P L D 1988 Federal Shariat Court 29 (PLP)

ABDUR REHMAN KHAN KAIF, J.‑‑This criminal appeal by Zahiruddin son of Shabbir‑ud‑Din, aged about 38 years, r/o Mohanpura, Rawalpindi, is directed against the judgment of the learned Sessions Judge, Rawalpindi, dated 17‑11‑1987, whereby having been found guilty of an offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) for keeping in possession heroin weighing 550 grams he was convicted thereunder. On conviction under Article 4 of the said Order, he was sentenced to ten years' R.I., whipping numbering twenty stripes and a fine of rupees ten thousand. In default of payment of fine, he was to undergo further R.I. for two years. The benefit of Section 382‑B, Cr.P.C. was, however, extended to him.

2. The facts of the case briefly stated are that on 14‑4‑1985 at about 3.00 p. m. a suit‑case alongwith some documents was produced by the appellant accompanied by one Buniad Ali Shah in the Custom Hall (Export Section) at Islamabad Airport before Mr. Inamul Haq, Inspector Customs, for inspection and booking etc. The suit‑case was opened in the presence of the appellant and also in the presence of the witnesses Riaz Butt etc. The suit‑case was apparently containing frames of glasses and bed‑sheets, but the inspecting officer suspected some foul play and accordingly snuffing dogs were called and on their indication the inner wall of the suit‑case was removed resulting in the recovery of 14 packets of polythene containing heroin weighing 550 grams. The appellant and his companion Buniad Ali Shah were arrested. Samples were taken from each of the packet and were made into sealed parcels for the analysis of the Chemical Examiner and the sealed parcels were handed over to the Superintendent Customs, Islamabad Airport. The remaining heroin was also kept in safe custody. A complaint was drafted by Muhammad Inamul Haq, Inspector Customs, wherein it was mentioned that the key of the suit‑case was produced before him by the appellant. The complaint (Ex.P.E.) was sent to Police Station Civil Lines, Rawalpindi, through Shahnawaz, Inspector Customs at about 5.00 p.m., whereupon on the same day at about 5.30 p. m. a formal case was registered in the police station vide FIR (Ex. P.H.) Since the Customs authorities were not competent to investigate the matter under Article 4 of the said order, the matter was handed over to the local police for proper investigation after some preliminary investigation. Muhammad Taj, ASI (P.W.3) investigated the case on 20‑4‑1985. He recorded the statements of witnesses under section 161, Cr. P. C. 7 and also took into possession the relevant papers vide recovery memo. Ex. P.C. He also inspected the spot and prepared the site plan, (Ex. P.G.) and after the completion of the investigation, he submitted a complete challan for trial against the appellant through S.H.O. of the police station.

3. At the trial the prosecution examined three witnesses, namely, Inamul Haq, Inspector Customs (P.W.1), Muhammad Riaz, son of Nawab Khan Customs Clearing Agent (P.W.2) and Muhammad Taj, A.S.I.(P.W.3).

4. Inamul Haq, Inspector Customs (P.W.1) deposed that on 14‑4‑1985 while he was present at A.F.U. Islamabad Airport, the appellant alongwith Buniad Ali Shah produced the suit‑case alongwith the relevant papers. According to him, the lock of the suit‑case was opened by the appellant and apparently there were frames of glasses and bed‑sheets but on the basis of suspicion the inner walls of the suit‑case were broken as a result of which 14 packets of heroin were recovered. The heroin so recovered was weighed and was found 550 grams. Samples from the heroin so recovered were taken for analysis and report of the Chemical Examiner and that the remaining heroin was also kept in safe custody. The heroin and the relevant documents were taken into possession vide memo. Ex. P.B., and a complaint was drafted for the registration of the case which was sent to Police Station. Civil Lines, Rawalpindi. In his cross‑examination he deposed that the packets recovered from the suit‑case were separately weighed and that in the complaint he had mentioned taking into possession of key of the suit‑case and preparation of its recovery memo. He also admitted that at the time of the arrest of the accused some other persons were present whose names were Riaz Butt and Ikram. He denied the fact that the appellant and his companion Buniad Ali Shah had told him that the suit‑case belonged to one Mr. Mustafa Kaudoro. He also denied the allegation that Mustafa Kaudoro had handed over the suit‑case to Shipping Bill Clerk himself and had deputed one Jamshed Custom Clearing Agent for the clearance and that the key was also handed over to him.

