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1983 P Cr. L J 2299

 

[Lahore]

 

Before Saad Saood Jan, J,

 

AHMAD KABIR‑Petitioner

 

versus

 

THE STATE‑Respondent

 

Criminal Appeal No. 284‑C of 1982, decided on 10th August, 1983

M. Bashir Malik and A. Sattar Khan Rajput for Appellant.

 

Sh. Maqbool Ahmad‑II for the State.

 

Date of hearing : 24th July, 1983.

 

JUDGMENT

 

The appellant, Ahmad Kabir (aged 28 years) an Afghan national, was convicted by the Special Judge (Customs), Lahore of an offence under section 156(1) (8) of the Customs Act, 1969 and was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000 in default of payment of the fine he was ordered to receive simple imprisonment for a further period of Six months. The appellant has filed this appeal against his conviction and sentence.

 

2. According to the prosecution in the early afternoon of 20th July, 198) the appellant went to the Lahore Airport to catch an Indian Airlines flight for New Delhi. A. S. I. Screed Iqbal (P. W.5) of the Airport Security Force was at the relevant time deployed for duty at the personal search cabin at the airport. The appellant was wearing jeans and showing signs of nervousness A. S. I. Saeed Iqbal (P. W. 5) felt suspicious and searched the appellant. He recovered two plastic bags from under the jeans tied to the‑ testicles. These bags contained 345 grams of heroin worth Rs. 1,00,000 (about). The appellant was arrested and a case under section 156. (1) (8w) of the Customs Act was registered against him.

 

3. The appellant pleaded. not guilty at the trial and denied that any heroin was recovered from his person. He did pot lead .any ,evidence in his defence.

 

4. The case of the prosecution rests mainly on the testimony of A. S. I. Saeed Iqbal (P. W. 5). He supported the story of the prosecution and stated that he had recovered two bags from under the jeans worn by the appellant. There is no reason whatsoever why the testimony of this witness should be rejected. He had no enmity with the appellant and no motive to falsely implicate him in this case. The appellant stated before the trial Court that the security officer demanded bribe from him and that when he refused to oblige him he falsely implicated him in this case. How ever, when A. S. I. Saeed Iqbal (P. W. 5) appeared in the witness‑box he was not questioned at all about this alleged demand. Quite clearly this is an afterthought and a mere attempt to create a defence.

 

5. The learned counsel for the appellant contended that under sec tion 160 (1) of the Customs Act only an Assistant Collector of Customs was competent to make a search. A. S. I. Screed lqbal (P. W. 5) was not a Customs Officer and for that reason he was not competent to carry out a search of the appellant. , Thus, the entire proceedings conducted by this officer were illegal. It seems difficult to subscribe to the contention of the learned, counsel. As already mentioned A. S. I. Saeed lqbal (P. W. 5) was an officer of the Airport Security Force. Under section 6 (e) of the Airport Security Force Act, 1975 be was inter alia competent to `take effective measures’ for prevention of smuggling of narcotics and while tak ing the said measures he was, under subsection (2) of the same section, entitled to exercise all the powers possessed by an officer incharge of a Police Station under the Code of Criminal Procedure. It is to be noticed that the Airport Security Force Act is a Special Act, creating a force to deal with special problems arising at the airport. The powers conferred upon it by the Act are not governed or over‑ridden by the provisions of the Customs Act. The expression `take effective measures’ is wide enough to include the power to conduct search as well as to detain a person found smuggling narcotics. It is difficult to conceive how a member of the Airport Security Force can take effective measures to prevent smuggling if he is not even competent to search a suspect. I am, therefore, unable to accept the contention of the learned counsel that A. S.‑I Screed Iqbal (P. W. 5) had acted illegally in searching the appellant.

 

6. The learned counsel for the appellant then contended that carrying of narcotics was merely a violation of Item 9 of section 156 (1) of the Customs Act and that the appellant could not be convicted under Item 8 thereof. This contention is also without any merit. There is clear dis tinction between the goods mentioned in Item No. 8 and those referred in item No. 9. The word `smuggle’ has been defined in section 2 (s) of the Customs Act, 1969: A perusal of this definition would indicate that this word has been used only with reference to certain goods either mentioned expressly in the definition itself or as may be notified by the Federal Government. The act of smuggling must, therefore, relate to those goods as are referred to in the said definition before it can con stitute an offence under Item No. 8. . Bringing in or taking out such goods as are not covered by the definition will not be an offence under Item No. 8 but will fall to be penalized under Item No. 9. The case before me is on of narcotics and narcotics are specifically covered by the aforementioned definition. I am, therefore, unable to accept the contention that a attempt to take narcotics out of Pakistan is outside the scope of the offence created by Item‑ No. 8.

 

7. Considering the circumstances under which heroin was recovered from the possession of the appellant 1 am satisfied that 19 intended to take it out of Pakistan. He was thus rightly convicted by the learned Special Judge of an offence under section 156 (1) (8) of the Customs Act. The question of sentence however requires some consideration. The appellant has been in custody ever since 20th July. 1981. He was con victed by the learned Special Judge on 14th February, 1982. While passing the sentence the learned Special Judge did not take into consideration the period the appellant had spent under detention before his conviction. This was a violation of the provisions of section 382‑B of the Code of Criminal Procedure. Accordingly, I reduce the sentence to imprisonment for a period of two and a quarter years (21 years). The sentence of fine does not require an interference. The appeal in disposed of accordingly.

 

M.Z.M. Appeal disposed of.

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