HABIBUR RAHMAN Versus THE STATE

Habib-ur-Rahman and Shukar Din were tried by the learned Special Judge, Customs, Lahore under section 156 (1) (8) read with section 178 of the Customs Act for attempting to smuggle charas out of the country. Challan against Asif was also sent up, but he being acquitted under section 265-K of the Criminal Procedure Code, charge against him was not framed. Habib-ur-Rahman was convicted under section 156 (1) 8 of the Customs Act and sentenced to four years' rigorous imprisonment with a fine of Rs.10,000 or in default thereof undergo further simple imprisonment for six months, whereas Shukar Din was acquitted. The appeal of Habib-ur-Rahman, convict, is now before me.

2. The brief facts of the case are that Habib-ur-Rahman, accused, was the proprietor of Osco Surgical Corporation at Sialkot and had export licence to export surgical instruments, on behalf of Osco Surgical Corporation to Lloyds Bank Ltd., 18-Wingate Street, London. The said goods were booked vide shipping Bill No. 1428/77-78. The said six cartons were inspected by Shukar Din, Customs Inspector, accused, at the premises of Habib-ur-Rahman, accused, on 8-8-1976. Habib-ur-Rahman, accused, then delivered the cartons to the office of the PTA, Sialkot, the same day. They were sent to the PTA, Lahore office, where they were received on 9-8-1977. The Lahore office found some discrepancies in the documents. Muhammad Riaz Akhtar, Cargo Supervisor, PIA Cargo, Lahore, PW4, sent the documents to the Sialkot office, from where they were received back again on 19-8-1977. On 20-8-1977 the shipping bill Ex.PB with other documents and six cartons were presented by Muhammad Riaz Akhtar, Cargo Supervisor, PIA Cargo, Lahore, PW4 to the Customs office at the airport. The said documents came up before Mr. M.A. Hassan, D.S. Customs, PW1. He found that there was overwriting on Ex.PA (which was form "E"). He marked the application Ex.PB to Saeed Akhtar, Inspector Customs, PW9 for scrutiny of documents and examination of one of the cartons marked No.4. Mr. Saeed Akhtar, Customs Inspector, PW9 inspected the documents and found them to be doubtful and he reported the matter to M.A. Hassan, D.S. Customs, PW1, with a request that all the cartons be examined. He made report EX.PB/1 to Sheikh Ismail, Superintendent Customs, who came to the spot alongwith M.A. Hassan, D.S. Customs, PW1. Then on the direction of the Superintendent Muhammad Saeed Akhtar, Customs Inspector PW9 checked all the six cartons, which were found to contain surgical instruments in which charas had been sealed. From these six cartons, one maund twenty seers of charas was recovered, vide recovery memo. Ex.PE which was signed by Muhammad Saeed Akhtar, Customs Inspector, PW9 and M.A. Hassan, D.S. Customs, PW1. Muhammad Saeed Akhtar, Customs Inspector, PW9 also took into possession the documents and drafted a complaint, a copy of which is Ex.PF. On the basis of the complaint, Habib-ur-Rahman and others accused were sent up for trial.

