' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This acquittal appeal is directed against the judgment dated 6-1-2005, passed by the learned Special Judge (Customs & Taxation), Karachi, in case No,52 of 2002, whereby all the three respondents/accused have been acquitted.
2. Briefly stated the relevant facts are that the Customs officials intercepted Suzuki Hi-Roof, near Old Subzi Mandi Karachi, and recovered 189 Kgs. Of Silver Rods. Accused Muhammad Nauman was found sitting on the driving seat and accused Muhammad Haroon was shifting six cotton bags from Suzuki Hi-Roof to a Coach, bound for Quetta. Accused Abdul Razzak is alleged to have supplied this gold to accused Muhammad Haroon and Muhammad Nauman for transporting to Quetta. The Customs officials intercepted the Hi-Roof and recovered the silver on a tip off that smuggled silver is likely to be smuggled to Iran via Quetta.
3. All the three persons were challaned to face trial for the offences punishable under clauses (8) and (89) of section 156(1) of the Customs Act, 1969. The respondents/accused pleaded not guilty to the charge.
4. The prosecution examined P.W.1 Jamil Ahmed, the Mashir of recovery and P.W.2 Saeed Farooqi, the Investigating Officer. They produced the Mashirnama of recovery and notice under section 171 of the Customs Act, and receipt from Abdul Razzak to the effect that the silver was being sent through Muhammad Haroon to Quetta for delivering to Haji Anwer.
5. The accused persons in their statements under section 342, Cr.P.C. Denied the fact that the silver recovered from them was smuggled. They stated that they were in lawful possession of the same.
They examined D.W.1, Irfan in defence. He stated that he is a Salesman with M/s Shoukat & Shoukat who are exporters of gold and silver. He further stated that on 23-8-2001, accused Haroon had purchased the silver bars from their office and the receipts for the sale were issued, which he produced as Exh.9B and 9C.
6. The learned trial Judge after examining the entire evidence, acquitted all the three accused persons holding that the prosecution has failed to prove its case against the accused persons beyond the shadow of doubt.
7. The State, being aggrieved preferred acquittal appeal, which was admitted to consider the contention that the learned trial Judge erred in appreciating the evidence brought on record in acquitting the respondents and in holding that the accused persons were in lawful possession of the smuggled silver. At the time of admission of appeal, it was further contended that the receipt produced by the defence witness is not signed by him and the documents produced by the accused/respondents were afterthought and that there was admission on the part of accused in respect of the possession of silver.
8. I have heard Mr. S.M. Aamir Naqvi, learned counsel for the Appellant/State and Mr. A.M. Naqvi, learned counsel for the respondents/accused.
9. Mr. S.M. Aamir Naqvi, has reiterated the contention raised by him at the time of admission of the appeal for regular hearing. He has contended that the respondents Nos.1 and 2 have admitted that the silver was recovered from their possession and respondent Abdul Razzak has admitted that he had sent the same through respondent No,1 for taking it to Quetta and deliver to Haji Anwer. He has further submitted that the respondents failed to discharge the burden that the silver was lawfully acquired by them and was not smuggled one. He has taken me through the evidence of witnesses and has drawn my attention to the cross-examination of P.W.1, Jamil Ahmed in which he has denied the suggestion that there was no information with the Customs officers to the effect that silver shall he smuggled from Karachi via Quetta to Iran, which has been smuggled into Karachi.
This witness further stated in cross-examination that the accused verbally told them that the silver was not smuggled but they could not produce any document therefore, silver was seized. P.W.2 Saeed Farooqi has deposed on the point of recovery of silver from the accused/respondents Nos.1 and 2 and handing over the silver by Abdul Razzak respondent No,3 to respondents Nos.1 and 2. In cross-examination he denied the suggestion that they have no information whatsoever of smuggling in this case. He has further stated in cross-examination that representative of All Sindh Saraf and Jewellers Association met him and his superiors and they informed them that the silver sized was not smuggled and that they had also produced receipts of M/s. Shoukat & Shoukat of the purchase of silver seized in this case. He has stated that he did not examine any person from Shoukat & Shoukat. He further stated that the person from Shoukat & Shoukat had informed that the silver was not in the shape in which it was recovered. He further stated that he obtained the receipt of Shoukat & Shoukat from the bank and not from Shoukat & Shoukat which was subsequently verified by M/s. Shoukat & Shoukat as their receipt but has simultaneously stated that it was not in the shape in which it was recovered.
