1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This appeal is directed against the judgment dated 28- 3-2001, whereby the learned Special Judge (Customs and Taxation), Karachi, has convicted the appellant for the commission of offence under section 156(1)(8) of the Customs Act, 1969 and has sentenced him to suffer imprisonment already undergone as under-trial prisoner and to pay fine of Rs,30,000, in default to suffer R.I. For four months.
2. ' The relevant facts giving rise to this appeal are that the appellant was a member of crew of PIA Flight PK-731 on 14-12-1993. Mr. Orangzeb Shah, the Preventive Officer Customs received information through Assistant Collector, Incharge of the Terminal that Abdul Khaliq Chohan is smuggling Pakistani currency while embarking the PIA flight. When the appellant reported at the customs counter, the Preventive officer recovered Pakistani currency in the sum of Rs,1,67,500 in the shape of currency notes of Rs,1,000 and R.500 denomination. After completion of investigation the appellant was challaned to face trial. He pleaded not guilty to the charge and the prosecution examined P.W.1, Orangzeb Shah, P.W:2, Subhash, P.W.3, Ibrahim Bhatti and P.W.4 Shamim Ahmed Khan, the Investigating Officer.
3. ' The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations and stated that the baggage of the crew members were mixed up and therefore, he has been implicated without any justification.
4. ' The learned trial Court framed the following points for determination:--
(1) Whether on 14-12-1993 accused Abdul Khaliq Chohan attempted to smuggle Pakistani currency at Rs,1,67,500 out of Pakistan by PIA Flight No,PK-731?
(2) If yes, what offence he committed?
5. ' The learned trial Court decided Point No,1, in affirmative and held that he committed an offence punishable under section 156(1)(8) of the Customs Act, 1969 which pertains to smuggling and awarded Conviction and sentence as narrated above.
6. ' I have heard Mr. Mehmood A. Qureshi, learned counsel for the appellant and Mr. Mehmood Alam Rizvi, learned Standing Counsel for the State.
7. ' The learned counsel for the appellant has stated that the prosecution has utterly failed to bring home the guilt to appellant. He has taken me through the entire prosecution evidence on record.
8. He submitted that according to P.W.1. Orangzeb Shah, P.Ws. Ibrahim Bhatti and Subhash, the Cleaners were called to witness at the time of examination of baggage of crew. He further stated that while examining the handbag of the accused he secured a bundle of currency notes wrapped in the polythene bag. The currency notes were counted and found in the sum of Rs,1,67,500. A memo. Exh.3/B was prepared and an inventory was also prepared. A photocopy of the inventory was produced at trial. The defence counsel raised objection to the production of photocopy of the inventory instead of original one. The entire case property was not produced before the trial Court and one note- of Rs,1,000 denomination and the other currency note of Rs,500 denomination only were produced. He submitted that under the law prevailing at the relevant time anybody could take out of Pakistan the Pakistani currency in the sum of Rs,3,000 and the prohibition was in respect of the amount in excess of 3,000. The learned counsel for the appellant submitted that since the prosecution produced an amount of Rs,1,500 only and the remaining currency notes were not produced therefore, the prosecution has at the most established the recovery of Rs,1,500 from the possession of appellant which is not 'an offence. He has further drawn my attention to the cross- examination of P.W. Orangzeb Shah, who stated that he had drawn two samples of currency notes from the property on the next date of recovery when he deposited the same in State warehouse of the Customs Department. He further admitted that the recovery was allegedly made on 14-12-1993 but the cloth bag containing samples of currency notes bears the date 16-12-1993. He also admitted that the baggage of the crew was brought on the trolleys by the PIA staff collectively and the crew members reached together along with the baggage. He has further admitted that the occurrence took place at 4-45 p.m. But in the F.I.R. The time of occurrence is shown as 1-45 p.m. He also conceded that the second page of the inventory is not signed by any officer. He further conceded that the appellant was holding a suit hanger and plastic cane in his hands from which nothing was secured.
9. ' The learned counsel for the appellant has further pointed out that P.W. Subhash, the Mashir of recovery has stated in the cross-examination that the sample was not separated from the entire property in his presence and the seized property was not sealed in his presence. He has further conceded that the serial number of the currency notes and description are not mentioned in the memo. And that the baggage of appellant was already searched when he was called. He further conceded that his signature on the memo. Was obtained in the office after about 1-1/2 hours of the recovery. He was informed by the Seizing Officer that the incident took place at 4-45 p.m. He was called after 1-1/2 hours of the incident. He further conceded that the Seizing Officer informed him that the currency notes were secured from the accused. The learned counsel has further referred to the cross-examination of second Mashir Ibrahim Bhatti, who stated that the incident took place after 6-00 p.m. And he cannot say if the contents of Mashirnama were read over and explained to him. He further stated in the cross-examination that cloth bag in which the sample currency notes were produced in Court did not bear his signature and the seal. He has further conceded that when he came at the counter, the bag was already opened and the currency was lying out of it. He further conceded that Orangzeb Shah, informed him that currency notes were recovered from the possession of accused and his signature was obtained in the office.
10. ' On the basis of above contradictions and discrepancies in the statements of material witnesses, the learned counsel for the appellant contended that prosecution case is full of contradictions on which no reliance can be placed.
11. ' The learned State counsel initially supported the impugned conviction and sentence but he was not able to rebut the contentions raised by the learned counsel for the appellant and was not able to reconcile the material discrepancies in the statements of witnesses.
12. After careful examination of the contentions raised by the learned counsel for the appellant and the prosecution evidence, I am of the opinion that the prosecution case is not free from doubt on account of material discrepancies in the testimony of prosecution witnesses. I am, therefore, of the considered opinion that the learned trial Court fell in error in deciding the Point No,1, in affirmative and thereby recording the conviction and awarding sentence.
13. ' The impugned judgment is not in conformity with the principle of safe administration of criminal justice and consequently, the impugned judgment, conviction and sentence awarded to the appellant are set aside. The appellant is acquitted. The appeal is allowed accordingly.
14. ' After hearing the learned Advocates for the parties in the morning the appeal was allowed by a short order. These are the detailed reasons in support thereof.