STATE OF ISLAMIC REPUBLIC OF PAKISTAN VS KENNETH MARSHAL
2003 P T D 675
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday,
JJ
STATE OF ISLAMIC REPUBLIC OF PAKISTAN through Deputy
Attorney‑General for Pakistan
Versus
KENNETH MARSHAL and 2 others
Criminal Appeal No. 554 of 1995, decided on /01/.
rd
October, 2002. (On appeal from the judgment, dated 4‑5‑1995 of the High Court of Sindh, at Karachi, passed in Criminal Miscellaneous Application No.477 of 1994 and Criminal Miscellaneous Application No.44 of 1995).
(a) Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss. 2(a), 16, 178, 156(1) & 8‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to the State to examine, firstly, whether the judgment passed by High Court quashing the proceedings was sustainable in law and facts and secondly, whether order could be passed by High Court for partial quashment.
(b) Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss. 2(a), 16, 8, 178 & 156(1)‑‑‑Proceedings quashed by High Court‑‑‑Validity‑‑‑Principal accused, Preventive Officer who examined and cleared the baggage of co‑accused passenger and allowed his pershipment was found innocent during investigation and was not sent up, to face the trial‑‑‑Complainant, Senior Intelligence Officer, who had registered the F.I.R. was not examined and had been given up without any justification which had cast serious doubt over the veracity of the prosecution case‑‑‑None of the witnesses examined at the trial had implicated the accused directly or indirectly with the commission of offence and they could not be convicted merely on suspicion and conjectures‑‑‑Prosecution had failed to produce and exhibit the case property though many opportunities were afforded by the Trial Court‑‑‑No possibility of conviction of the accused being in sight continuation of trial against them would be an abuse of the process of the Court‑‑‑Impugned judgment not suffering from any flaw or legal infirmity, appeal was dismissed by the Supreme Court. Â
The State v. Asif Ali Zardari and another 1994 SCMR 798; Abdul Qadir Motiwala v. The State 2000 PCr.LJ 1734 and Maula Bux and 8 others v. The State and 2 others 1977 SCMR 292 ref.
Sardar Muhammad Aslam, Deputy Advocate‑General for Appellant.
Rana Muhammad Shamim, Advocate Supreme Court for Respondent No. 1.
Munir Ahmad Bhatti, Advocate Supreme Court for Respondent No.2.
Imtiaz M. Khan, Advocate‑on‑Record for Respondent No.3.
Date of hearing: 3rd October, 2002.
JUDGMENT
ABDUL HAMEED DOGAR, J.‑‑‑ This appeal by leave of the Court is directed against the judgment dated 4‑5‑1995 passed by a learned Judge in Chambers of the High Court of Sindh at Karachi, whereby Criminal Miscellaneous Applications Nos.477 of 1994, 44 of 1995 and 379 of 1995 moved by Kenneth Marshal, Nasir Mehmood and Rashid Ahmad Qadri under section 561‑A, Cr.P.C. respectively were allowed and the proceedings against them were quashed.
2. The facts leading to the filing of the instant appeal are that Directorate‑General of the Intelligence and Investigation (Customs and Excise), Karachi received an information that a large consignment of the heroin powder was smuggled in a wooden box from Pakistan under the British Airways Bill No.125‑4072‑2290 to Montreal Canada via London on 24th May, 1986, with the connivance of the customs staff and other agencies posted at Karachi Airport. The information was passed on 22nd June, 1986 to the Canadian Customs Authorities through the Drug Enforcement Administration of the US Department of Justice, Karachi the Canadian Authorities traced out the Box in question at Montreal and seized approximately 32 kilograms of heroin powder contained in the milk cartons placed within a wooden crate bearing the same Airway Bill number. The investigation was taken in hand and F.I.R. No.B‑795 of 1986 was registered on 1‑7‑1986 for an offence under sections 2(a), 16, 178, 156(1) and 8 of the Customs Act, 1969 by A Naeem Khan, Senior Intelligence Officer, Customs Karachi, against passenger Hussain Tariq and Nihar Muhammad, Preventive Officer, Customs House, Karachi who examined and cleared the baggage in question at the behest of accused Hussain Tariq. The place of occurrence was shown as Mirabel Airport Montreal, Canada.
3. On subsequent investigation another F.I.R. No.31 of 1986 was registered on 7‑7‑1986 by Habib‑ur‑Rehman, Inspector Preventive Services Customs House, Karachi, against Fazal of the Transcontinental Company (G.S.A.) of British Airways Karachi, Sadat Hussain Khan, Joseph Domelo and Kaleem, the Manager of the said Company while showing Hussain Tariq as absconder. Except the above named absconder the others were arrested and during investigation, it revealed that heroin powder weighing 32 kilograms was stuffed in the wooden box.
4. On 14‑7‑1986 vide interim challan Hussain Tariq and Nihar Muhammad, Preventive Officer, were sent up to face trial in the Court of Special Judge Customs, and Taxation, Karachi which was registered as Case No.164 of 1986 whereas on 20‑7‑1986, another charge‑sheet was submitted in the same Court against accused Nasir Mahmood, Fazal Kalim Ahmad Beg, Kenneth Marshal and Rashid Ahmad Qadri which was registered as Case No.161 of 1986. However, Nihar Muhammad, Preventive Officer was found innocent and thus a final joint challan was submitted before the Court against all the above mentioned remaining accused.
