1991 PLP 2576 (MLD)

2. On 18-12-1989 at 11 p.m. appellant Santas Maria Teresa who was leaving for Amsterdam by KLM Flight No.842 presented her baggage before Ather Meraj, Preventive Officer, Pakistan Customs at the Customs Counter, Terminal -III, Karachi, Airport for checking. At that time co-accused Sinan Sharif was also with her. When asked to declare whether she was carrying any contraband goods with her, she replied in negative. Being dissatisfied with this reply Athar Meraj P.O., searched the baggage and recovered 16 polythene packets containing powder of heroin weighing 2250 grams concealed in a brief-case and a suit-case. Requisite samples were drawn and such inventory was prepared in presence of mashirs Muhammad Rafique and Feroz Gul. The appellant was then taken into custody and was served with a notice under section 171 of the Customs Act, 1969. Since no satisfactory evidence was available against co-accused Sinan Sharif he was released on a bond, but his travel documents were seized. On 19-12-1989, at 12-30 a.m. the report of this incident was lodged by Athar Meraj P.O. During the course of investigation it transpired that the appellant had stayed with co-accused Sinan Sharif as his wife in a hotel and there was a link between the two. Consequently, co-accused Sinan Sharif was also arrested while he was checking out from Hotel International Plaza. The samples which were sent to Deputy Assistant Chemical Examiner, Karachi, were found to be of heroin of commercial grade. After usual investigation the appellant and co-accused Sinan Sharif were sent up to stand trial for the offence under section 156(1)(8) of the Customs Act, 1969. Co-accused Sinan Sharif absconded after he was released on bail by this Court.

3. At the trial the appellant pleaded not guilty and wanted to be tried. The prosecution examined Athar Meraj P.O. (P.W.1), Zaheeruddin SPO (P.W.2), Muhammad Rafique (P.W.3), Feroz Gul (P.W.4), Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner (P.W.5), Amjad Ali Shah P.O. (P.W.6) and Ghulam Ahmad Siddiqui I.O. (P.W.7). Mrs. Helen Mian (C.W.1) who acted as interpreter was examined as a Court witness.

4. In her statement recorded under section 342, Cr.P.C. the appellant has disputed the case of the prosecution. She has, however, admitted her association with absconding accused Sinan Sharif by stating that he had met her at Karachi. The defence of the appellant in her own words is as follows:-- "I am innocent. The case against me is false. I am a parapsychologist. I have got my office in France. I produce my professional card (Exh.IZ/A). In November 1989, I met co-accused Sinai Sharif in Portugal. I came to Pakistan and after 3/4 days co-accused Sinan Sharif had also come to Pakistan. I had come to Pakistan in connection with my profession. I have got three small children who are now-a-days in France."

5. The appellant did not step into the witness-box. She also led no defence.

6. On the assessment of evidence available on record, the learned Special Judge found the appellant guilty and convicted her accordingly. It is in these circumstances that the present appeal has been filed.

7. I have heard M/s. Muhammad Ishaque Shams and Zia Ahmad Awan, learned counsel for the appellant and Mr. Fariduddin, learned counsel for the State. The latter has supported the impugned judgment.

8. The learned counsel who appeared before me in this appeal on behalf of appellant referred to several points but eventually confined the arguments in the main to the following contentions: (i) That no notice under section 171 of the Customs Act, 1969, was served upon the appellant in the language which she understands. (ii) That the solitary testimony of Athar Meraj P.O. (P.W.1), not supported by both the mashirs was not sufficient to adjudge the appellant guilty. (iii) That the brief-case and the suit-case did not belong to the appellant and she could not explain this fact to Athar Meraj P.O., who was misled by absconding accused Sinan Sharif, who acted as interpreter.

