by the appellant is no evidence. Statement under section 161 were supplied on 21st October, 1981, several days after the submission of challan and after deliberation, consultation and concoction; which establishes conclusively that story of white Mazda car is an afterthought without any reality. In circum?stances it is prayed that I may kindly be acquitted as I am innocent. I have committed no offence and there is no evidence admissible against me." None of the accused adduced any evidence in his defence. Appellant Shahid Mahmood however, simply produced photostats of two passengers manifests (Exh.11/B and Ex.11/C). The prosecution in support of their case examined P.W.1 Khursheed Qamar S.P.O. (Exh.3), P.W.2 Fazal Khan Deputy Airflot (Exh.4) P.W.3 Muhammad Iftikhar (Exh.5), P.W.4 Kazi Massarat Husain Inspector (Exh.8) P.W.5 Junaid Bin Soz, Pasenger Service Agent (Exh.9) and P.W.6 Muhammad Ayyub P.O. (Exh.10). The learned trial Court taking into consideration the evidence adduced before it, while acquitting the co‑accused Nasim Hassan Shah convicted the appellant above named as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under: ‑‑ (a) that in the F.I.R. the complainant i.e. Seizing Officer did not mention anything about Mazda Car bringing the suitcase in question and handing over the same to the appellant and thereafter the appellant brought the suitcase to the counter of Gulf Airways, the learned counsel submitted this shows improvement made by the prosecution in its story, in order to save the co‑accused Nasim Hasan Shah. (b) That the 2 Mashirs of the alleged seizure of the suitcase in question are P.W. Junaid and P.W. Fazal. According to P.W. Junaid the appellant had come to the briefing counter, which only one attach/ hand bag and had stated that he had no other luggage and was being briefed, when the Seizing Officer P.W.1 Khurshid Qamar interrogated him and showed him a suitcase which was lying in front of first class counter and enquired from him whether it belonged to him, to which the appellant replied in the negative. This P.W. Junaid also denied recoveries of the keys of the said suitcase from the appellant as alleged in Mashirnama and explained that he had not read the Mashirnama before signing and further stated that the said suitcase was not opened in his presence. P.W. Fazal the other Mashir of the alleged seizure is admittedly a custom man, which is evident from the fact, that in his cross‑examination he admitted, that he had acted as a Mashir of the custom in 5 or 6 cases. In addition to this P.W. was also challaned for smuggling, although ultimately he was acquitted on account of liniency shown by the Customs Department and as such he is under the obligation of the Customs department and consequently no reliance can be placed on his statement. Similarly the statement of the seizing officer who did not mention the fact that co‑Accused came in Mazda Car and delivered the suitcase in question to the appellant in the F.I.R., makes his statement suspicious and cannot be relied upon without independent corroboration. In view of these submissions the learned Advocate submitted, that by the statement of P.W. Junaid, who did not support the prosecution case and was declared hostile, the prosecution case against the appellant has become doubtful, as no reliance can be placed on the statements of P.W. Fazal Khan and seizing officer Khurshid Qamar, without independent corroboration as already stated by him. (c) The learned counsel further submitted, that on this very flight co‑accused Nasim Hasan Shah was also booked for Dubai, which is evident from Exh. 10‑A and is fully supported by his ticket which has been produced by Investigating Officer P.W. Muhammad Ayoob before the learned trial Court and as such statement of the appellant that he had nothing to do with the said suitcase cannot be ignored, in the face of the statement of P. W. Junaid and the admitted fact that co‑accused Nasim Hasan Shah was also booked on the same flight for Dubai. In view of the above submissions the learned counsel for the appellant submitted, that prosecution has failed to prove its case beyond reasonable doubt. The learned Advocate appearing for the State on the other hand submitted, that prosecution by the statement of P.W. Fazal Khan and Seizing Officer Khurshid Qamar has established beyond doubt that the suit case in question was seized after the same was presented by him at the briefing counter and as such no reliance can be placed on the statement of P.W. Junaid, who has been won over by the appellant. The learned Advocate for the State further submitted, that mere fact that P.W. Fazal had acted as a Mashir for the customs in 5 or 6 cases by itself does not make his evidence unreliable. I have carefully considered the above submissions made by the learned Advocate before me and have gone through the R & P of the learned trial Court as well as the impugned judgment. I have gone through the statement of P.W. Junaid, P.W. Fazal Khan and Seizing Officer Khurshid Qamar. In my opinion no reliance can be placed on the statements of P.W. Fazal and Seizing Officer Khurshid Qamar, without independent corroboration, due to the reasons, namely that P.W. Fazal Khan is a stock Mashir of the customs, as admitted by him and secondly as Seizing Officer Khurshid Qamar did not mention the fact of Mazda Car coming outside departure loan and the person handing over the suitcase to the appellant, which appellant took to the counter Such corroboration in my opinion is not at all available and in the face of the statement of P.W. Junaid, which I find straightforward and convincing in my opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant above named. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal. S.G.D.??????????????????????????????????????????????? ???????????????????????????????????????????????? Appeal allowed