5. All the above mentioned accused filed applications under section 265‑K, Cr.P.C. which were rejected by the learned High Court of Sindh being premature. However, since the case was of 1986, the trial Court was directed to proceed with the case expeditiously and examine at least four material witnesses within three months where-after the applicants were allowed to repeat the same request. Respondent Kenneth Marshal challenged the above mentioned order before this Court wherein leave to appeal was granted but eventually his Criminal Appeal No.56‑K of 1990 was dismissed on 9‑5‑1991 while upholding the order of the High Court of Sindh.
6. Thereafter, it was on 20‑5‑1989 that charge was framed in the matter but the case could not proceed, therefore, accused Nasir Mahmood filed Criminal Miscellaneous Application No.279 of 1990 in the High Court of Sindh in August, 1990 and during the pendency of said application statement of P.W.1 Kabeer Ahmed was recorded. On 3‑3‑1994 respondent Nasir Mahmood moved Criminal Miscellaneous Application No.279 of 1990 which was dismissed alongwith Criminal Miscellaneous Application Nq.193 of 1991 filed by Kenneth Marshal. However, this time again directions were given to the trial Court to examine the complainants of both F.I.Rs. namely, A. Naeem Khan, Senior Intelligence Officer, Habibur Rehman and the Investigating Officer within a period of three months from the date of receipt of the order and thereafter, it would be open to the applicants to repeat similar applications. On 9‑6‑1994, complainant A. Naeem Khan was given up whereas the prosecution examined complainant Habib Rehman, P.W.3 Mir Ali Raza, P.W.4 Raheem Bux, P.W.5 Taqi Mirza and P.W.6 Bashir Ahmed. Where-after, all the above mentioned three respondents moved afore said applications under section 561‑A, Cr.P.C. for their acquittal which were allowed vide impugned judgment dated 4‑5‑1995.
7. This Court granted leave to appeal vide order dated 30‑8‑1995 to examine "firstly, whether the judgment/order passed by the High Court quashing proceedings is sustainable in law and facts, secondly, whether order could be passed by the High Court for partial quashment".
8. We have heard Sardar Muhammad Aslam, Deputy Attorney -General on behalf of the State Rana Muhammad Shamim, learned Advocate Supreme Court for Respondent No. 1, Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court for Respondent No.2, Mr. Imtiaz M. Khan, learned Advocate‑on‑Record for respondent No.3 have gone through the record and the proceedings of the case in minute particulars.
9. With the help of the learned counsel appearing for the parties, we have scrutinized the available evidence and find that the case against respondent Rashid Ahmad Qadri was quashed by the High Court of Sindh with the consent of the counsel for the State finding no evidence against him. As regards the remaining respondents Kenneth Marshal and Nasir Mahmood, learned Deputy Attorney- General though attempted to connect the respondents with the commission of offence but failed to refer even a single incriminating piece of evidence collected against them at trial. He, however, failed to refer to any flaw or legal infirmity in the conclusion drawn by the learned High Court of Sindh.
10. It would be pertinent to note that the principal accused, namely, Nihar Muhammad, Preventive Officer, who examined and cleared the baggage of co‑accused Hussain Tariq a passenger and allowed his preshipment was found innocent during the investigation and was not sent up to face trial. Irrespective of above, complainant A. Naeem Khan, Senior Intelligence Officer, who registered F.I.R. No.759 against him was also not examined and was given up without any justification which casts serious doubt over the veracity of the prosecution case whose benefit was rightly extended in favour of the respondents by allowing their applications. Moreover, none of the witnesses examined at trial has implicated the respondents directly or indirectly with the commission of offence as such, merely on suspicion and conjectures, they could not be saddled with the commission of the offence which is the principle for safe administration of justice.
11. According to the learned counsel for the respondents, they were implicated in this case only on the disclosure/statement of co- accused made during the investigation which in any case is not admissible in evidence.
12. Moreover, the prosecution has miserably failed to produce and exhibit the case property though many opportunities were afforded by the trial Court. In such circumstances, it was rightly held by the High Court of Sindh that there was no possibility of the respondents being convicted and continuation of trial against them would be an abuse of the process of the Court. As pointed out by the learned Advocate Supreme Court, even up to this time, the case against the remaining accused has not been concluded and is till pending trial'. On partial quashment, learned counsel appearing on behalf of the respondents stated that the same is permissible in law and in support of their contentions, relied upon The State v. Asif Ali Zardari and another 1994 SCMR 798, Abdul Qadir Motiwala v. The State 2000 PCr.LJ 1734 and Maula Bux and 8 others v. The State and 2 others 1977 SCMR 292.
13. For what has been discussed above, we find no justi fiable reason to disagree with the finding of the High Court of Sindh and, therefore, the instant appeal being devoid of force is dismissed.
N.H.Q./S‑248/SC Appeal dismissed.