' Appellant Nadeem along with two other co-accused namely Hamayun Rashid and Maroof was tried in case F.I.R. No.141, dated 7-11-2000 registered under section 156(1)(8) of the Customs Act, 1969 at Police Station Sarwar Road, Lahore Cantt. By the Special Judge Customs, Lahore who vide judgnient dated 16-2-2002 while acquitting the co-accused convicted the appellant under section 156(1)(8) of the Customs Act, 1969 and sentenced him to seven years' R.I. And fine of Rs.50,000 or in default whereof to further undergo one year's R.I. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Calling in question the impugned judgment, the appellant filed the instant appeal.
3. Facts in brief are that on 7-11-2000 upon a secret information that heavy amount of Pak Currency will be smuggled from Pakistan to Dubai through PIA flight PK 209, Maqsood Ahmad, Inspector Customs Traffic, issued instructions to the Customs staff to remain alert. At about 11-00 a.m. The complainant along with other Customs staff went to the aircraft for rummaging. During rummaging some screws of the ceiling of toilet-D were found loose. Thus, in the presence of Muhammad Rafiq Khan, Aziz-ur-Rehman and Zulqarnain Hassan the ceiling of the said toilet was opened and two bags of clothes were recovered. One bag contained currency notes of 33 lacs of rupees whereas 41, lacs of rupees were recovered from the second bag. Thereupon, Azizur Rehman, Flight Purser told that the said aircraft had come from Karachi to Lahore under Flight No.PK 302, a shortwhile ago and that immediately after landing of the aircraft at Lahore. Airport a passenger had entered the toilet-D along with his hand carry bag and remained in the toilet for about 20/25 minutes. When door of the toilet was knocked at, the said passenger came out and was confused.
He did not give any reason for his stay in the toilet for such a long time. The passenger disclosed his name as Nadeem and alighted from the aircraft quickly. Statedly, the said passenger was about 5-1/2 feet in height with slightly thick body and whitish complexion. Reportedly, none claimed the ownership of 74 lacs of rupees. The currency was seized and the A.S.F. Staff at the Airport was intimated about the identification marks of the passenger at once. At about 12 in the Noon. Zulfiqar Ali Joya, S.-I./A.S.F. Intimated that he had found passenger with the above mentioned identifiCation marks who was trying to get out of the International Briefing Hall. The name of said person was Nadeem. He was having Passport No.G-492656. Aziz-urRehman Purser also identified him. Nadeem (accused) disclosed that he had travelled from Karachi to Lahore by PK 302 under fake name of.
Farooq and had concealed rupees 74 lacs in toilet-D of the aircraft which had carried Flight No. PK 302 from Karachi to Lahore and that he wanted to smuggle this currency to Dubai by PK 209.
However, when he reached the International Briefing Hall for departure to Dubai, he came to know that the currency concealed in toilet-D of the aircraft had been recovered and out of fear he tried to get out of the briefing area but was stopped. Thus Nadeem was arrested and booked in this case. During investigation Maulvi Maroof and Hamayun Rashid were also found involved in the occurrence besides one Hamayun Butt who could not be arrested.
4. Formal investigation in this case was conducted by Maqsood Ahmad, Inspector Customs P.W.6, Ali Irtafa Usmani, Deputy Superintendent Customs P.W.7 and Mubashar Nazar P.W.8.
5. During the trial prosecution produced eight witnesses to prove the charge against the appellant and his co-accused Karamat Ali, A.S.-I. P.W.1 entered the formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. Prepared by Maqsood Ahmad, Inspector, Azizur Rehman, Flight Purser P. W,2 while supporting the prosecution case submitted that the accused appellant who was travelling from Karachi to Lahore in Flight PK 302 entered the toilet-D of the Aircraft and remained there for 20/25 minutes and he thinks that accused had opened the ceiling of the toilet-D and put two bags there.
