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Special Criminal Appeal No 18 of 1986 decided on 27th September, 1986.

‑‑‑S. 156(1)(8)‑‑Evidence, appreciation of‑‑Contraband Heroin allegedly recovered from cabin of accused in presence of Captain and Chief Engineer of ship yet such Mashirs not examined at trial‑‑Material contradictions in evidence of two senior Preventive Officers of Customs Department, who organized raid with regard to time of raid and manner of search‑‑Conviction and sentence set aside in circumstances.

Badar Muneer for Appellant.

Abdul Sattar Pinger for the State.

Dates of hearing: 14th and 21st September ,1986

By the following short order dated 21‑9‑1986 this appeal was allowed:‑--

"For reasons recorded separately Special Criminal Appeal No. 18 of 1986 is allowed and the judgment dated 22‑7‑1986 of the learned Special Judge is set aside. The appellant Muhammad Abdul Rasheed son of Abdul Hameed is ordered to be released forthwith if not required in any other case."

This judgment contains the reasons for allowing this appeal.

2. The appellant, a cook working on a foreign ship m. v. "Lucayan Trader", was convicted under clause 8 of section 156(1) of the Customs Act, 1969, on the charge of smuggling 4,900 grams of Heroin, by judgment dated 22‑7‑1986 of the learned Special Judge, in Case No. 68 of 1985. The appellant was sentenced to suffer R.I. for four years and to pay a fine of Rs.30,000 or in default to suffer R.I. for one year.

Being aggrieved, the present appeal under section 185(F) of the Customs Act, 1969, was filed by the appellant. I heard the arguments of Mr. Badar Muneer, learned counsel for the appellant and Mr. Abdul Sattar Pinger, learned counsel for the State.

3. According to the prosecution, the contraband Heroin was recovered in the presence of the appellant from the Sofa set lying in the cabin of the appellant in the presence of two Mashirs, that is, the Captain and Chief Engineer of the ship in question. These two mashirs have not been examined. The prosecution case depended on the evidence of Senior Preventive Officer, Customs, P.W.1 Ghulam Rasool Lasi, who had organized the raiding party; P.W.3 M.M.Qureshi, who was another Senior Preventive Officer alleged to have been a member of the raiding party; P.W.4 Javed Akhtar Moghal, Investigating Officer, a Preventive Officer of the Customs; and P.W.2 Abdul Basit, Assistant Chemical Analyser, who had tested the samples.

In the F.I.R. lodged by the P.W.1 Ghulam Rasool Lasi, no mention is made about another Senior Preventive Officer, an officer holding equivalent grade and position in the Customs, being a member of the raiding party. Perhaps mention of the name of P.W.3 M.M.Qureshi was not necessary, but, neither the Investigating Officer, P.W.4, Javed Akhtar Moghal, referred to M.M. Qureshi as the member of the raiding party nor was his statement recorded under section 161 Cr.P.C. by the Investigating Officer. Then M.M. Qureshi has also admitted in his cross‑examination that he had not signed any document prepared by Ghulam Rasool Lasi, leader of the raiding party in connection with the search, seizure and arrest in this case. If Senior Preventive Officer M.M. Qureshi had been a member of the raiding party and had witnessed all the incidents of the raid including search, seizure and arrest, he would have been an important witness for the prosecution and his name would have definitely been mentioned in the list of witnesses in the challan. The challan dated 10‑3‑1985 does not show his name as one of the prosecution witnesses. Five witnesses are named in the challan, they are P.W.1 Ghulam Rasool Lasi, Senior Preventive Officer; P.W.2 Abdul Basit, Chemical Analyser; P.W.4 Javed Akthar Moghal, Investigating Officer; and two officers of the ship in question, who had signed the Mashirnama that is the Captain and Chief Engineer. The suggestions made in the cross‑examination to the prosecution witnesses about M.M. Qureshi not being a member of the raiding party and the submissions of Mr. Badar Muneer, learned counsel for appellant, during the arguments before me in this regard are, therefore, not without substance. A strong doubt has been created as to whether M.M. Qureshi was at all a member of the raiding party. The record does not support the presence of M.M. Qureshi on the scene and his name was introduced for the first time by P.W.1 Ghulam Rasool Lasi, when he appeared to give his evidence before the learned Special Judge on 9‑10‑1985.

A written statement dated 27‑2‑1985 had also been given by the Captain and Chief Engineer of the ship in question on record, which shows that one Khan, a representative of the agents of the ship, was also present at the time in question. The said Khan is neither shown as a witness in the challan nor was he examined by the prosecution. If the said Khan was a witness, he would have been an important witness for the prosecution especially, as he was not connected with the Customs Department. There is no reason apparent from record why the said Khan was not examined as a witness of the prosecution.

Then Mr. Badar Muneer, learned counsel for the appellant rightly pointed out that there are material contradictions in the evidence of the two Senior Preventive Officers. The contradictions are about the time when the raid took place and about the manner of search. It has already been observed that the presence of M.M.Qureshi as a member of the raiding party is doubtful and according to the evidence of P.W.1 Ghulam Rasool Lasi, all the relevant events had taken place in the presence of the Captain and the Chief Engineer of the ship but the written statement dated 27‑2-1985 of the Captain and the Chief Engineer of the ship page III of the record does not show that it was so. Then the Mashirnama Exh. 5‑A is to the effect that from about 11 a. m. the search of the vessel was started by the raiding party for recovery of the heroin and it was around mid‑day i.e. 12 noon when the Heroin was recovered during the search from the cavity in the a seat of the sofa in the cabin of the appellant, whereas according to the evidence of Ghulam Rasool Lasi no search was carried out by the appellant himself apparently admitted his guilt, took the raiding party to his cabin and pointed put the place where the Heroin was concealed.

4. On the basis of the evidence brought on record, therefore, in my view, it had not been established beyond reasonable doubt that the appellant had committed an offence punishable under clause 8 of section 156(1) of the Customs Act, 1969. For the aforesaid reasons, the impugned judgment dated 22‑7‑1986 of the learned Special Judge, Karachi, in Case No. 68 of 5 was set aside by the short order passed on 21‑9‑1986.

S. G. D. Appeal allowed.

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