' The appellant who is an Indian National" has been convicted by the learned Special Jadge, Customs, Karachi under Clause 77 (i) of section 156(1) of the Customs Act, 1969 and sentenced to suffer Simple Imprisonment for one month. The appellant has also been convicted under Clause
(8) of section 156(1) of the Customs Act, 1969 and sentenced to suffer Simple Imprisonment for 11 months and to pay a fine Rs, 2 lacs or in default to suffer further Simple Imprisonment for 2 years.
The appellant has appealed against his covictions and sentences.
2. The prosecution case is that information was received that a passenger-in-transit would be arriving at the Karachi Airport from Hong Kong by Lufthansa flight to smuggle a huge quantity of precious stones. Pursuant to this information on 29th May, 1979 the complainant Mr. Ghufran Khan, Senior Preventive Officer, Customs was posted on duty at the International Arrival Lounge of Terminal No, 1 at the Karachi Airport. At about 5 a. m, the complainant located the appellant who had arrived by Lufthansa Flight No, LH-641 and was found nervously waiting in the Arrival Lounge near the Plant Quarantine holding a handbag. The appellant was interrogated by the complainant as to whether he was in possession of any contraband precious stones but he replied in the negative. Thereupon the appellant was asked to surrender his handbag for examination. Upon this instead of tendering the handbag for examination the appellant started running towards the Exit Gate. He was, however, followed and stopped at the Gate. His bag was then examined in presence of mashirs Qasim Nayyar Fatmi and Mohammad Ali Khan and was found to contain white gold and yellow gold jeweler studded with precious stones and diamonds, the approximate value of which has been estimated at Rs, 29,25,720. The complainant then seized the jewellery and the diamonds separately kept in the bag and prepared the inventory in presence of the same mashirs. Upon the personal search of the appellant were secured a passport and an airline ticket in the name of the appellant, The complainant also secured 8 invoices from the handbag. The appellant was then put under arrest and was served with notice under section 171 of the Customs Act, 1969. The F.
1. R. Was then registered on behalf of the State. The complainant also obtained the passenger manifesto from the Lufthansa and Kuwait Airlines which disclosed that the appellant had arrived from Hong Kong by Lufthansa Airways. However, the manifest of the Kuwait Airways did not disclose the name of the appellant as a passenger who was to leave for Kuwait by Kuwait Airways on that flight. On the same day Ch. Mohammad Rafique, Preventive Officer took up the investigation of this case. He examined the aforesaid mashirs and Customs Officers concerned with the seizure. He then challaned the appellant for trial in the Court of the Special Judge.
3. In support of their case the prosecution examined P. Ws. Ghufran Khan, Syed Qasim Nayyar Fatmi and the Investigating Officer Ch. Mohammad Rafique, who have supported the prosecution allegations.
4. The appellant admitted his presence in the Arrival Lounge at the relevant time. His case is that he is a bonafide businessm an being the sole proprietor of M/s. Diamex International, Hong Kong dealing in diamonds, precious jewellery. Precious and semi-precious stones, On the relevant date he was travelling from Hong Kong to Kuwait carrying the precious merchandise for his customers in Kuwait, Doha and other Middle East Countries. Since there was no direct flight from Hong Kong to Kuwait he had to change planes at Karachi to catch a flight of the Kuwait Airways which was due to leave at 6.30 a. m. For which he held a confirmed seat. On arrival at Karachi he was conducted to the Arrival Lounge by the airline staff in order to identify his baggage which was delivered on the Conveyor Belt. His defence is that he was a transit passenger and had no intention to smuggle any contraband goods into Pakistan. He admits that he was questioned by a person in plain clothes as to the contents of the handbag and that he correctly informed the said person that he was carrying precious diamonds and jeweler in the bag personally to Kuwait and other Middle East countries. The appellant has asserted that he never moved away from the Conveyor Belt area until he was taken away by the gentleman who interrogated him representing to be a Customs Officer.
The appellant also produced a number of documents along with his statement in writing and also examined 4 defense witnesses. Their names are (1) Jalal Ahmed, Manager Insurance, Mackinnon Mackanzie & Company, Karachi ; (2) Mohd. Saeed Akhtar Qureshi, Traffic Assistant, Lufthansa Airlines, Karachi Airport, Karachi ; (3) Najmul Mukhtar Mirza, Traffic Officer, Kuwait Airways, Karahci Airport, Karachi ; and (4) Abdul Samad, businessman from Kuwait.
