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Petitioner: Abdul Rehman and another VS Respondent: The State
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun, Muhammad Amjad Rafiq Title: Abdul Rehman and another vs The State Case No.: Criminal Appeals Nos. 19 and 78 of 2008 Date of Judgment:2021-06-23 Reported As: PLD 2022 Lahore 235 Result: Appeals allowed
JUDGMENT
JUDGMENT MUHAMMAD AMJAD RAFIQ, J.---Through both these appeals under section 48 of the Control of Narcotic Substances Act, 1997 (CNSA, 1997), appellants (Abdul Rehman and Muhammad Shafqat ) have challenged the judgment dated 18.01.2008 passed by the learned trial court in case FIR No.20/2003 dated 02.08.2003 registered under sections 9(c)/15 of the Control of Narcotic Substances Act, 1997 at Police Station, ANF, Lahore, whereby they were convicted and sentenced as under; Abdul Rehman Rigorous Imprisonment for 15 years under section 15 of the Control of Narcotic Substances Act, 1997 with fine of one million Rupees and in default thereof to undergo simple imprisonment for a further period of six months. Muhammad Shafqat Imprisonment for life under section 15 of the Control of Narcotic Substances Act, 1997 with fine of one million Rupees and in default thereof to undergo simple imprisonment for a further period of six months. All the convicts were given benefit of section 382-B of Cr .P.C. All the assets of each convict derived from trafficking in Narcotics were ordered to stand confiscated in favour of Federal Government. 2. Elicited Facts governing prosecution case which map the criminal liability of appellants, commences from the sequence of events as set out by ANF in Crime Report Exh.P A through the words of Umar Hayat Javaid, Deputy Director , ANF, Punjab, Lahore, (PW-25) who told that Mr. W. Leigh Ryon Liaison Officer, Canadian Mounted Police Central South West Asia, Islamabad, Pakistan intimated Lt. Colonel Shaukat Hussain, Joint Director , Special Investigation Cell, Anti-Narcotic Force, Islamabad via Letter No.2003-ISBAD-09-DR-009 dated 18.03.2003 (letter not produced in evidence) that Canadian Customs intercepted and seized 11.79 ton shipment of Hashish in Halifax, Nova Scotia at Ceres Terminal which was destined for Montreal, Canada. According to the bill of lading, the
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consignment was sent through Cargo from Karachi, Pakistan and it was fetched at by the vessel in Sri Lanka. The carter's name was Index Traders MZ-55, Central Plaza, Barkat Market, New Garden Town, Lahore, Pakistan. In the said letter , it was informed that hashish was packed in green plastic covered by two layers of blue commercial "Friskies" a brand of cat food packing with outer layer of yellow plastic wrap. The hashish was marked with a square emblem and in gold lettering the name "Night Crustal". Each bundle was weighing 42 Kg to 45 Kg packed into an "off white" coloured tarp material. In the bill of lading, 169 bales of polyester/cotton fabric were mentioned. There were less than ten bales of cotton within the weight of 11.79 tons seizure of hashish. A copy of bill of lading was also attached with that letter and it was requested that any information if could provide would be of great assistance. After receiving this letter , a discrete inquiry was held by the Director General, ANF, Rawalpindi, wherein it was found that Messrs Index Traders, 55-MZ, Central Plaza, Barkat Market, New Garden Town, Lahore, through its proprietor Razzaq Ahmad, sent a consignment under Shipping Bill No. 3964 dated 22.11.2002 BBL S/No.0701593 containing 169 bales of polyester/cotton fabric to Canada via Karachi Port to Colombo/ Sri Lanka for its onward transmission to Montreal, Canada in which 11.79 tons hashish was detected at Halifax, Nova Scotia Ceres Terminal, Canada on 17.01.2003. It was further disclosed in the inquiry that the said consignment was booked on 21.11.2002 under bilty No.25 36, Al-Atif Goods Forwarding Agency , Plot No. 58, LDA, General Truck Stand, Ravi Link Road, Lahore. On 22.11.2002, the said consignment was carried to Dry Port, Lahore in Container No. POCU-0305513 on Truck No.LXU-8820 which was cleared by Muhammad Shafqat (appellant), an agent of Speedex Cargo, International situated at F-22, 1st Floor , Gulberg Centre, Main Boulevard, Gulberg-III, Lahore under License No.03/2000. GST No. 03-05-9805-1 14-91. Muhammad Shafqat (appellant) was also identified as Director Globe Linkers Cargo Services. It was also flashed from the inquiry that the said consignment was verified through Waseem Raza, Inspector , Sheraz Munir Malik, Superintendent, Arshad Javaid, Deputy Superintendent and others. During inquiry , it also came on the record that said Razzaq Ahmed was operating Bank Accounts Nos. 1936-3 and 1934-9 with the Bolan Bank, Ltd, Liberty Market, Gulberg, Lahore, in his name and in the name of Messrs Index Traders. In the inquiry , it also disclosed that the said consignment was transported from Lahore Dry Port to Karachi Dry Port under the supe