This witness informed the Security and Engineering Branch at Lahore Airport about the behaviour of the accused. He also identified the appellant at the airport in the office of Inspector Customs who conducted the investigation. Zulfiqar Ali Joya, S.-I. P.W.3 narrated that under the direction of Maqsood Ahmad, Inspector Customs he apprehended appellant who was trying to go out of the International Departure lounge of the Airport. Zulqarnain Hasan, Inspector Customs P.W.4 was present when the money was recovered by the Investigating Officer from the toilet of the aircraft.
Statedly, 41 lacs of rupees were recovered from the bag which contained 14 packets P.2/1-14 and bag P.2 contained 33 lacs of rupees in 11 packets P.1/1-11. The currency notes were of the denomination of Rs.1,000 each. These currency notes were taken into custody vide recovery memo.
Exh.P.A. Which was also signed by the witness. He also witnessed the recovery of screw driver P.5 with three bits of different types P.6/1-3, a small note book P.8, Purse P.7, Pants P.8, 2 Shirts P.9/1-2, an empty hand bag P.10, shaving kit P.11 and a Shalwar Qameez P.12/1-2, black purse P.7 from the appellant. The said articles were taken into possession vide memo. Exh.P.B. Passport P.13, I.D. Card P.14, PIA tickets 3 in number P.15/1-3, Health Card P.16, Award Cards PIA P.17/1-2, mobile telephone P.18 and Pak currency and currency of Dubai were also recovered from the appellant in the presence of this witness. These articles were taken into possession vide memo. Exh.P.C. He also signed the recovery memos. Muhammad Rafiq Khan, Security Assistant P.W.5 being a security assistant at Lahore Airport used to conduct search of the aircraft after the arrival of different flights and after the passengers would alight from the aircraft. Statedly he conducted the search of the aircraft in question and did not find anything. He was present when search was conducted by the Customs staff and currency was recovered from the ceiling of the toilet of the aircraft. Maqsood Ahmed, Inspector/I.O. P.W.6, Ali Irtafa, D.S. Customs P.W.7 and Mubashar Nazar, Inspector, P.W.8 conducted formal investigation and submitted the challan. During investigation on 11-1-2001 Mubashar Nazar, Inspector P.W.8 arrested Hamayun Rashid and Maulvi Maroof co-accused of the appellant as well as traced the record of mobile telephone which was recovered from Nadeem appellant. Statedly, telephone recovered from the appellant and his co-accused Hamayun Rashid were issued in the name of one Muhammad Zaman son of Hamayun and from the record of the said telephone number it was established that repeated calls were made between 11-25 a.m. And 12-06 p.m. On these numbers. He also took into possession record P.20/1-14 from the office of PTC vide memo. Exh.P.J.
6. Learned trial Court also examined the appellant under section 342, Cr.P.C. While answering to the questions, Does the above mentioned case property belong to you; why this case against you and why the P.Ws. Deposed against you? Replied as under:-- "I wish that so much could belong to me but the above mentioned money does not belong to me. I did not possess this money nor did I conceal the same. Nor do I claim it nor anybody gave it to me."
"There was confusion all around at the Airport on 7-11-2000. A lot of noise prevailing. The people were running here and there. Out of my foolishness I asked a Government official as to what had happened and there upon I was made to sit down and after sometime this recovery was foisted against me."
' Appellant also made statement on Oath under section 340(2), Cr.P.C. Before the trial Court but he did not produce any other evidence in his defence.
7. Learned trial Court after appraisal of evidence vide judgment dated 16-2-2002 convicted and sentenced the appellant as narrated in the earlier part of the judgment.
8. Learned counsel for the appellant submitted that there was no direct evidence to show that it was the appellant who had concealed the currency in the ceiling of toilet-D of the aircraft; that no incriminating articles were recovered from the appellant during the investigation of this case; thht the contradictions in the statements of witnesses create doubt about the authenticity of the prosecution Case; that the appellant had been falsely implicated in this case by the investigating agency and that in the circumstances the trial Court had erroneously convicted -the appellant.
Conversely, learned counsel for the State while supporting the impugned judgment vehemently opposed the appeal.