5. Muhammad Riaz (P.W.2) has also faithfully supported the version of Inamul Haq, Inspector and the contents of the complaint. He has stated that the appellant had given the key to Inamul Haq, Inspector, for opening the suit‑case. He deposed that when the suit‑case was opened some frames of glasses and bed‑sheets were found lying in it, but on suspicion the Custom Inspector called the dogs and on their indication, broke the suit‑case with the result that 14 packets containing heroin weighing 550 grams were recovered. He deposed that all the articles were taken into possession vide memo Ex. PB while the key P.2 was taken into possession vide memo Ex. P.C., which was attested by him. He further deposed that as a result of personal search of the appellant, foreign currency, Pak currency, national identity card etc. were found which were taken into possession vide memo. Ex. P.D, duly attested by him. In his cross‑examination he admitted that one Jamshed, Custom Clearing Agent was also present and that the suit‑case was not taken to the room of A. C. of Airport. He, however, stated that the packets were put on the scale together and weighed at one time. In reply to another question, he stated that he was definite that the key was given by the appellant and was unable to recollect as to whether the key was given by Jamshed or not. The third witness Muhammad Taj, A. S.I. as already stated has investigated the case.

6. Since the presence of one Jamshed Iqbal was admitted in his statement at the relevant time by Muhammad Riaz (P.W.2), he was summoned as a Court witness and was examined in the case on 16‑5‑1987 at a late stage after the conclusion of the trial. This witness has mainly deposed that at the relevant time he had asked Buniad Ali Shah to hand over to him the suit‑case and the key and the documents so that he might get them checked from the Inspector and after that Inamul Haq, Inspector, unlocked the suit‑case and when he got suspicious and directed him to take the suit‑case in open condition to the office of A. C. Customs he came out and was not aware as to what happened after that. He has further deposed that on the said date at 9.00 a.m. Buniad Ali Shah, Zahiruddin, appellant, Mustafa Kaudoro and one Saeed Ahmad had come at Islamabad Airport and it was he who filled the relevant documents and got it entered from the concerned clerk and marked from the Deputy Superintendent Custom in the name of Inamul Haq, Inspector Customs. In his cross‑examination he has, however, admitted that he was not possessing licence for clearance of the goods and was not a clearing agent himself as he was working as sub‑agent for one Awaiz Zaffar a clearing agent. He admitted that he had no authority letter in his possession issued by the clearing agent to work during the year 1985. He was unable to produce any record to show that he was sub‑agent and was also unable to recollect and remember the age of Mustafa Kaudoro. He also admitted, that the document (Ex.PB/4) was not showing his signature anywhere and there was no mention on that document that it was filled by him.

