1999 PLP 1335 (MLD)

Mr. Muhammad Ilyas Khan, Advocate for the appellants contended that prosecution has miserably failed to adduce evidence and states that Shahid Iqbal under any circumstances was not concerned with the act of Mst. Hamida Bibi from whom the heroin powder was secured. The only evidence against Shahid Iqbal so adduced by the prosecution is the solitary testimony of P.W. Kaleem Moosa P.W.3 who has stated that he was asked by the appellant outside the Airport building to afford facilities to Mst. Hameeda Bibi as she was a relative of a senior officer of F.I.A. This testimony in any case does not create any nexus of the appellant with the act of Mst. Hameeda Bibi. That statement of P.W.3 under section 161, Cr.P.C. was recorded on 1-9-1996, whereas the incident took place on 13-8-1996, this inordinate delay in recording his statement is not satisfactorily explained specially in view of the fact that the witness was a F.I.A. officer posted at Carachi. Learned counsel has further pointed out that prosecution has collected sufficient evidence against Fazil Hussain and Amir Ameen but prosecution at their own sweet-will dropped Amir Ameen and he even was not sent up by the prosecution to face the trial. None from the F.I.A. officials were even prosecuted though allegation against Shahid Iqbal is that he managed the services of the F.I.A. officials/personnel of immigration to accompany and get the lady passenger Mst. Hameeda Bibi cleared from the Customs Counter at the International Departure Hall. Mr. Muhammad Ilyas Khan, learned counsel for the appellant has drawn my attention to the evidence recorded by the trial Court of Kaleem Moosa which reads as under:-- "I was on duty on 13-8-1996 in Departure Hall of Q.I.A.P. as A.S.I. of F.I.A. Inspector Incharge Mr. Ahmed Jan Khan called me from my duty counter directed me to go out of Departure Hall alongwith Sepoy Waseem and facilitate Mst. Hamidan Bibi from outside Departure Hall in the Departure Hall. She is now present in Court and is the same. Mr. Ahmed Jan, F.I.A. Inspector Incharge further told to me that Sepoy Waseem will identify and locate the said Mst. Hamidan Bibi there." He has further stated:

I at that time asked Sepoy Waseem that he should inform Inspector Ahmed Jan that the Customs Officer is checking the baggage of Mst. Hameedan Bibi. Then the Sepoy Waseem came back and told to me that we should go to our duties leaving Mst. Hameedan Bibi with Customs Officer for doing his duties." In cross-examination this witness has stated as follows:-- "After one month of the incident my statement was recorded. I was summoned twice and thrice but once I was examined. I did not know accused Shahid Iqbal in any way prior to the incident. It is correct to suggest that I and Muhammad Waseem both of F.I.A. escorted/facilitated Mst. Hameedan Begum from Main Gate of Departure Hall to Customs Counter alongwith her baggage. It is correct suggest that Inspector Ahmed Jan of F. I. A. on duty that day directed me and F.C. Waseem to provide facilitation to Mst. Hameedan from Departure Hall as per instructions of superior. It is correct to suggest that it is not mentioned in my 161, Cr.P.C. statement that we saw, accused Shahid Iqbal talking with accused Mst. Hameedan out of Departure Hall. " In re-examination he has stated as follows:-- "By facility, we the F.I.A. officials mean to make the way of the passenger easy for movement in the rush." Learned counsel has further pointed out that Shahid Iqbal has alleged enmity with the Custom Officers in his statement recorded by the trial Court and ' has also produced certificate issued to him by the Government of Pakistan, Collectorate of Customs, Lahore which reads as follows:-- "I am pleased to convey to you the commendation and gratitude of British Customs expressed by the Assistant Chief Investigation Officer Investigation Division, Custom House, London for your assistance which resulted in two separate seizures of heroin (weighing 1.8 Kgs. and 42 Kgs.) in 1993 and arrest/conviction of two persons. This Collectorate also appreciates your professional skill and devotion to duty resulting in successful completion of above operation. " Learned counsel further points out that Mst. Hameedan Bibi has not deposed or disclosed any connection with Shahid Iqbal or with Mst. Constance Hadija Phakathi. Ahmed Jan the person who has helped Mst. Hameeda Bibi in getting her cleared is not even shown as accused in the case by the prosecution, whereas Amir Amin has already been released by the prosecution. Mr. Muhammad Ilyas Khan, Advocate for the appellant Mst Constance Hadija Phakathi states that the only evidence so far adduced by the prosecution is to the effect that she was arrested alongwith her documents by the Customs Official at the airport whereas under any circumstances prosecution has not proved any nexus of the appellant with Mst. Hameedan Bibi. According to learned counsel there is no iota of evidence against the appellant Mst. Constance Hadija Phakathi. Learned counsel refers to 1988 PCr.LJ 1188 and 1997 PCr.LJ

