P L D 2017 Balochistan 52
Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ
NOOR MUHAMMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(T) 01 of 2017, decided on 15th March, 2017.
(a) Customs Act (IV of 1969) ---
----Ss. 156 & 178---Smuggling of narcotic, drug, psychoropic substance(s) etc.---Punishment of
persons accompanying a person possessing goods liable to confiscation---Appellants were
convicted under S.156(1) read with S.178 of the Customs Act, 1969---Conte ntion of appellants,
inter alia, was that prosecution had failed to substantiate its charge against them and sought
acquittal ---Validity ---All witnesses recorded their statements in line with each other and no
contradiction was shown by the appellants ---No motive for false implication of appellants was
brought on record ---Report of Forensic Science Laboratory further strengthened the case of the
prosecution--- Trial Court therefore, rightly found the appellants guilty and on merits the
impugned judgment of T rial Court did not call for any interference ---Conviction of appellants
was upheld, accordingly.
(b) Customs Act (IV of 1969)---
----Ss. 156 & 178---Smuggling of norcotic, drug, psychotropic substance(s) ---Punishment of
persons accompanying a person posse ssing goods liable to confiscation ---Accused was liable
only for contraband that was chemically examined ---Sentence, reduction in ---Defendants were
convicted under S.156(1) read with S.178 of the Customs Act, 1969 for smuggling large
quantitates of liquor ---Appellants, inter alia, sought reduction in quantum of sentence ---Validity -
--Examination of each and every separate portion of contraband either sealed in a plastic bag or
contained in cans and tins was essential to have been conducted by the Chemical Ex aminer and
after receipt of affirmative analysis report of the Chemical Expert, it would be believed that
alleged recovered material/contraband, was a substance that was prohibited under the law ---If no
such examination of all the recovered substance was carried out, then under such circumstances
it could not be presumed that the entire recovered substance was contraband, rather the
presumption to be drawn was that the substance which had been chemically examined was the
contraband and an accused could only be held responsible for the contraband that was chemically
examined ---In the present case, only three bottles of whiskey and one bottle of beer were
chemically examined and in absence of chemical analyst report in respect of all recovered
contraband, appe llants could only be convicted and sentenced for recovery of three bottles of
whiskey and one bottle beer ---High Court while maintaining conviction of appellants, reduced
their sentences from five years to that already undergone, and observed that all othe r remaining
sentences would remain intact ---Appeal was disposed of, accordingly.
Ameer Zeb v. The State PLD 2012 SC 380 and Fareedullah v. The State 2013 SCMR 302
rel.
Muhammad Qasim Gajizai and Naseem Jan for Appellants.
Allah ud Din Saeed, Standing C ounsel for the State.
Date of hearing: 2nd March, 2017.
JUDGMENT
ABDULLAH BALOCH, J. --This judgment disposes of Criminal Appeal No.01 of 2017
filed by the appellants Noor Muhammad son of Sakhidad, Rasool Bakhsh son of Gamani and
Mubarek son of Lakho, aga inst the judgment dated 17th December 2016 (hereinafter referred as,
"the impugned judgment") passed by the Special Judge Customs/Sessions Judge Gwadar
(hereinafter referred as, "the trial Court"), whereby the appellants were convicted under Section
156 (1) read with Section 178 of Customs Act, 1969 to pay fine Rs.10,000/ - (Rupees Ten
Thousand only) each; they have also been convicted under section 156 clause of 8 II(C) read
with Section 178 of Customs Act, 1969 and sentenced to suffer five (05) years' R.I. each and
shall also liable to pay fine of Rs.10,000/ - (Rupees Ten thousand only) each, in default of
payment, they shall suffer two (2) months' S.I. each, with the benefit of Section 382- B, Cr.P.C.
2. Facts of the case are that on 25th September 2015 the complainant Muhammad lqbal,
Inspector Customs Gwadar lodged FIR No.09- Cus/Seiz/Gwd/15 at Police Station Custom
Gwadar, against the appellants, stating therein that on 23rd September 2015, the Customs
Authority along with the help of Maritime Security Agenc y apprehended a vessel/launch namely
A1-Hikmat No.BFD 6198 sailing towards Kappar area, which was signaled to stop, but the
launch tried to speed- up. However, the said launch was chased and overpowered and the search
of said vessel/launch resulted into rec overy of 1776 foreign liquor brand of Camros Blended
Scotch Whisky, 1440 foreign liquor brand of Muirhead's Scotch Whisky, 1296 foreign liquor
brand of MacAndrew's blended scotch whisky and 9408 cans of Red horse Beer from the said
vessel/launch.
3. After lodging of FIR, the investigation was entrusted to PW -3 Muhammad Iqbal, IP, who
took into possession the recovered contraband, separated one bottle each from Camros Blended
Scotch Whisky, Muirhead's Scotch Whisky and Macandrew's blended scotch whisky and one can
of Red horse Beer for analysis and sent the same to FSL and receipt the report in affirmative;
recorded the statements of witnesses under Section 161, Cr.P.C. and on completion of
investigations submitted the challan in the trial Court.
4. At the tr ial, the prosecution has produced three witnesses, whereafter the appellants were
examined under Section 342 Cr.P.C. However, neither they recorded their statements on oath as
envisaged under Section 340(2), Cr.P.C. nor produced any witness in their defenc e. On
conclusion of trial and after hearing arguments, the appellants were convicted and sentenced as
mentioned above in para No.1, whereafter the instant appeal has been filed.
5. Learned counsel for appellants stated that the prosecution has failed to substantiate the
charge against the appellant through consistent and concrete evidence. Learned counsel for
appellants prayed for acquittal of appellants and in alternate prayed for moderate reduction in
quantum of sentence in view of judgment of Ameer Zeb v. The State PLD 2012 Supreme Court
380.