rvision/responsibility of Abdul Rehman, Manager Marketing, M.A. Land Transport Co. Pvt. Ltd. The consignee of the consignment was Messrs Rodair International Ltd. 3710 Nashua Drive, Unit No.3, Mississauga Ontario L4V IM, Phone No. (905) 671-4655. During the inquiry , it was also found that the registration of the truck used in the alleged occurrence was shown in the name of one Noor Din from the name of Muhammad Ashraf, immediately prior the use of the truck for trafficking of said consignment. During the inquiry , it was concluded that prima facie, use of fake address and documents by Razzaq Ahmed and of Noor Din and fake bilty number of Al-Atif Goods Forwarding Agency , Lahore, the quick clearance of the consignment on the same day on the documents indicate that huge quantity of 11.79 tons of hashish seized in Nova Scotia (Canada) was smuggled through the consignment mentioned supra by Messrs Razzaq Ahmed, Muhammad Shafqat, Muhammad Ashraf Gujjar , Abdul Rehman, Noor Din through mutual consultation in the shape of criminal conspiracy , mutual facilitation, by preparing fake documents and with the connivance of the aforementioned Customs Officials for illicit gains. During the inquiry , all the accused were held liable to be prosecuted under sections 9(c) and 15 of the CNSA, 1997. 3. The appellants and the co-accused Muhammad Ashraf were arrested in this case and after thorough investigation, they were found guilty and a report under section 173 Cr.P.C. was submitted before the learned trial court. Razzaq, co-accused could not be traced, therefore, he was declared proclaimed offender . Waseem Raza, Inspector , Sheraz Munir Malik, Superintendent, Arshad Javaid, Deputy Superintendent were declared innocent during the investigation. 4. The learned trial court indicted the appellants and their co-accused to which they pleaded non-culpabilis and claimed trial. 25 witnesses were produced by the prosecution to prove its case including documents Exh.P A to Exh. PYY; Exh. P3 to Exh.P14 including Mark-A/1 to Mark-N. 5. The statements of the appellants were recorded under section 342, Cr.P.C. Replying to a question as to why the PWs deposed against you and why this case against you, Muhammad Shafqat appellant deposed that the prosecution case against him was mala fide; result of dishonest investigation; he has been made a scapegoat as
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none of the actual culprit could be traced out and it has also been admitted by the Investigating Officer during the trial that no irregularity and illegality was found by him in preparation of the documents which were prepared and presented to him; there is nothing incriminating available against him on the record and he pleaded his innocence. Appellant Abdul Rehman replying to a question as to why the PWs deposed against you and why this case against you, stated as under:- "The cargo meant for export after examination and clearance by the customs authorities, and duly sealed with seals of customs and security company , is transported from up country dry ports to Karachi sea port by private bonded carries duly licensed for this purpose by CBR Containers containing consignment of cotton fabrics duly examined/ cleared/sealed by customs as well as security company . Subject matter of the case was transported by the M.A. Land Transport Company Pvt. Ltd. which is licensed bonded carrier . I was serving with same company as Manager Marketing Dry Port, Lahore and thus I was involved in this case falsely . I neither arranged truck or container nor I was present at the time of loading, examination, clearance or sealing. I was just involved in this case being employee of the company which transported container from Dry Port to Seaport, Karachi. I was neither shareholder , nor director of the said company . Moreover , I never signed any document including Export Transit manifest concerning the consignment in question. I was involved in this case falsely by the Investigating Officer due to mala fide as according to him my attitude was lethargic when he visited office of M.A. Land Transport Co, Pvt. Ltd, Lahore and to save Mr. Shahbaz Anjum Butt, Manager M.R. Traders (PW-10) who had submitted written request to P&O Shipping Line for handing over of alleged container to the transporter from terminal and also to save Inspector Preventive Loading Customs, Lahore Dry Port who had allowed to use Truck No.LXU-8820 for transshipment of alleged container from Lahore Dry Port to Karachi by affixing his seal and signatu res on Export Transit Manifest. I am a retired Govt. Employee and having double M.A. one in economics and other in Business Administration (MBA) having young sons and daughters including one special child. My family reputation and as well as carrier of my children has been spoiled by the 10 due to his personal grudge and prejudicialness. Charge against me is wholly baseless, bogus, forged and fabricated based purely on mala fide on the part of I.O. Furthermore, none of the PW deposed against me in any form. The entire case has been framed on the basis of assumptions, suppositions and whims. I have committed no offence. 