Find a Lawyer

Special Criminal Jail Appeal No. 13 of 1986, decided on 13th October, 1986.

‑‑‑S. 156(1)(8)‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Nothing found in prosecution evidence to show as to when and where Heshish oil was recovered from search of baggage of accused and whether it was witnessed and sealed in presence of Mashirs‑‑Sample sent to Custom Laboratory was not under cover of any letter of seizing officer nor report of Chemical Examiner showing that same issued in respect of sample taken from oil, recovered from baggage of accused‑‑Prosecution. held, failed to establish with certainty that sample tested in Customs Laboratory was actually taken from oil recovered from search of baggage of accused‑‑.accused given benefit of doubt and acquitted, in circumstances.

Rustom J.E. Kaikobad for Appellant.

A. Rasheed Nizamani and A. Sattar Pinger for the State.

Dates of hearing: 7th, 8th and 9th of October, 1986.

By judgment, dated 1‑4‑1986 of the learned Special Judge, the appellant has been convicted of an offence under clause 8 of section 156(1) of the Customs Act, 1969, and sentenced to R.I. for 1 years and a fine of Rs.50,000 or R.I. for six months in default of payment of fine. Concession of section 382‑B, Cr.P.C. was extended to the appellant. When this appeal came up for hearing before me on 7‑10‑1986, Mr. Rustom Kaikobad, learned counsel for the appellant, informed that the appellant had served his entire sentence and had been released a few days earlier by the Jail Authorities. The appellant was present throughout the hearing of this appeal. Mr. Rustom Kaikobad submitted that in spite of the fact that the appellant had served the entire sentence, the appellant wanted to press this appeal. I have heard at or length the arguments of the learned counsel for the appellant and the learned counsel appearing for the State.

2. According to the prosecution case, the appellant, a French national was leaving Karachi Airport for Columbo by a P.I.A. flight on 28‑3‑1985 but was suspected by a Customs Officer, who intercepted the appellant and after fulfilling the formalities, the baggage of the appellant was searched in the presence of two Mashirs and the search resulted in the recovery of five kilograms of Hashish Oil from the coat's hanger of the appellant. According to the prosecution case, the Hashish Oil was kept in a plastic bag which was found inside the coat's hanger. The appellant was arrested and tried by the learned Special Judge for an offence under clause 8 of section 156(1) of Customs Act. The prosecution examined the seizing officer, one of the two Mashirs, two chemical examiners and the Investigating Officer. The appellant did not lead any evidence in his defence. As observed earlier, by judgment, dated 1‑4‑1986 the appellant was convicted.

3. It was first submitted by Mr. Rustom Kaikobad, learned counsel for the appellant that the appellant had been greatly handicapped by the fact that neither he knew any local language nor English and his interpretors were perhaps not very competent. I find that no grievance had been made by the appellant on this score, and the record shows that every opportunity was granted to the appellant to defend his case. Several interpretors, one after the other, were made available for translating the evidence given by the witnesses into French, the language spoken by the appellant. Then the record shows that three different statements were filed by the appellant in English which also show that adequate facilities had been afforded to the appellant during his trial to overcome the language problem faced by the appellant.

On merits it was argued by Mr. Rustom Kaikobad that prosecution had not been able to establish that any Hashish Oil had been recovered from the baggage of the appellant. It was submitted by the learned counsel for the appellant that according to the appellant's case, he had already checked in his luggage, which included the coat's hanger (from which the Hashish Oil had been recovered according to the prosecution) and he had been given baggage tags by the Traffic Staff on the counter at the Airport but later on when he was suspected, his baggage was brought back and during this period somebody else had placed the plastic bag in the coat's hanger. I find no merit in this defence raised on behalf of the appellant. If that had been the case of the appellant, this would have been put to the prosecution witnesses during the trial. This was not done. The appellant did not disown the coat's hanger. He also did not challenge the fact that he had been searched in the presence of the Mashirs and a plastic bag was taken out of his coat's hanger during the search. In the circumstances of this case, I find it difficult to believe the story of the appellant that somebody else had placed the plastic bag inside his coat's hanger.

The other contention raised on behalf of the appellant was that the guilt of the appellant depended on the report of the chemical examiner and according to the learned counsel the evidence on record did not establish that the samples of the oil sent to the Chemical Examiner for report were in fact the samples taken from the oil recovered from the coat's hanger of the appellant during search by the Customs Authorities. On a perusal of the evidence on record and the submissions of the learned counsel in this regard I find great substance in this contention of the learned counsel.

Out of the two Mashirs, in whose presence search was conducted by the Seizing Officer Abdus Salam, only one Mashir, namely Zafar Nasir, a cleaner working with Civil Aviation Authority at the Airport, was examined. He states very clearly in his examination‑in‑chief (Exh.6) that in his pre‑Price no sample was drawn by the Customs Officer from the Hashish Oil recovered from the appellant. The only other witness, who is relevant on this point, is the Seizing Officer, namely Customs Officer Abdul Salam (Exh.5). He says in his examination‑in‑chief that he had drawn three samples from the seized Hashish Oil for sending the same for chemical examination. He does not say that the samples were drawn in the presence of the Mashirs. It is not clear from his evidence as to when and where these samples were drawn. He also does not say in his evidence that the samples were sealed. This witness has also not stated whether he had sent the samples under cover of any letter to the chemical examiner. The record also does not show whether any sample had been sent by the Seizing Officer to the Chemical Examiner under cover of any letter.

The report of the chemical test has been produced as Exh.7‑A through P.W.3 Abdul Basit, Assistant Chemical Examiner in the Customs Laboratory at Karachi. This report is, dated 21‑5‑1985. The report does not show that the sample was received under cover of any letter from the Seizing Officer. It also does not give the date of receipt of the sample in the Laboratory.

From the evidence on record, therefore, it cannot be said with certainty that the sample, which was tested in the Customs Laboratory, was taken from the oil, that had been recovered from the search of the baggage of the appellant on 28‑3‑1985. The samples were not drawn in the presence of the Mashirs. The evidence does not show that when and where the samples were drawn. There is no evidence that the samples were sealed. The evidence on record does not show that the samples had been sent by the Seizing Officer to the Customs Laboratory under cover of any letter. The report of the Chemical Examiner (Exh . 7‑A) does not show that it is a report in respect of a sample taken from the oil recovered from the baggage of the appellant. A doubt has been created that the sample tested in the Customs Laboratory was taken from the oil recovered from the baggage of the appellant. In such cases the prosecution' is required to establish with certainty and beyond reasonable doubt that the report of the Chemical Examiner is in respect of the sample taken from the baggage of the accused or from his personal search. If a doubt is created, benefit of doubt must go to the accused. In the instant case, as observed earlier, a doubt in this regard has been created and on account of this lacuna in the case of the prosecution, the conviction of the appellant is liable to be set aside.

4. Special Criminal Jail Appeal No. 13 of 1986 is accordingly allowed and the judgment, dated 1‑4‑1986 of the learned Special Judge in Case No. 96 of 1985 is set aside. If any fine has been recovered from the appellant, the same be refunded to him.

S. G. D. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.