' This appeal arises out of the judgment and order passed by the learned Special Judge, Customs, Karachi dated 23-10-77 convicting the appellant under clause (8) of section 156 (1) of the Customs Act, 1969, and sentencing him to undergo imprisonment till the rising of the Court and to pay a fine of Rs, 10,000, or in default to further undergo R. I. For 12 months.
2. Briefly the prosecution case is that in consequence of secret information on 2-5-76 the appellant was intercepted when he was about to leave at the International Departure Lounge of the Karachi Airport for Hong Kong by Lufthansa flight. The Intelligence Officer of the Customs Mr. Syed Naseer Hyder asked the appellant to declare, if he was carrying any foreign currency or precious stones.
The appellant declared U. S. $500 in traveller cheques issued to him by the State Bank of Pakistan and gave such declaration in writing on the prescribed form. Upon his personal search in presence of 2 mashirs, namely, Ghulam Hussain and Sadiq Malik, however, the Customs Officer recovered from his possession U. S. $1460 in cash and 5 packets of precious stones worth about Rs, 4,000. He prepared the mashirnama and also secured from the appellant the passport and other travelling documents as well as air ticket, boarding card etc. He then lodged the F. I. R. On behalf of the State.
The case was investigated by Messrs A. H. Khokhar and Iftikhar Ahmed and a complaint was lodged in Court by Mr. A. H. Khokhar, Assistant Director, Customs Intelligence on 5-1-77. In support of the case the prosecution examined P. Ws. Mr. Ghulam Hussain, Mr. Syed Naseer Hyder, Mr. Amjad Hussain Khokhar and Mr. Iftikhar Ahmed, Investigating Officer.
3. At the trial the appellant admitted his presence at the relevant time at the Airport for the purpose of leaving for Hong Kong by the flight in question and that he was intercepted. He also admitted that he was asked to declare foreign currency or precious stones that he may be carrying and that he had declared U. S. $500. He, however, denied that his serach had yielded the contraband currency and precious stones as alleged by the prosecution. He pleaded his innocence and his defence was that Mr. Naseer Hyder had enmity with his father on account of which the former had searched the shop of his father from which some stones were recovered and foisted upon him along with the U. S. Currency. He also stated that the stones were immitations and were only semi- precious. The appellant in his defense also examined his father D. W, Muhammad Umer.
4. The prosecution case rests upon the testimony of the Seizing Officer Mr. Naseer Hyder and mashir of search Ghulam Hussain. On the evidence on record the trial Court accepted the plea of the appellant that Mr. Naseer Hyder bore grudge against the father of the appellant but was of the view that this was not sufficient to , disbelieve the prosecution case as independent corroboration was provided to the evidence of Mr. Naseer Hyder by the testimony of mashir Ghulam Hussain. The finding of the trial Court as to the enmity existing between the Seizing Officer and the father of the appellant has been recorded in the following passage of the judgment: "In spite of the denial by Naseer Hyder there appears to be sufficient evidence on record to conclude, that in late sixtees the father of the present accused had moved some applications and complaints before the authorities against Naseer Hyder. Under the circumstances the rules of prudence require that the conviction of the accused cannot be based on the evidence of the P. W.
Naseer Hyder alone, unless it is corroborated by some independent evidence."