7. When examined under section 342, Cr.P.C. the appellant stated that it was on the direction of Mustafa Kaudoro that he and Buniad Ali Shah took the suit‑case for clearance to the concerned authorities and stated that the contents of the suit‑case comprising of frames of glasses, bed‑sheets and the heroin were not belonging to him. He has further stated that he was employed in Nigeria since the last ten years and Mr. Mustafa Kaudoro was known to him previously. Statement of Zahiruddin, appellant was also recorded on oath as provided under section 340(2), Cr.P.C. In that statement he has admitted that since Mustafa Kaudoro was known to him, frames of glasses were purchased by Mustafa Kadoro from a shop at Kashmir Road Saddar Rawalpindi in his presence. He approached Buniad Ali, who is son of a Superintendent of Custom, to help Mustafa Kadoro in case of any complications and as such he alongwith Buniad Ali Shah came to Islamabad Airport at about 8.00 a.m. on 14‑4‑1985. According to him, Mustafa Kadoro and Saeed had already booked the suit‑case and that the suit‑case was already sent for custom clearance. According to him, he alongwith Buniad Ali Shah contacted Jamshed, Clearing Agent, who had completed the formalities and handed over the relevant papers to the Superintendent and was subsequently informed that Inamul Haq was to check the suit‑case. Since Inamul Haq was not present and Mustafa Kadoro has to proceed abroad at 10.00 a.m. he handed over the suit‑case to Jamshed for its clearance and that at about 9.30 a.m. Jamshed handed over the relevant papers and the key to Inamul Haq. According to him, Inamul Haq entered the Customs Hall alongwith them and examined the suit‑case and directed Jamshed to take the suit‑case‑to A.C. Ibrar Ahmad, but he was subsequently arrested at 10 or 10‑30 a.m. He has deposed that he was not aware of the contents of the suit‑case and had no knowledge that it was containing heroin and stated that being unaware of the contents of the suit‑case he was falsely implicated. In his cross‑examination he admitted the recovery of frames of glasses, bed‑sheets and heroin, but stated that he had no knowledge about the heroin having been concealed in the suit‑case.

8. In his defence he produced Mustajab Officiating, Superintendent Interpol, FIA Headquarter, Islamabad, as D.W.1. He produced letter Ex. DA from Interpol Lagos, Nigeria, statement of Mustafa Kadoro (Ex. DB), letter (Ex. DC) and photostat copy of passport (Ex. DD) received by his office from Nigeria Interpol. In his cross‑examination, this defence witness has admitted that neither the documents mentioned above were verified from Nigeria nor the alleged signatures Mustafa Kadoro on Ex. DB were verified as such.

9. We have heard the learned counsel for the parties and have gone through the record with their assistance.

10. In the instant case the learned' counsel for the appellant contended that the delay in sending the complaint to the police station has made the prosecution case doubtful. According to him, the occurrence took place at 2.30 p.m. while the complaint was sent at 5.00 p. m. and no explanation for this delay of two and a half hours was forthcoming. He further contended that it is nowhere clear from the record that the heroin recovered was properly kept in safe custody and that the same was received in the office of Chemical Examiner intact. The learned counsel also referred to some con4xadictions in the statements of Inamul Haq and Muhammad Riaz, PWs. His main contention in that connection was relating to the weighment of heroin as Inamul Haq, P.W., has deposed that all the packets recovered were separately weighed while Muhammad Riaz (P.W.2) has stated in his cross‑examination that all the packets were weighed together in a block.

11. So far the objection relating to the delay pointed out is concerned, it has no force at all in this particular case. The delay in recording the formal F. I. R., is of only two and a half hours for which clear justification is available on the record. The complainant not only drafted the complaint after the recovery of heroin, but also prepared the recovery memos, sealed the heroin in different parcels and prepared other documents. The consumption of that much time in doing all that was but natural.

12. With regard to the objection about safe custody of the heroin it is clear from the complaint (Ex. PE) and the statement of Inamul Haq, P.W., that the sealed parcels were deposited with Superintendent Customs, Islamabad Airport and from there the samples were sent to the office of the Chemical Examiner on 6‑5‑1985. It is evident from the statement of Inamul Haq, PW. that he was not questioned by the learned counsel for the defence on that point and as such there is nothing material on the record to disbelieve the statement given about the safe custody of the heroin. Similarly, the objection with regard to discrepancies and contradictions in the statements of Inamul Haq and Muhammad Riaz, PWs, relating to the weighment of the heroin is of no importance for the reason that the contradictions pointed out are neither material nor the same are sufficient to make the prosecution case doubtful.