6. The learned trial court after conclusion of trial convicted the appellants and Muhammad Ashraf (Now dead; who was awarded 10 years imprisonment ) vide judgment supra. The appellants and Muhammad Ashraf assailed the judgement before this court and pursuant to Jail Report that they after serving out their substantive sentence including payment of fine have been released from Jail, their appeals were disposed of as being infructuous on 02.11.2017. Criminal Appeal bearing number 222/08 filed by the State for enhancement of sentence was also dismissed on the same terms. Both the appellants cited above challenged the Judgment of this court before Honorable Supreme Court through filing of Cr. Appeal No. 263 of 2018 (Abdul Rehman v. State ) and Cr. Appeal No. 264 of 2018 (Muhammad Shafqat v. State ). Honorable Supreme vide Order dated 13.11.2018 set aside the orders of this court and directed that appe als be deemed to be pending, shall be decided by this court afresh after hearing both the parties in accordance with law . 7. Learned Special Prosecutor for ANF has pointed out the role of Muhammad Shafqat accused which is as under:- Muhammad Shafqat was clearing agent of Messrs Speedex International Cargo, Lahore, who submitted documents of consignment belonging to the shipper under fake names to the Customs Authorities and the consignment was got cleared at Moghalpura Dry Port, Lahore. He also arranged container No. POCU 030561-3 for the shipment of narcotics concealed in the bales of cotton, after making inquiry from Saleem (PW-6), a Freight Forwarding Agent, and after settlement of rates, he booked it through PW-6 for the transportation of goods destined for Montreal-Canada and had taken upon himself to make all arrangement for the clearance and transportation of the container for Karachi and the accused also submitted documents to PW-6 which were taken into possession vide memo Ex. PR; and thereby he had intentionally facilitated and assisted Razzaq Ahmad (PO) in the smuggling of 11.79 tons Hashish in 169 bales of cotton from Pakistan to Canada while conc ealing the actual identity of the shipper with the intention of getting financial gains.
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On arrest of the accused on 4.8.2003 by Umer Hayat Javaid DD ANF Lahore (PW-25) and on 11.8.2003 on his disclosure and pointing out recovery of as many as 24 documents detailed in Ex. PC were recovered. Whereas role of Abdul Rehman, as maintained by learned Special Prosecutor for ANF, is as under:- He was Marketing Manager , M.A. Land Transport Company , bonded cargo service located outside Moghalpura Dry Port, Lahore. He intentionally and willin gly allowed vehicle No.LXU-8820 to be used in violation of standing instructions for bonded cargo to pick up container No. POCU 030561-3 from the Terminal on fake invoice apparently issued in the name of Al-Atif Goods Forwarding Agency to bring the consignment to Moghalpura Dry Port and from the Dry Port onward to Karachi shipyard. Thus he facilitated and assisted the shipper in the smuggling of huge quantity of 1 1.79 tons of Hashish from Pakistan to Canada. On his arrest in the case on 4.8.2003 by Umar Hayat Javaid DD ANF, Lahore (PW-25), he got recovered 12 documents which were taken into possession vide recovery memo Exh. PBB. On 7.8.2003 Muhammad Azam Hawaldar Customs (Export Section). Moghalpura Dry Port, Lahore, produced before the 10 (PW-25) documents including export documents and weighment slip dated 22.11.2002 of vehicle No.LXU-8820 and container No. POCU 030561-3, packing list dated 19.1 1.2002, all marked Exh. PRR to PW . PW-20 Muhammad Hanif also testified that he had supplied his trailer No.9436 to Abdul Rahman on rent basis. On the other hand, the accused only made their statements under section 342 Cr.P.C. Neither they did make any ,statement on oath as envisaged by section 340(2) Cr.P.C. nor did produce any evidence in defence except placing on record documents Exh. DA to Ex.DE. 8. On the other hand learned Counsel for Abdul Rehman accused/ appellant submitted that when first inquiry officer Lt. Col Shaukat Hussain, Joint Director did not appear before the court to testify the initiation of process and credible source of information to structure the accusation against the accused/appellant, the very lay out of prosecution case stands tarnished. He even did not determine the criminal liability of Abdul Rehman/appellant rather only posted his view that the role of appellant was of lethargic attitude, intentional or unintentional, during the process. None of the PWs established presence or appearance of accused/appellant in any process of transportation of narcotics. Documents brought on record do not bear signature of appellant Abdul Rehman. There is no evidence on record regarding formal request of Canadian government to conduct investigation and determine the origin of Cargo and to prosecute the