10. Mr. A.M. Naqvi, learned counsel for the respondents has supported that acquittal of the respondents and has stated that there is no evidence on the point of smuggling silver inside Pakistan or smuggling the same outside Pakistan.
11. I have carefully considered the contentions raised by the learned Advocates for the parties and the material available on record.
12. Mr. S.M. Aamir Naqvi, has candidly stated that although the respondents were challaned to face trial for the offences punishable under clauses (8) and (89) of section 156(1) of the Customs Act, 1969, but he is not pressing for the conviction for commission of offence under clause (8), but he is pressing the conviction for commission of offence under clause (89) of subsection (1) of section 156 of the Customs Act, 1969, only, for the reason that the prosecution did not produce any evidence that the respondents had smuggled silver inside Pakistan or had taken any step to smuggle it outside Pakistan. His main contention is that the respondents were found in possession of silver for which there was information that it was smuggled one and therefore, it was for the respondents to discharge the burden that it was not smuggled silver.
13. No doubt under the Customs Act 1969, a person found in possession of silver or gold is required to discharge the onus of proving that the gold or silver bullion was obtained by lawful means and not by smuggling. However, the salutary principle of the criminal administration of justice approved by this Court and the Hon'ble Supreme Court in large number of cases is that in criminal cases the initial burden is always on the prosecution and once the initial burden is discharged, thereafter the onus shifts to the accused person to prove that the goods in their possession were acquired by lawful means. The expression used in clause (89) of subsection (1) of section 156 of the Customs Act, is also indicative of the fact. It is provided in Column No,1 of clause (89) of subsection (1) of section 156 of the Customs Act, that if any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, or removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods. On bare perusal of the above provisions shows that any of the acts enumerated above, have to be shown in respect of smuggled goods or in respect of such goods for which there may be reasonable suspicion that they are smuggled goods, he shall be held to have committed offence. Thus, the initial burden is on the prosecution to show that the goods recovered from B the possession of any person were either smuggled or there were reasonable suspicion for holding the same as smuggled goods. Mere words from the Investigating Officer and Mashir to the effect that they received information that the smuggled silver is going to be smuggled from Pakistan to Iran via Quetta, will not provide sufficient substance for holding the silver as smuggled or to be reasonable suspected to be smuggled. The word reasonable used by legislature is very important and has to be kept in view. Every suspicion would not be sufficient to saddle a person with the onus to prove that it is not smuggled. The initial burden is always on the prosecution which is required to produce some evidence from which a reasonable suspicion may be inferred. The word, "reasonable", has not been defined in any law but it has been defined by the superior Courts to mean the circumstances or evidence which is sufficient in ordinary course for a reasonable person to accept the existence of the fact. I have found that, there is not an iota of evidence on the record to show that either the silver was smuggled or could be held to be reasonably suspected to be smuggled. Mere information that some silver was going to be smuggled without establishing the nexus of that information with the silver recovered shall not be sufficient to hold that there was reasonable suspicion for holding the silver recovered from the respondents was smuggled one.
The possibility cannot be ruled out, that the silver for which information was received was already transported to Quetta, as the information does not disclose any description of the silver or as to when it was smuggled and by whom inside Pakistan. If there are more than one possibility then possibilities in favour of the accused is always to be preferred, for the simple reason that benefit of doubt is never to be extended to the prosecution and is always to be extended to the accused. It is also to be kept in view that the possession of any E quantity of gold or silver in bullion or any shape, per se, is not an offence under any law in this country.. The possession of smuggled gold or silver is an offence, therefore, in order to attract the penal provisions contained in clause (89) of section 156(1) of the Customs Act, it is incumbent for the prosecution to discharge the initial burden that silver or gold is smuggled or there are reasonable grounds to suspect it as smuggled and then only the burden shall shift on the person in possession of such gold or silver.
14. For the foregoing reasons, I am of the opinion that the learned trial Court was fully justified in acquitting the accused persons and further keeping in view, the principle that a judgment of acquittal in a criminal case gives rise to a double presumption of innocence and in such case the prosecution has to show very strong evidence justifying interference by appellate Court, which is lacking in this case, I am of the considered opinion that no case has been made out for setting aside the judgment of acquittal, which is hereby upheld and the appeal stands dismissed.
15. All the three respondents are on the bail and their bail bonds stand discharged.