5. It was contended on behalf of the appellant that ..Naseer Hyder was palpably a false witness as he falsely denied the matter of record which established his enmity with the appellant's father and that .The learned Judge did not consider the full impact of this fact on the prosecution case which was engineered to wreak vengeance upon the appellant. In order to appreciate this contention it is necessary to state some further facts appearing in the evidence. It is stated by P. W. Iftikhar Ahmed, the Investigating Officer that on the same day the search of the house and shop of the father of the appellant was taken in which he alongwith other Officers had recovered some .Precious stones from the shop of the appellant's father. But no, mashirnama was prepared regarding this recovery and there were no mashirs of search. These precious stones were subsequently returned to the appellant's father on 18-5-76-and receipt was obtained from him on the Note Sheet (Exh. 8/A). A Detention Memo. (Exh. 7/C) was prepared which, however, does not disclose the weight or quantity of the stones secured nor are there particulars mentioned in the receipt. The version of P. W. Naseer Hyder is that the raiding party was organized by the Assistant Director Khokhar who supervised the raid personally and searched the house and shop of the father of the appellant. He admitted that he was a member of that raiding party. According to him there were two mashirs of search but he did not know their names. From the aforesaid statement the witness tried to give the impression that he had nothing to do with the initiation and organization of the raid resulting in the interception of the appellant. But P. W. A. H. Khokhar stated in his evidence that it was Mr. Naseer Hyder who conveyed to him on telephone that certain spy information was received by the former, as a result of which he had directed Mr. Naseer Hyder to proceed to the Airport for detection of the offence. In his cross-examination he stated that he cannot give the colors of the precious stones recovered from the shop and that no mashirnama of recovery of these stones was prepared.
Learned counsel for the appellant argued that the aforesaid evidence clearly shows that some of the stones secured from the shop of the appellant's father were foisted on the appellant. In the behalf he referred to the F. I. R. In which no description or number of the allegedly seized precious stones from the appellant was mentioned. The aforesaid circumstances appearing in the evidence clearly raise serious doubts about the validity and bond fides of the search held by the Customs Officers in the house and shop of the appellant's father. This assumes special significance in the background of the manner in which the father of the appellant was prosecuted on an allegation of smuggling of huge quantity of silver in the year 1968. From the judgment of the City & Additional District Magistrate, Karachi in Case No, 1309/1970 (Exh. 11/A) produced by D. W. Muhammad Umer the father of the appellant, it appears that the defence of Muhammad Umer was that he was involved in a false case by Customs Officers Messrs Naseer Hyder and S. K. Rua. According to him in that case his son the present appellant was also shown as co-accused in the interim challan but his name was excluded from the final challan on receipt of illegal gratification. In that case Muhammad linter' was acquitted on 19-3-71.
6. Learned counsel for the appellant also assailed the testimony of mashir Ghulam Hussain. He pointed out that the names of this witness and the other mashir were not disclosed in the F. I. R.
Although the same was registered after the seizure when the complainant knew about their names. He referred to the mashirnama of the seizure in which also the names of the mashirs were not mentioned in the body of the memo. Which contains only the signatures of the two mashirs at the end. Counsel argued that this was deliberately done in order to secure the men of confidence who could support the prosecution case. The argument was that no reliance can be placed on the evidence of masher Ghulam Hussain in view of the fact that his name was not disclosed in the F. I.
R. Reference was made to Khalil v. State (1), where it was observed: "The Court may be inclined to consider the statement of a witness whose name does not appear in the First Information Report, as truthful, but the safer course is to keep his statement out of consideration."
In Muzaffar All v. State (2) and Mamoon v. State (3), also similar view was taken in Additional Advocate-General, West Pakistan v. Abdul Qadir (4), the High Court of Sind & Baluchistan, Karachi in a case of smuggling under Sea Customs Act discarded the evidence of the Customs Officer and the mashirs whose names were not mentioned in the F. I. R. As unreliable and unsafe for sustaining a conviction. Although this is not a rule of law but rule of prudence, in the facts of this case having regard to the background of A enmity with the Seizing Officer, I have come to the conclusion that it will be unsafe to, sustain the conviction of the appellant on the evidence of P. W. Ghulam Hussain.
7. In view of the foregoing, giving benefit of doubt I acquit the appellant and allow his appeal. The conviction and sentence are accordingly set aside.
(1) PLD 1956 Lah. 840 (2) PLD 1964 Lah. 34
(3) PLD 1962 Kara 800 (4) 1972 P Cr. L J 809