I have heard the arguments of the learned counsel for Habib-ur-Rahman, appellant, and the learned Standing Counsel for the Federal Government and have perused the record. This case suffers from a number of glaring legal infirmities. First, there is discrepancy as regards how much charas was seized and taken into possession. According to the testimony of the eye-witnesses, the charas was one maund twenty seers. The recovery memo. Ex.PE does not specify the weight of the charas at all. Second, it is not shown who took the samples from the charas recovered, for the purpose of sending the same to the office of the Chemical Examiner, Customs, Karachi for examination. Nobody has appeared to state that any samples were taken from the recovered charas and, if so, in whose presence and whether the samples were properly sealed and deposited in the Customs House at the airport, till they were sent to the Chemical Examiner and as to how they were sent to the Chemical Examiner. Third, the Chemical Examiner's report Ex.PK was not filed with the challan, but tendered in Court on 17-12-1980, when the case of the prosecution was closed. By this process the accused were deprived of the opportunity to inspect this document in advance, so as to be prepared to rebut this piece of evidence. Fourth, the report of Mr. A.R. Patel, Chemical Examiner, Customs Laboratory, Karachi, was not the report of the Chemical Examiner of the Government and could not be used in evidence under section 510, Cr.P.C., without calling the said Chemical Examiner to prove the same. Since Mr. A.R. Patel, Chemical Examiner, Customs Laboratory, Karachi, was not summoned to prove the report, the same is inadmissible. Fifth, that the Chemical Examiner's report Ex.PK was not put to Habib-ur-Rahman, appellant, in his statement under section 342 Cr.P.C. As such, the said report cannot be used as evidence against him. In this connection Muhammad Laique v. The State (1985 P.Cr.L.J. 671) may be referred.

4. The learned Standing Counsel for the Federal Government has not been able to give any reasonable explanation for these infirmities.

5. I have given my anxious consideration to this case, it is not clear from the evidence how much charas was actually recovered from the six cartons, alleged to have been booked by the appellant, whether any samples of charas were at all taken from the charas allegedly so recovered and, if so, in whose presence and whether the said samples were sealed and who kept the samples in safe custody and till when and on what date they were ultimately sent to the Chemical Examiner at Karachi. Mr. A.R. Patel, Chemical Examiner, Customs Laboratory, Karachi, is not the "Chemical Examiner or the Assistant Chemical Examiner to the Government". The word "Government" under section 3 (21) of the General Clauses Act, 1897, means the Central Government or the Provincial Government. A Chemical Examiner of a department of Government is not the Chemical Examiner to the Government. Had the Chemical Examiner to the Customs Laboratory at Karachi been notified as a Chemical Examiner to the Government for the purposes of section 510 Cr.P.C., his report would have been admissible. The Government can notify any person, as such. In 1949, the Imperial Serologist at Calcutta was notified as the Chemical Examiner to the Governments of all the Province. See Muhammad Shah v. The Crown (PLD 1949 Lah. 175). In the North West Frontier Provincer, the Inspector of Explosives was notified as a Chemical Examiner for the purposes of section 510 Cr.P.C. (See Muhammad ,4shraf v. The State PLD 1959 Peshawar 176). Learned Standing Counsel for the Federal Government has not been able to show any such notification appointing the Chemical Examiner, Customs, as Chemical Examiner or Assistant Chemical Examiner to the Government. Since there is no notification appointing him as Chemical Examiner or Assistant Chemical Examiner to the Government, for the purposes of section 510 of the Code of Criminal Procedure, his report Ex.PK would ex facie appears to be inadmissible. However, since no objection was taken at the trial when the report Ex.PK was exhibited, no objection can be taken now. (See Wendy Blaine Vinn v. The State 1984 P.Cr.L.J. 248 at P. 251 and Zulfiqar Ali Bhutto v. The State PLD 1979 S.C. 53 at pp 243 to D 248), But this does not change the position. Since it is not clear in the instant case whether samples were taken from the charas recovered and, if it was so, in whose presence and whether they were sealed and who kept the samples in safe custody and till when and on what date they were ultimately sent to the Chemical Examiner, Customs Laboratory, Karachi, it cannot be safely stated that samples were actually taken and sent under proper safeguards for examination. In this view of the matter, I cannot rely upon this evidence with any degree of safety to record a conviction. The prosecution has not been able to prove its case to the hilt against the appellant. The appellant is, therefore, entitled to the benefit of doubt.

6. For the foregoing reasons, this appeal, is accepted and the conviction and sentence of Habib-ur-Rahman, appellant, is set aside. ? The appellant is on bail. His bail bond shall stand discharged. The fine, if any recovered from the appellant, shall be refunded to him.

M.Y.H./H-42/L. ?????????????????????????????????????????????????????????????????????????????????? Appeals allowed.