51. Mr. Syed Tariq Ali, Standing Counsel after going through and perusing the evidence recorded by the trial Court states at the bar that evidence so adduced by the prosecution is of such a nature that the same is not free from reasonable doubt: It would be pertinent to refer to the observation of the learned trial Court in its judgment at page 3 which provides that:- "The investigation also disclosed that co-accused Shahid Iqbal, Inspector of Customs at Lahore also joined and met the passenger lady accused Mst. Hamidan Bibi and Fazil Hussain and that he, Shahid Iqbal also managed the services of F.I.A. officeals/personnels of Immigration to accompany and to get cleared the lady passenger Hamidan Bibi from customs at the International Departure Hall." This observation of the learned trial Court is belied by the evidence of Kaleem Moosa P.W.3, Exh.6 referred to and reproduced hereinabove. In any case, case of Shahid Iqbal is on the same footing to that of F.I.A. officials specially Amir Ameen and Ahmed Jan who have not even been sent up by the prosecution. The certificates so obtained by Shahid Iqbal which he has produced in his statement and referred to hereinabove, has alleged enmity with Customs Officers, clearly shows that he has been made the scapegoat at the instance of the complainant and other Customs Officers. Evidence against Mst. Constance Hadija Phakathi in any case is not' forthcoming so as to maintain the conviction. Learned State Counsel is also of the opinion that evidence is of such a nature which is not free from reasonable doubt. Keeping in view the evidence so adduced and the case-law referred to hereinabove by the learned counsel for the appellant, I am of the firm opinion that appeals of Shahid Iqbal and Mst. Constance Hadija Phakathi must be accepted which are hereby accepted, the convictions and sentences so recorded by the learned trial Court are hereby set aside. So far the case of Mst. Hameeda Bibi is concerned the huge quantity of heroin weighing Five Kgs. of white heroin and 2.50 Kgs. of brown colour heroin was secured from her baggage and prosecution has produced trustworthy evidence which has tightly been believed by the trial Court and trial Court has rightly sentenced her to suffer R.I. for six years. Learned counsel for the appellant also does not agitate the substantive sentence of six years but only submits that being lady and a foreigner her fine of Rs.2,00,000 may be reduced. The State Counsel also raises no objection if fine of Rs.2,00,000 is reduced to Rs.50,000 only. 1 have considered the contentions of the learned counsel for the appellant Mst. Hameedan Bibi for reduction of fine only and learned State Counsel has also rightly raised no objection if the fine of Rs.2,00,000 is reduced to Rs.50,000 only. Admittedly, appellant is a foreign national lady and practically it would be impossible for her to pay fine of Rs.2,00,

000. Purely on humanitarian grounds and considering the no objection, for reduction of the fine by the Standing Counsel, I reduce the fine of Rs.2,00,000 to Rs.50,000 only in case of default of payment ,of fine of Rs.50,000 the appellant shall further suffer R.I. for six months. With this modification in fine only appeal of Mst. Hameeda Bibi stands disposed of. The trial Court has allowed the benefit of section 382-B, Cr.P.C. to the appellant Mst. Hameedan Bibi which order is hereby maintained. After hearing the parties on 2-3-1998 these appeals were disposed of by short order and these are the reasons for the same. H.B.T./S-157/K Order accordingly