' The appellant was tried and convicted under clause (8) of section 156 (1) of the Customs Act, 1969, and was sentenced to undergo simple imprisonment for 15 months and to pay a fine of Rs, 1 lac or in default to further undergo simple imprisonment for 15 months by the Special Judge, Customs, Karachi vide his judgment dated 8th March, 1979. Aggrieved by the aforesaid conviction and sentence the appellant has come up in appeal before this Court. Briefly the facts of the prosecution case are that the appellant who holds a British Passport, was about to leave Karachi for Hong Kong on 12th January, 1978 when he was intercepted by Mr.-Jafery and other Customs Officers at the Karachi International Airport at about 4-30 a.m. He was asked to declare if he was carrying any contraband articles including currency and precious -stones. Pursuant to this the appellant made a declaration in Form F. M. Under his signature disclosing that he had currency notes of the value of 24 pounds sterling and 775 U. S. $ but in the column relating to jeweler and precious stones, the appellant marked 'MU'. After that the appellant was searched in the presence of Mashirs Mohammad Iqbal and Cardoza but nothing incriminating was secured from his personal search.
However, some documents consisting of passport, air ticket, health card and boarding card were secured from the person of the appellant. The appellant was carrying a handbag with the airline cabin luggage tag on searching which it was found to contain two trousers and a coat with their pockets stitched. From the pocket of the coat the Customs Officer recovered currency notes of 20,000 U. S. $ and six pieces of emeralds.
' From the pocket of one of the trousers currency notes of 10,000 U. S. $ and from the pocket of the other trouser currency notes of 1,900 U. S. $ and 1,150 Pakistani Rupees were secured. From the pyjama which' was also lying in the handbag currency notes of 7,100 U. S. $ were recovered. The above currency notes and goods were seized and a mashirnama was prepared by Anwar Hameed- Jafery, Intelligence Officer, Customs, Karachi. The appellant was then arrested and F. I. R.
Was registered on behalf of the State. The appellant was also served with notice under section 171 of the Customs Act. After the usual investigation a charge-sheet was submitted before the trial Court on 21st June, 1978.
2. The prosecution evidence consists of the testimony of Mr. Jafery, the Seizing Officer who has supported the 'prosecutions case as stated above, P. W. Cardoza, an employee of the Swio Airways, who acted as the mashir and P: W. Nazir Ahmed, a Jeweller by profession who was examined as to the value of the emeralds. P. W. Cardoza has fully supported the prosecution case and has stated that the appellant had checked-in for Hong Kong by Swiss Air flight on the day of the incident at about 4-15 a.m. He had issued the appellant a boarding card and cabin tag for his baggage and then the Customs Officer interrogated the appellant asking him to declare on the Declaration Form .Any currency or precious stones. He has also corroborated the evidence of Mr. Jafery that currency notes and emeralds were secured from the clothes kept in the handbag of the appellant in his presence. The evidence of P. W. Nazir Ahmed is that he has been dealing in emeralds and precious stones since his childhood. The emeralds in this case were referred to him by the Customs Department for evaluation. According to him one piece of the emeralds weighed 3.85 carats whereas the remaining 5 pieces collectively weighed 80 carat. In his opinion the emeralds were of Pakistani Original and the value of the big piece was Rs, 1 lac whereas the value of the other five was Rs, 10,000.
3. The appellant did not deny the recovery of the contraband articles in the manner alleged by the prosecution. However, his defense was that he was not smuggling goods out of Pakistan. As to the currency he stated that he had brought the Dollars with him when he came to Pakistan and was taking them out. He admitted that he purchased the emeralds from Pakistan. As regards Pakistan currency his explanation was that he was carrying this amount so that if he is unable to leave as scheduled he may be able to stay in a hotel at Karachi.
4. The learned Judge of the trial Court has referred to rule 5 of Chapter XVIII of the Exchange Control Manual published by the State Bank of Pakistan whereby it is permissible to take out of Pakistan currency notes up to Rs, 20 in value per person. ' Under rule 8 persons going to any country other than Afghanistan can carry foreign currency notes of the exchange value issued to them by the authorized dealers on their passports. Foreign nationals are permitted to take out within six months from the date of arrival in Pakistan the unspent balance of foreign exchange that was brought in by them at the time of their entry in Pakistan without the approval of the State Bank. Similarly Pakistani nationals who are working or are settled abroad are allowed to take out within 15 days from the date of arrival in Pakistan, the unspent balance of foreign exchange brought in by them. In view of these rules and regulations, so far as the currency secured from the possession of the appellant is concerned, clearly he could take out the said currency only in violation of the prohibitions contained in the foregoing rules. It was not disputed that the stay of the appellant during his current visit of Pakistan was for more than six months period. Under rule 15 of the aforesaid Chapter of the Manual the export of Jewellery or precious stones up to Rs, 1,000 in value is allowed to persons other than those domiciled in Pakistan or India when returning to their own country. Similarly Pakistani nationals are allowed to take out Jewellery or precious stones up to Rs, 1,000 only under rule 14. Under subsection (2) of section 8 of the Foreign Exchange Regulation Act the export from Pakistan of Jeweler or precious stones except with the general or special permission of the State Bank is prohibited.