culprits. It came into the evidence that shipment container of this case had a break at Sri Lanka and they had informed of an accident and damage of such container due to heavy 'Sea storm. Such fact of damage is also mentioned in the affidavit of Sergeant of Canadian Narcotics Force. In this case, consignee has not been traced out nor any information was brought on record about trial of any accused at Canada Court. Case against the appellant is farce. Learned Counsel for Shafqat appellant states that prosecution has not tendered original documents into evidence regarding the alleged consignment. Case property was also not produced. Recover y witnesses of alleged Narcotics were not recorded through live link to prove such recovery . Evidence brought by the prosecution manifests that container was finally checked and sealed by the Custom authorities but all the said/ accused officers have been exonerated during investigation and they were not put to trial. No direct evidence is available on record against the appellant. 9. Argument Heard. Record perused. 10: Contentions of parties require thrashing of evidence on factual as well as on legal premises. Before appreciating the evidence of parties, it would be appropriate to examine the present case on legal premises i.e. what would be the mode of inquiry/investigation of case, international cooperatio n and mutual assistance issues with foreign countries about production and value of foreign documents: These legal questions can further be summarized under the following heads:- 1. Once a formal request is received from a foreign country , what is the mode to carry out inquiry and other process under Control of Narcotic Substances Act, 1997? 2. Offences under CNSA are extraditable offence; therefore, whether "Principle of Aut Dedere, Aut Judicare" was complied with in this case?
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Whether investigation record of a foreign agency can be brought on record as evidence before the trial court without formal recording of statement of concerned investigator/witnesses? 4. Whether evidence of a fact could be proved through an af fidavit in criminal trial? 11. Mode of inquiry under CNSA, 1997 when a formal request is received from a foreign country . Chapter VIII of Control of Narcotic Substances Act, 1997 deals with International Cooperation and Mutual Assistance in prevention, detection and evidence gathering process for narcotics offences and it should have been followed to make the evidence legally admissible. Application of this chapter is subject to treaty , arrangement or understanding with foreign states to which Pakistan may from time to time be party , yet nothing in this chapter limit the nature and extent of assistance which .Pakistan may otherwise lawfully give to, or receive from foreign states. Section 57 of CNSA, 1997 authorizes the government to request a foreign State to have evidence taken, or documents or other articles produced and transmit to Pakistan such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets. Similarly , on request received from a foreign country as mentioned in section 58 of CNSA, 1997, Pakistan shall provide proper assistance. Once a formal request of foreign country is received, it should be processed as mentioned in section 59 of the Act ibid. It is not necessary that there must be a treaty in existence between the countries before a request is made rather arrangements and understanding is sufficient as mentioned in section 56 of Act ibid. In this case it is also reflected from the request made by Canadian Police to Pakistan and a reference from ANF to Canadian Police for dispatching the record of recovery proceedings which shows that understanding was in existence between both the countries. Though formal request of Canadian gove rnment has not been proved in this case, yet taking shelter of section 58 (3) of Control of Narcotic Substances Act, 1997, which allows acceptance of foreign request, even if it is not formally made; the question arises, how the process would take lead after acceptance of such foreign request. The Anti-Narcotics Force under section 5 of Anti-Narcotics Force Act. 1997 performs following functions; 5. Functions of the Force. The Force shall (a) inquire into, investigate and prosecute all offences relating to, or connected with, preparation, production, manufacture, transportation, illicit traffick ing or smuggling of intoxicants, narcotics and chemical precursors or reagents used in the manufacture of narcotics, or any offence committed in the course of the same transaction under any law for the time being in force, including an attempt or conspiracy to commit, or any abetment of, any such offence, or any offence committed under the Control of Narcotic Substances Ordinance, 1996 (XCIV of 1996), or the Prohibition (Enforcement of Hadd) Order , 1979 (P .O. 4 of 1979). (b) trace and freeze the assets; (c) provide assistance and advice to other enforcement agencies on all matters in the field of narcotics and to collect