9. With the able assistance of the learned counsel for the parties, the record of this case has been gone through. A huge amount of Pakistani currency i.e. Rupees seventy four lacs, was recovered from the ceiling of the toilet-D of the aircraft which had come from Karachi to Lahore on 17-11-2000 under the Flight No.PK 302. The same aircraft was scheduled from Lahore to Dubai under Flight No. PK 209. The appellant travelled from Karachi to Lahore in the same aircraft and was scheduled to travel from Lahore to Dubai in the said flight, as it is apparent from the documents which were recovered from the possession of the appellant during the investigation. The precise allegation against the appellant is that while travelling from Karachi to Lahore he went to the toilet-D of aircraft and concealed currency notes in the ceiling of toilet with the intention to smuggle the same out of the country. Admittedly, nobody saw the appellant concealing the money in the ceiling of the toilet of the aircraft. The statement of Aziz-ur-Rehman P.W.4 is to the extent that appellant spent about 20/25 minutes in toilet and he thinks that the appellant opened the ceiling of the toilet-D of aircraft and put two bags there. Statedly, when he asked the appellant as to what he had been doing in the toilet appellant got confused and moved to his seat. Statement of this witness is absolutely silent as to how many persons used the toilet before or after the said toilet-D was used by the appellant. The record of this case is absolutely silent whether the aircraft was checked by the authorities before it took off from the Karachi Airport. The statement of Aziz- urRehman, Flight Purser P.W.2 shows that he presumed that money was concealed by the appellant because the appellant got confused when appellant was asked by him as to what he (appellant) had been doing in the toilet for 20/25 minutes. Mere presumption of a witness about the involvement of appellant in the commission of this offence is not enough to uphold the conviction. Even otherwise, the record of this case reveals that statement of Aziz-ur-Rehman (P.W.2) was not recorded on the day this F.I.R. Was registered but his statement under section 161, Cr.P.C. Was recorded on the next day i.e. 8-11-2000. The unexplained delay in recording the statement of this witness is yet another factor to doubt the credibility of the prosecution case.
Similarly, in - the complainant Exh.P.G. Prepared by Maqsood Ahmad, Inspector Customs the case of the prosecution was that accused entered the toilet with his hand carry bag but the statement of Aziz-ur-Rehman before the trial Court is absolutely silent in this regard and it give the impression that the appellant entered the toilet empty-handed.
' To connect the appellant with this offence prosecution has also relied upon the evidence of 'recovery of screw driver P.5 along with 3 bits P.6/1-3 at the instance of appellant. As observed earlier that in the absence of sufficient evidence to show that it was the appellant who had concealed the currency in the aircraft, this recovery evidence is weightless. Prosecution has also relied upon the evidence of telephone record which was taken into custody by Mubashar Nazar, Inspector P.W.8 during the investigation. The record of this case reveals that from the mobile phones recovered from the appellant and his co- accused many calls were made between 11-15 and 12-06 but there is nothing on the record to show as to what conversation took place between the appellant and his co-accused when they called each other. The said co-accused of the appellant has already been acquitted by the trial Court and State has not challenged his acquittal.
Admittedly, the appellant had the ticket and travelling documents for Dubai but he had not yet boarded the aircraft nor any boarding ticket was issued in his name when he was arrested.
Statedly when the appellant was taken into custody by the authorities he was getting out of the Briefing Lounge of the Airport. In this view of the matter, if it is presumed that it was the appellant who had concealed the money in the ceiling of the toilet-D of aircraft which had travelled from Karachi to Lahore and the same aircraft was scheduled from Lahore to Dubai flight, even then the act of appellant at the most would be called a preparation for smuggling the currency which, is not an offence as defined under section 156(1)(8) read with section 2(s) of the Customs Act, 1969. In the circumstances, the possibility that the appellant changed his mind and gave up the idea to travel from Lahore to Dubai could not be ruled out.
10. The crux of the above discussion is that the case in hand is full of doubts and in the circumstances the appellant is entitled to get the benefit of the same. Accordingly, the instant appeal is allowed, conviction and sentence of the appellant is set aside and he is acquitted of the charge. The appellant, shall be released forthwith if not required to be detained in another case.