13. Learned counsel for the appellant then contended that although the recovery of heroin has been established from the suit‑case in question, but the mere recovery in that manner was not sufficient to connect the appellant with the crime as no material evidence is available on the record to prove that the appellant was aware of the fact, that the suit‑case contained heroin in that manner. He accordingly submitted that no reliable and cogent evidence is available on the record to prove the conscious possession of the appellant and submitted that the learned trial Court had no clear evidence before it that the appellant was aware of the fact that the suit‑case contained heroin and as such his conviction in the case has been recorded on the basis of mere conjectures and surmises. According to him, Courts must convict on the basis of evidence and not on hypothetical assumptions. In support of the submissions made by the learned counsel he has cited two cases reported as Nazir Hussain v. The State 1971 S C M R 404 and AIR 1961 Mad. 162.

14. We are conscious of the fact that possession implies dominion and consciousness. It should be conscious and intelligent possession and not merely the physical presence of the accused in close proximity to the object. It is, therefore, to be seen whether in the instant cage the conscious possession of the appellant of the heroin recovered has been properly and legally established through the evidence recorded, in the case. As held in Syed Shah and 2 others v. The State P L D 1987 SC 288 (Shariat Appellate Bench), no hard and fast rule about conscious possession can be laid down, whether a person be considered in conscious possession regarding contents of goods he was carrying in a suit‑case would depend upon the circumstances of each and every case.

15. From the statement of Inamul Haq, Inspector (P.W.1) and Muhammad Riaz (P.W.2), it is abundantly clear that the key of the suit‑case was produced by no other person, but by Zahiruddin, appellant. No doubt Jamshed appearing as a Court witness whose presence was admitted by Muhammad Riaz (P.W.2) has given a different version, but his testimony is worth no reliance as is evident from his statement during the cross‑examination. From his very conduct Jamshed appears to be in league with the accused party. He never made statement before the Custom Authorities or the Investigating Officer and has also failed to clearly depose that it was he who delivered the key of the suit‑case to the Customs authorities. 'From the very complaint it is evident that the key of the suit‑case was produced by no one else, but by the appellant and with that very key the suit‑case was opened in his presence. The learned counsel for the appellant contended that the fact that the statement about key was included in the end of the complaint clearly showed that it was the result of an afterthought. This submission of the learned counsel has no substance for the reason that the statement with regard to the production of key by the appellant is part of the complaint and it would make no difference whether that fact was mentioned in the beginning or at the end of the report. Again in his statement recorded under section 340(2), Cr.P.C., the appellant has clearly stated that Mustafa Kadoro alongwith him purchased frames of glasses from a shop at Kashmir Road, Saddar Rawalpindi. All that showed that the appellant was fully conscious of all the articles kept in the suit‑case. It is also evident from the record that Mustafa Kadoro to whom allegedly the suit‑case belong has been convicted for an offence under narcotics. It is admitted by the appellant that he was employed in Nigeria and was working in the same factory where the elder brother of Mustafa Kadoro was working. All these facts give a clear indication that the appellant had a direct link with the gang of smugglers of Nigeria and he was fully aware of the contents of the suit‑case when the very key was in his possession and when the suit‑case was produced by him before the Custom authorities.

16. Keeping all the above circumstances in view we do not find any justification for interference in the order of conviction recorded by the trial Court. The conviction of Zahiruddin son of Shabbir‑ud‑Din is accordingly upheld.

17. Coming to the question of sentence, the learned counsel for the State invited our attention to the judgment of this Court in Criminal Appeal No. 246/1 of 1986, where the sentence of the appellant in that case was reduced from ten years' R.I., to six years' R.I., and in that case one kilogram of heroin was seized from the possession of the appellant. He accordingly conceded that the quantum of sentence merit consideration. Keeping, in view the quantity of heroin seized in this case, we are inclined to show some leniency in the matter of sentence. Accordingly while upholding the conviction of Zahiruddin, appellant, under Article 4 of the said Order, his substantive sentence is reduced to R.I. for five years. The sentences of fine and whipping are, however, upheld. M. Y.H./376/F.Sh. Appeal partly allowed.