5. Now as stated by the learned trial Court, it is an admitted fact that on the relevant date and time the appellant had arrived from Hong Kong and was found present in the Arrival Lounge by the complainant. It is also an admitted fact that the appellant was carrying a handbag which contained the jewellery and the precious stones. It is also established on the record that the appellant was a transit passenger holding on O.K. Ticket for Kuwait by Kuwait Airways flight which was due to leave Karachi at 6-30 a.m. On the same day. Finally it is also admitted that the complainant contracted the appellant and interrogated him as to the contents of his handbag.
However, the learned Special Judge disbelieved the evidence of the defence witnesses that the appellant was brought to the Arrival Lounge by the Airline staff and placed reliance on the testimony of the complainant and the mashir Qasim Nayyar Fatmi on the basis of the circumstances that the appellant was found present in the Arrival Lounge where he was not supposed to be present. The second circumstance on which the learned trial Judge placed great reliance is that the appellant chose to take the connecting flight at Karachi although Pakistan was not endorsed as a country for which his passport was valid and consequently he had no Visa for Pakistan. It is in the evidence that Lufthansa has no direct flight from Hong Kong to Kuwait but a passenger between these two points can get a connecting flight in Singapore, Kualampur, Bangkok, Bombay or Karachi. The learned trial Judge has taken the view that it is natural for a person to choose a flight touching his own country so that in case the flight is delayed for any reason, he would have no trouble going out of the airport and also meet his relatives or friends. The learned Judge held that there appears no reasonable explanation as to why the accused chose such a flight in which he had to change planes at Karachi.
6. Now the prosecution case rests on the testimony of the two witnesses, namely, the complainant and the mashir Syed Qasim Nayyar Fatmi. The learned counsel for the appellant assailed the evidence of these two witnesses as untrustworthy or at any rate unsafe for being made the sole basis for conviction. He urged that the Central Board of Revenue Notification No, S. R.O. 603(1)/73 dated 24th April, 1973 published in the Gazette of Pakistan, Extraordinary, dated 28th April, 1973 provided for very handsome rewards for Customs Officers responsible for detention of offences and, therefore, the motivation of financial gain in the seizure operation cannot be ruled out. At any rate the Court has to be on guard to scrutinize and assess the evidence of the Customs Officers with utmost care. It was finally urged by the learned counsel that the trial Court erred in discarding the testimony of the defence witnesses and its impact on the prosecution evidence. As to P.W.
Qasim Nayyar Fatmi it was pointed out that he is an employee of the Plant Quarantine Department at the Airpott and was not expected to keep a watch on the incoming passengers. At the most he could have been called to witness the search and seizure. His evidence is that he had seen the appellant standing near his office and had overheard the conversation between the appellant and the complainant. He also stated that he saw the appellant rush towards the Exit Gate but he was followed and intercepted. Learned counsel for the appellant pointed out that this witness was contradicted on the point that he had stated in his statement to the Investigating Officer that the appellant started running after his interrogation by the complainant. The Investigating Officer Ch. Muhammad Rafique has stated in his leposition that the mashir did not state before him about the appellant rushing to the Exit Gate. If the evidence of the conduct of the appellant in trying to rush out of the Arrival Lounge is excluded from consideration, he remaining part of the evidence of the mashir only relates to the presence the appellant in the Arrival Lounge near the Plant Quarantine Department. This circumstances will be considered later alongwith the question of the presence of the appellant in the Arrival Lounge. So far as complainant Ghufran Khan is concerned, he stated that on the relevant date and time he was posted on duty at the International Arrival Lounge of Terminal No, 1 at Karachi Airport. It was pointed out that the complainant had admittedly received secret information that a passion grin transit would smuggle huge quantity of precious st,,nes from Hong Kong by Lufthansa flight. It was argued on behalf of the 'appellant that if the complainant had such information then there is no plausible explanation why the complainant was posted at the Arrival Lounge and not in the Transit Lounge if there is any at the Airport. The complainant further stated that the appellant had told him that he was a passenger in-transit. Indeed, even on the notice served by the complainant on the appellant under section 171, Customs Act, the appellant boldly endorsed the words "I am not a smuggler. .1 was in transit going to Kuwait". The witness further admitted that the suit-case of the appellant had a baggage tag showing its destination as "Kuwait" and the appellant's ticket showed that he had a confirmed seat for Kuwait.