5.. Now it is not disputed that the appellant was found in possession of unauthorized foreign and Pakistani currency as well as precious stones. The only contention is that the facts established on record do not constitute an attempt in law so that no offence of smuggling as defined in section 2
(a) of the Customs Act, 1969 was committed by the appellant. It was argued that the appellant may have changed his mind before performing the final act of boarding the plane for consummation of the offence. It was also contended that the evidence of P. W. Nazir Ahmed was not admissible as he is not an expert within the meaning of section 45 of the Evidence Act. The last contention has been made in order to challenge the value of the precious stones for the reason that the precious stones of the value up to Rs, 1,000 could validly be exported without permission.
6. 1 will first take up the consideration of the last-mentioned contention. Section 45 of the Evidence Act defines an expert as a person specially skilled in foreign law, science or art etc. Accordingly the test for judging the competency of an expert is to determine as to whether h is skilled and has adequate knowledge in a particular calling to which they enquiry relates. It is for the: Court to decide the question of competency A and fitness of such witness and the test is to see if the witness is sufficiently qualified by experience. P. W. Nazir Ahmed has stated in hi; deposition that he is a partner in a jeweler shop and has been doing the jeweler work since his childhood. He has dealt in emeralds and other precious stones. It was argued that these facts do not make the witness an expert witness to make his opinion admissible under section 45 of the Evidence Act.
Learned State counsel on the other hand, submitted that the witness has sufficient experience in dealing with precious stones of the nature referred to him and could, therefore, express opinion as an expert as to the value of the stones concerned. It has not been pointed out to me as to what qualifications an expert of this nature should possess. Normally an experienced jeweller should be able to give a fairly correct appraisal of the value of precious stones. The experience in the field claimed by the witness was not challenged in the cross-examination., I am, therefore, inclined to hold that the evidence of the witness was admissible. In any case the question is not very material as the emeralds formed only one of the items of the contraband articles for which the appellant was charged. Clearly the foreign currency admittedly in possession of the appellant was also a prohibited item and the offence could be sufficiently established against the appellant even if the emeralds were not proved to be of the value of more than Rs, 1,000. This, therefore, brings me to the remaining argument of the counsel that the facts on record do not constitute an attempt on the part of the appellant,
7. The only argument in this behalf is that the appellant could have changed his mind before finally embarking upon his journey out of Pakistan. It is in evidence that the appellant had purchased a ticket for going to Hong Kong, he checked-in at the Swiss Airline Counter, he was given the boarding card and the baggage tags and finally he was asked by the Customs Officer to make a declaration. In this declaration in writing which is on record as Exh. 31, the appellant suppressed the information regarding the huge quantity of foreign currency in his possession and the precious stones carried by him. Having regard to all these facts it is clear that but for the interception by the Customs Officials the appellant c had done everything in his power to take out of Pakistan the contraband articles. The Court is entitled to infer the existence of a fact regard being had to the common course of natural events and human conduct. There is nothing on record to indicate that the appellant could have retraced his steps from the commission of the offence. There is, therefore, no force in this submission that the evidence does not establish the case of attempt to smuggle.
Under section 2 (s) of the Customs Act, 1969 the offence of smuggling includes an attempt, abetment or connivance of bringing in or taking out of prohibited goods. I, therefore, hold that the offence has been brought home to the appellant.
8. Learned counsel for the appellant finally assailed the quantum of sentence awarded by the trial Court. He argued that the facts show that the appellant only committed a technical offence. In this behalf counsel pointed out that so far as the currency is concerned, the stay of the appellant in Pakistan exceeded the prescribed limit of 6 months by 12 days. Further he referred to the fact mentioned in the F.
1. R. That the money and the stones belonged to one Mohammad lqbal of Lahore and the appellant was a mere carrier for the purpose of conveying the goods to one Irfan at Hong Kong. The only benefit that the appellant would have derived from the smuggling venture was $ 1,000 as mentioned in the mashirnarna (Exh. 3-A). Counsel referred to Adamjee Elmer v. State of Bombay (1) in which the appellant was convicted under sections 7 and 8 of the Essential Supplies (Temporary Powers) Act, 1946 and was sentenced to 6 months' R.
1. As well as fine of Rs, 15,000. The Supreme Court of India while emphasising the need for maintaining proportion between the offence and the penalty observed : ."In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence and where a substantial term of imprisonment is inflicted an excessive fine should not accompany it except in exceptional cases". In Mohammad Sharif v. Crown (2) view was held that where fine is beyond the means of an offender to pay, it ought not to be inflicted merely in order that a substantive period of imprisonment in default should be suffered by the accused. Similar view was held in Jagpat v. State (3). The principles enunciated in the aforesaid decisions by the learned counsel at the bar are valid and useful considerations for determining the quantum of sentence to be awarded in a case but as I have already held question of sentence has to be determined in the facts of each particular case and no hard and fast rule can be laid down. There is no material on record as to the D financial capacity of the appellant and it has not been argued that he is unable to pay the fine imposed upon him. However, having, regard .To the
(1) AIR 1952 SC 40 (2) PLD 1955 Lab. 650
(3) A 1 R 1957 All. 764 ' circumstances pointed out by the learned counsel of the appellant, in my opinion a sentence of simple imprisonment for a period of one year and a fine of Rs, 25,000 or in default further simple imprisonment for 3 months will adequately meet the ends of justice.
9. In the result, this appeal is dismissed with the aforesaid modification in the sentence.