information from all national and international enforcement agencies about illicit narcotics traffic and traffickers; (d) maintain liaison with all national or international narcotics authorities, Organiza tions, bodies, associations and societies and represent Pakistan in such conferences, seminars and workshops arranged by any such organization on narcotics related matters,- (e) arrange and co-ordinate training of own staff and members of other enforcement agencies in various aspect of narcotics enforcement, (f) co-ordinate the project and schemes for elimination and destruction of poppy cultivation; and (g) perform any other related functions which may be assigned to it by the Federal Government. Once the direction is made to Anti-Narcotics Force or it takes notice of any request of foreign country , it must follow the process which has been highlighted in Section 59 of the Act, which is reproduced as under: 59. Foreign requests for an evidence-gathering order or a search warrant (1) Notwithstanding anything contained in any law for the time being in force, where the Federal Government approves a request of a foreign State pursuant to Section 60 to obtain evidence in Pakistan or be able to be given by a person believed to be in Pakistan, the Director General or an officer authorized by him may apply to the High Court for
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(a) a search warrant; or (b) an evidence-gathering order . (2) The High Court to which an application is made under sub-section (1) may issue an evidence-gathering order or a search warrant under this subsection, where it is satisfied that there are reasonable grounds to believe that-- (a) an offence has been committed, or is suspected on reasonable grounds to have been committed against the laws of the requesting State which, if committed in Pakistan, would have constituted an offence under this Act (b) evidence of the commission of the foreign offence or information that would reveal the whereabouts of a person who is suspected of committing the foreign offence, is likely to be found in a building, receptacle or place in Pakistan; and (c) in the case of an application for a search warrant, it would not, in all the circumstances, be more appropriate to grant an evidence-gathering order . This section applies not only for making request pursuant to section 60 of CNSA, 1997 but request for evidence gathering process if it is received from a foreign government, which clearly provides that evidence gathering process shall be initiated only on the direc tion of High Court. This section has spec ifically been designed to protect the basic right of fair trial and due process in offences which are disclosed and reported beyond the limits of territory of a sovereign State. It is clear that non-observance of above. process has contaminated and maligned the whole process of inquiry , registration of FIR and Investigation which has rendered the process as unfair , unjust and unlawful and on the basis of such unlawf ul foundation, trial cannot be held legal by stretching some provisions of Cr.P.C. or CNSA for taking exception to it. The contour of this section has also been replicated in new legislation whereby Parliament has introduced "Mutual Legal Assistance (Criminal matters) Act, 2020 ". Provision of section 9 of the said Act, for evidence gathering order are almost similar to the section 59 of CNSA, 1997 which requires that permission of the coart is'essential. For reference some portion of section 9 of Mutual Legal Assistance (Criminal matters) Act, 2020 is reproduced as under; 9. Foreign request for an evidence gathering order or search warrant-(1) Notwithstanding anything contained in any other law for the time being in force, where the central authority approves the request of a country pursuant to section 8 for the following purposes, namely: - (a) taking of a statement or testimony from a person; or (b) production of documentary or other evidence in Pakistan: or (c) identification of a person, property or record, the central authority may apply to the court for e search warrant or any evidence gathering order , as the case may be. 12. Aut dedere, aut judicare The principle aut dedere, aut judicare finds its place in international criminal law and is the core principle in extradition offences; it is usually applied in transition offences particularly organiz ed one which affect more than one sovereign states. The principle of double criminality pushes this principle on the ground that if an act or omission is an offence under the laws of both or more sovereign states, the offenders .shall be tried and punished in either of the States and both of the Sovereign states can ask to each other "either to Prosecute or to extradite " which is called "aut dedere, aut judicare ". It is applicable in extraditable offences; Section-66 of Control of Narcotic Substances Act, 1997 declares all offences in Chap II of the Act are extraditable. Foreign…
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