1991 PCr (PLP)

(i) Notice under section 164 of the Customs Act, 1969 (Exh.4/A). (ii) Mashirnama of initial seach of truck (Exh.4/B). (iii) Mashirnama of recovery of samples (Exh.4/C) and (iv) Notice under section 171 of the Customs Act, 1969 (Exh.4/E.). There is only a passing reference about the origin of the powder of heroin in F.I.R. (Exh.4/I), the details whereof, however, find place in Mashirnama of recovery (Exh.4/D), in the following words:-- (i) Balosha 777 Marks 13 kags. (ii) Mushtarak Teera Marks 10 kgs. (iii) National Corporation Illaqa Ghair D.M.C.555/333 07 kgs. Total: 30 kgs. This factor alone is, however, not sufficient to prove that the powder of heroin alleged to have been recovered from the possession of appellants was of foreign origin. The most important witness to testify in this behalf was Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner (P.W.3), who had performed necessary tests in respect of the samples received by him, but he too was of no assistance to the prosecution. On the contrary he has shown his inability to give the origin of the powder of heroin. It is quite conceivable that the eye of the expert can see a good deal more in matters of this kind than an untrained eye. The word `Illaqa Ghair' again does not necessarily mean part of Afghanistan. The tribal areas which form part of Pakistan are also called `Illaqa Ghair'. Article 246 of the Constitution of Islamic Republic of Pakistan, 1973, defines such areas. The learned Special Judge has tried to meet this argument in the following words:-- "In this connection it is pointed out that it has been specifically mentioned in F.I.R. that heroin in question was of Afghan origin. Beside this, the seizing officer in cross-examination, clearly stated that said heroin was of Afghan origin. The factum of its being Afghan origin way never challenged in cross-examination as well as in the statements of accused. It being so I hold that it was of Afghan origin. Under the circumstance in the aforesaid cases are not applicable to this case."

8. A finding has to be based on evidence and not merely on speculations. And in discussing the evidence and arriving at a final conclusion, it should be borne in mind that in criminal cases as a rule, it is for the prosecution to prove its case beyond any reasonable doubt. A finding of fact cannot be recorded only because there was no specific challenge from the other side. On these facts learned counsel for appellants asks this Court to hold that the powder of heroin alleged to have been recovered from the possession of appellants was not of foreign origin. I think this contention is well-founded. The case of Taza Khan and another v. The State reported in 1984 P Cr. L J 1308, is a leading judgment in a situation like the one under consideration, wherein it was observed:-- "As already indicated the appellants have been convicted under clause (89) of section 1-56(1) of the Customs Act. This clause relates to possession of goods in respect of which there is either definite evidence or reasonable suspicion that they were smuggled into Pakistan. Though the possession of Charas and heroin may itself be an offence under the excise and other laws relating to narcotics but to support a conviction under clause (89) ibid it is necessary for the prosecution to show that the narcotic's were of foreign origin or that they could be reasonably suspected to be so. Thus, an important question fir consideration in this appeal is whether the Charas and heroin allegedly found in possession of the appellants had been smuggled or were suspected to have been smuggled into Pakistan. At the trial the prosecution led no evidence whatsoever in this regard. When this position was brought to the notice of the learned counsel appearing for the State he feebly contended that the Charas and heroin were not made in Pakistan. It may be mentioned that at the hearing the learned counsel was assisted by officers of the Customs Department. When I asked the learned counsel if he was prepared to produce a certificate from some responsible authority in support of his assertion he expressed his inability to do so. I am, therefore, unable to hold that the Charas and heroin allegedly recovered from the truck of the appellants were not of Pakistan origin. The learned counsel however contended that there was cause for entertaining suspicion that the Charas and heroin allegedly recovered from the truck were smuggled into Pakistan. In support of his contention he referred to the recovery memorandum. It is mentioned therein that wrappings of some of the packets bore the words `H.K. (2) Itefaq Factory' and 1000 G.(H)', In the absence of any explanation with regard to what the initials stand for I do not think that the, inscriptions by themselves were sufficient to raise any reasonable suspicion with regard td the foreign origin of the contents of the packets, I must, therefore, repel the contention of the learned counsel:'

9. This view was followed in the case of Gul Nabi and another v. The State reported in 1988 P Cr. L J 1573, in which it was held that in the absence of any evidence showing the narcotics to be of foreign origin, the charge under section 156(1)(89) of the Customs Act, 1969, cannot be sustained.

10. In these circumstances, when there is no evidence on record to prove that the appellants were found in possession of smuggled goods, the conviction 8 recorded against them cannot be maintained and is accordingly set aside. The appellants who are in custody be released forthwith, if not required in any other case. Resultantly, the appeal is allowed. M.BA./H-290/K Appeal accepted.