9. On the first question whether the notice under section 171 of the Customs Act, 1969, was proper, it is urged on behalf of the appellant that it was necessary to serve the notice in the language which the appellant understands. The notice is available on record (Exh.4/E) and it bears the signature of the appellant in English in token of having received the same. The statement of appellant recorded by the learned Special Judge under section 342, Cr.P.C. also bears her English. The vakalatnama filed by Mr. Munawar Malik Advocate on behalf of appellant in the trial Court also bears her signature in English. Likewise the vakalatnamas filed by the present counsel of the appellant bear her signatures in English. It, therefore, does not require much of calculation how to multiply 2 by

2. It may be added that the appellant has simply denied to have received this notice. It was not her case that she did not understand the contents of this notice.

10. A notice under section 171 of the Customs Act, 1969, is intended to give sufficient information to the person upon whom it is served. Therefore, if the substance of the allegation is clearly disclosed and the person is informed of the charges and nature of evidence, there is proper compliance. There is, therefore, an air of utter unreality about this argument.

11. Coming now to the question whether the uncorroborated testimony of Athar Meraj P.O. (P.W.1), which was not supported by two mashirs, namely, Muhammad Rafique (P.W.3), and Feroz Gul (P.W.4) was sufficient to record conviction against the appellant. 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. Indeed the rule of law has been expressed under section 134 of the Evidence Act, 1872 (since repealed) corresponding to Article 17(2)(b) of the Qanun-e-Shahadat, 1984. This question was examined by the Supreme Court in the case of Malik Aman v. The State reported in 1986 SCMR 17, wherein it was held:-- "There is no law that deposition of one witness should not be believed and accepted nor it was in contravention of any principle:'

12. Much capital was sought to be made out from the fact that both the mashirs, namely, Muhammad Rafique (P.W.3) and Feroz Gul (P.W.4) have turned hostile. Both these witnesses are low-paid employees of Civil Aviation Authority and were obviously purchased at the initial stage of the case. They had filed affidavits (Exhs. 6/ A and 7/A), thereby exonerating the appellant. The explanation furnished by them in this behalf has really exposed them.

13. The evidence of Athar Meraj P.O. (P.W.1) is consistent and the learned counsel for the appellant was not able to pick holes in his testimony. The learned Special Judge who had the occasion to watch his demeanour found him reliable and I see no reason to differ from the assessment made by him. After all he had absolutely no reason to rope the appellant falsely in a case of this nature as she was a complete stranger to him.

14. The only other question that falls for determination is whether the appellant had become victim of unfortunate situation as the real culprit, viz. Sinan Sharif had got her trapped by misinterpreting the facts. I have gone through the evidence available on record carefully. Nothing substantial has been pointed out to me on which I may be persuaded to take a different view. This aspect of the case was also considered by the learned Special Judge who answered it in the following words:-- "The Seizing Officer in his deposition has clearly stated that present accused appeared before him and presented her baggage for examination. From the evidence of Seizing Officer, it is absolutely clear that said heroin was secured from her baggage. There is nothing in his evidence on this point which may give rise to any suspicion. It is simply, straightforward, and positive."

15. Number of judgments have been cited on behalf of the appellant to persuade this Court to bold that the case against the, appellant is not free from doubt. I do not think that any useful purpose will be served by embarking on a detailed examination of the authorities, because it is a question of fact, in each particular case, whether the evidence produced by the prosecution can, or cannot be considered to be sufficient to establish the guilt of the accused.

16. It may further be added that the appellant did not step into the witness: to testify in disproof of the charge. An adverse inference was, therefore, rightly drawn against her. The case of Javed and another v. The State reported in 1991 PCr.LJ 843 is relevant on this point.

17. In the last a feeble attempt has been made on behalf of the appellant praying for leniency. Sympathy for an accused in a case of this nature means lack of sympathy for millions of persons who are heroin addict. I consider that she has been fortunate not to have been provided maximum dose of punishment.

18. In the result I see no merits in this appeal which is accordingly dismissed. M.BA./S-770/K Appeal dismissed.