6. The learned Standing Counsel contested the appeal on merits and opposed the moderate
reduction in the quantum of sentence on the ground that the prosecution has proved the case
against the appellants beyond any sh adow of doubt.
7. Heard the learned counsel and perused the available record. Record reveals that the
learned trial Court has rightly found guilty to the appellants on the basis of unshaken statements
of the prosecution witnesses. All the prosecution witne sses recorded their statements in line with
each other and the defence has not been able to point out any major contradiction on the
statements of witnesses. The witnesses have correctly narrated the story with regard to recovery
of alleged contraband from the possession of the appellants while concealed in the vessel/launch.
The appellants have failed to bring on record any motive for their false implication by the
prosecution witnesses. Besides, the FSL report has also been received in affirmative, which has
further strengthened the case of prosecution. Hence, on merits the impugned judgment of trial
Court is not open for any interference by this Court and we have no hesitation to hold that the
impugned judgment of Court below is based on proper appraisal of material available on record.
8. So far as the prayer of the learned counsel for the appellants for moderate reduction in the
quantum of sentence is concerned, in the case in hand, 1776 foreign liquor brand of Camros
Blended Scotch Whisky, 1440 foreign liquor brand of Muirhead's Scotch Whisky, 1296 foreign
liquor brand of MacAndrew's blended Bcotch Whisky and 9408 cans of Red horse Beer were
taken into possession, but out of above said recovered quantity one/one bottle from each brand of
whisky and one c an/tin beer, total four bottles/can were separated and sent to FSL for chemical
analysis. Though the FSL report has been received in affirmative, but the fact remains is that
only three bottles of Whisky and one can of Beer were examined in Laboratory by t he Chemical
Examiner and in absence of conducting the examination of remaining recovered contraband, it
cannot be presumed that the remaining material were also whisky or beer. This fact on the face
of it attracts the ratio of the law declared by the Hon'b le Supreme Court in the case of Amer Zeb
v. The State (PLD 2012 SC 380) as well as the case of Fareed Ullah v. the State 2013 SCMR
302, whereby it has been held that representative sample from each slate/slab/packet etc. should
have been taken and each sam ple should have been sealed in a separate parcel for chemical
examination. If no sample is taken from any particular piece or if different samples taken from
different pieces are not sent separately for analysis to Chemical Examiner, then the sample
would not be a representative sample and it would be unsafe to rely on mere words of the mouth
of the prosecution witnesses regarding the substances of which no sample has been taken
separately and sealed separately and tested being narcotics substance. Under su ch circumstances,
the samples separated for chemical examination would be considered as extracted from three
bottles of Whisky and bottle of beer and only such quantity of the contraband could have been
considered for conviction and sentence. The Hon'ble S upreme Court the case of Ameer Zeb held
as under:
"For the purposes of clarity and removal of confusion it is declared that where any
narcotic substance is allegedly recovered while contained in different packets, wrappers
or containers of any kind or in t he shape of separate cakes, slabs or any other individual
and separate physical form it is necessary that a separate sample is to be taken from every
separate packet, wrapper or container and from every separate cake, slab or other form
for chemical analys is and if that is not done then only that quantity of narcotic substance
is to be considered against the accused persons from which a sample was taken and tested
with a positive result. "
The Hon'ble Supreme Court in the case of Fareed Ullah has held as follows:
"The record of this shows that the recovered charas allegedly weighing 24 kilograms was
in the shape of 20 litters but after the alleged recovery one consolidated sample of the
recovered substance had been taken which sample weighed 10 grams only. This admitted
fact on the face of it attracts the ratio of the law declared by this Court in the case of
Ameer Zeb v. The State (PLD 2012 SC 380) and, thus, at best only one litter of charas
could have been considered against the appellants as the recover ed substance and the
appellants could have been convicted and punished accordingly. "
We are also fortified by the dictum laid down in the case of Shakeel Ahmed v. the State,
PLD 1998 Supreme Court (AJ&K) 31. In the said case recovery of 23 bottles of int oxicant were
recovered, but only two bottles were sent for Chemical Examination, hence it was held that, "21
bottles were not sent to Chemical Examiner for examination and in absence of Report of
Examination, at least, it could not be said with regard to 21 bottles as to which type of material
they were containing. Whether they were containing intoxicant material or not is a mere
suspicion which cannot be a substitute of a proof which is strictly required in a criminal case to
be proved against the accused."
10. The above referred judgments of the Hon'ble Apex Court have stipulated specific
guidelines for examination of the contraband either in solid or in liquid form. The examination of
each and every separate portion of contraband either sealed in plastic bag or contained in cans
and tins is essential to have been conducted by the Chemical Examiner and after receipt of
affirmative analysis report of Chemical Expert it would be believed that the alleged recovered
material is a substance that is prohibited un der the law. If no examination of all the recovered
substance is carried out then under such circumstances it cannot be presumed that the entire
recovered substance was contraband rather presumption would be drawn that the substance that
has been chemicall y examined was the contraband and the accused can only be held responsible
for the contraband that has been chemically examined. Admittedly, in the case in hand only three
bottles of Whisky and one bottle of beer were chemically examined, thus following the above
quoted principles of the Hon'ble Supreme Court and in absence of any chemical analyst report in
respect of all the recovered contraband, the appellants can only be convicted and sentenced for
the recovery of three bottles of Whisky and one bottle of beer.
11. Thus in view of what has been discussed hereinabove, while maintaining the conviction
of the appellants under Section 156 clause 8 II(C) read with section 178 of Customs Act, 1969 of
five (05) years' R.I., their sentences are reduced from five years to that of already undergone,
while all the remaining sentences shall remain intact.
With the above reduction in the quantem of sentence, the appeal stands disposed of.
KMZ/29/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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