1994 P Cr (PLP)

Mir Nawaz Khan Marwat for Applicant. Farukh Zia Shaikh for the State. The applicant is facing trial for an offence under section 2(m) of the Customs Act, 1969 punishable under section 156(1)(8) read with section 178 of the said Act pending trial before the learned Special Judge, Customs and Taxation, Karachi. The prosecution case is that on the night falling between 2/3 of March, 1993 when the Preventive Officer, Muhammad Javed Iqbal was on duty at the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi and was attending to the baggage examination duties of the outgoing passengers of the Singapore Airline's Flight No.SQ-417 for Singapore he intercepted a lady passenger namely Archuleta Tanya Pauline who has having a U.S. Passport and was leaving for U.S. via Singapore by the said Flight. After asking the said lady to declare what she was carrying in her baggage or on her person to which she replied in negative, thereafter her baggage was checked. From her baggage a small hand bag was recovered in the presence of witnesses Asghar Ali and Sibtain Hussain Shah. As her suit case appeared to be heavy, the said Walls were cut open, it was found that it contained plastic packs of different sizes which contained heroin powder. The total weight was 1.6 k.g. The said lady passenger was arrested -and the contraband articles were seized at the airport under Mashirnama. On the interrogation the lady accused disclosed that the said heroin powder was arranged and given to her by applicant Noor Faiz Muhammad and she further stated that the said accused was also scheduled to fly with her by the same flight and they had reached the airport together. As such efforts were made to trace out the said accused and on the pointation of the lady accused, the present applicant was intercepted outside the Departure Hall. The applicant had his travelling docur,;ents with him. He also had a hand bag. He was accordingly arrested and notice under section 179 of the Customs Act was also given to both the accused. Subsequently Preventive Officer Muhammad Javed lodged the F.I.R. I have heard Mr. M:r Nawaz Khan Marwat, learned counsel for the applicant and Mr. Farukh Zia Shaikh, Advocate for the State, who has strongly opposd this bail application. Mr. Marwat has argued that the case against the applicant is based on the statement of the lady co-accused and furthermore the applicant was not arrested from inside the Departure Hall, which indicates that he was not leaving by the same flight. He has further submitted that merely because he was arrested on the pointation of the lady accused it does not smell out that the applicant was privy either in the smuggling of heroin or even in attempt to smuggle the same. He submits that apart from the statement of the co-accused, the prosecution has no other evidence to connect the applicant with the commission of this offence. In the alternative he has submitted that for the sake of arguments if it is believed that the applicant was arrested on the pointation of the lady co-accused, even then the offence would not be an attempt to smuggle as it would be deemed to be at a "preparation stage". In this regard the learned counsel has placed reliance on several cases reported and unreported. The same are P L D 1986 SC 192, 1977 S C M R 292, 1991 P Cr. L J 951 and unreported Criminal Bail Application No.57 of 1990. These cases have been cited in support of the submissions made by the learned counsel. On the other hand Mr. Farukh Zia Shaikh, Advocate for the State has argued that it is a clear act of attempt to smuggle heroin out of Pakistan and there are circumstances to clearly indicate that both the accused were in league with each other. There are series of acts which clearly suggest that the accused persons had not only intended to smuggle heroin out of Pakistan but they had in fact tried to carry out their intention when they were intercepted by the Customs Authorities. In this regard he has pointed out that the lady accused as well as the applicant were both American National. It was accused/ applicant who arranged for the visa from Consulate-General of Pakistan Los-Angeles and the date of visas are the same. It was further pointed out that both the accused alongwith another lady namely Tanya Pauline all three of them had checked in Room No.203, Hotel Royal City, which the Investigation Officer had found out after scrutiny of the record of the said Hotel and also collected the evidence in that regard. Further investigation was made from Singapore Airlines and evidence was collected to show that airline's tickets of the two ladies were confirmed. They had also checked out from Hotel Royal City together on the date i.e. 2-3-1993 al 6-00 p.m. It is the case of the prosecution that accused/applicant alongwith the ladies had come to the Airport together where he stayed outside to await the clearance of the ladies and the applicant was also scheduled to leave by the same flight as his ticket was also secured from his possession. It is only when the lady accused persons were arrested that led to the arrest of the present applicant. It will thus appear that the lady accused and applicant were known to each other in advance, they had come to Pakistan together, they had stayed in the hotel together, they departed from the hotel together and they were also scheduled to leave by the same flight of Singapore Airlines. It may also be pointed out that it is not merely the implication of the applicant by the lady accused, but in fact the statement made by the lady accused led to the arrest of the present applicant and discovery of Airlines ticket in respect of which the lady accused had informed the Investigating Officer that the applicant had come alongwith them at the Airport and he was also scheduled to leave by the same flight. The chain of circumstances clearly indicates that the accused had acted in a joint manner, in that they intended to smuggle heroin out of Pakistan and it appears that prepration was made for carrying out that intention inasmuch as the heroin powder was concealed in the inner cavity of the four walls of the suit-case carried by the lady accused. The manner in which the applicant alongwith lady accused and another lady namely Tanya had been travelling together and leaving together clearly indicates that it was not a co incident that they were leaving by the same flight. Circumstances clearly indicate that the present applicant had the knowledge that the lady accused was carrying heroin powder hidden in the four walls of her suit-case. It may be noted that merely because the applicant was standing outside the Departure Hall does not necessarily mean that he was not accompanying the lady accused. As already mentioned that the chain of circumstances indicates that in fact the applicant was accompanying the said lady as such the provisions of section 178 of the Customs Act are attracted. The important circumstance in this regard being that the lady accused and the present applicant were living together in Room No.203 of Hotel Royal City. They had left for the Airport together with bag and baggage. The case-law relied upon by the learned counsel as mentioned above are not attracted to the facts of this case inasmuch as in those cases there was no chain of events to indicate that the applicants and the other accused had acted in association of each other. In all these cases the only piece of evidence against the accused was a disclosure of their names by the main accused who had been arrested. As already mentioned in the present case the position is quite different, the prosecution is in possession of several pieces of evidence to A show that the lady accused and the present applicant had been in close association and working together and, therefore, the cases relied upon by the learned counsel for the applicant are not attracted to the facts of this case. It may further be pointed out that this is not the only a case in which the present applicant has been involved but on the same day, by the same flight, another lady accused namely Draway Desiace Marie was also arrested and from her suit-case also in the same manner heroin powder was recovered and she had also disclosed the same facts to the Investigating Officer which were to the effect that articles were provided by the present applicant who had arrived at Airport together with her and on her pointation also the present applicant was arrested. As such the present applicant has been detained in two separate cases. In the above circumstances I am satisfied that the applicant is vicariously liable under section 178 of the Customs Act, 1969 and as such I find no merit in this application and the same is accordingly dismissed. N.H.Q./N-516/K Bail refused.