He also admitted that there is no direct flight of Lufthansa Airline from Hong to Kuwait. He further admitted that some time the baggage of transit passengers also comes on the Conveyor Belt along with the baggage of the incoming passengers although he denied that on the day of the incident such baggage was brought in. He, however, admitted that there is no separate Belt for transit passengers and he categorically denied any knowledge whether all the baggage of transit passengers of Lufthansa flight had come on the Conveyor Belt in the Customs Hall. It was pointed out that the reply of the witness was not in the negative but the witness has pleaded lack of knowledge. Finally the witness said that the appellant was attempting to go out of the Exit Gate. The Investigating Officer, Ch. Muhammad Rafique also admitted that the appellant was a transit passenger. He further stated that it is the duty of the airline staff to bring the transit passengers from the aircraft to the Transit Lounge. He said that on the day of incident 12 transit passengers landed by Lufthansa flight but he could not say where those passengers were taken by the airline officer. He made no enquiries regarding this matter from the Lufthansa Airways or Kuwait Airways.
7. The appellant in his statement has relied upon the recovery of the invoices from the bag which contained the goods in question. All these documents are dated 28th May, 1979. In two of them the name of the consignee is M/s. Haji Ali Arbash & Sons, Abdullah Al-Salam Street, Kuwait. It is mentioned in these documents that the goods were being carried personally by the appellant. In the remaining 4 invoices in the column for the name of the consignee, the name of the appellant is mentioned and against the column relating to terms the words "on sale or return basis" are mentioned. These invoices also say that the goods were being personally carried. All the invoices mention that the goods were covered with insurance by Gold Mine Insurance Company Limited. It is important to bear in mind that these documents were produced by the prosecution and the complainant admitted that they were secured from the handbag from which the precious goods were recovered. The importance of these documents will become obvious from the defence evidence. P.W. I Jalal Ahmed is' the Manager Insurance, Mackinnon Mackanzie & Company, Karachi.
He ,has stated that the Gold Mine Insurance Co. Ltd., Hong Kong and Gilman Insurance Company, Hong Kong are the principals of his company. He has produced the policy issued on 29th May, 1979.
By Cinema & Co. Ltd. Which provided all risks insurance cover note in respect of the goods carried by the appellant This document shows its validity period with effect from 28th May, 1979 for two weeks in respect of diamonds and/or Jewellery and/or the like. The situation described in this note states : 'Hong Kong to Middle East by personal conveyance by Mr. PAL Butani per Lufthansa flight.
No, 6 and return thence in transits at destinations including whilst in hotel deposit box and/or bank vault. Among the conditions attached to the cover note it is mentioned that the insured interests must be in the custody of Mr. P.U. Butani at all times otherwise kept in hotel deposit box and/or bank vault. The witness has also produced the jewellers block policy in sum of 9,00,000 H. K. $ by Gold Mine insurance Co. Ltd. On the same terms and conditions as were mentioned in the insurance cover note. D.W. 2 Mohammad Saeed Akhtar Qureshi, Traffic Assistant, Lufthansa Airlines, Karachi Airport, Karachi deposed that on the relevant date he was posted at the Internalional Disembarking Lounge at Karachi Airport and handled the passenger who disembarked from flight No, L.H.
641. He stated that the appellant was a transit passenger amongst other transit passengers whom he received at the Arrival Lounge. He further stated that every transit passenger has to recognize his baggage for onward transmission in the Arrival Lounge near the Conveyor Belt. After the appellant identified his baggage the witness handed him over to the representative of the Kuwait Airways. He stated that he had seen the Customs Officer talking to the appellant but he did not see the appellant running away. B.W. 3 Najmul Mukhtar Mirza, Traffic Officer, Karachi Airport, Karachi stated that he was deputed to the Arrival Lounge to look after the transit passengers who were to leave by Kuwait Airways Flight No, KW-261 which was to leave at 6-30 a.m. He has testified that the appellant had a confirmed booking in the said flight. This witness testified that the baggage of transit passengers was identified at the Conveyor Belt which was checked by him. He was interrogated by the Customs Officer as to the baggage of the appellant whom he pointed out. D.W.
4 Abdul Samad is the Director of the firm Ali Arbash who deal in jewellery in Kuwait. He deposed that his firm had dealings with the appellant since 12 years and that the appellant was on his way to Kuwait when the was apprehended. He had arranged for Visa for the appellant to enable him to come to Kuwait. It was pointed out by the learned counsel for the appellant that the appellant had applied, to the trial Court before the close of the defence evidence to summon a representative of the Civil Aviation Department and a representative of the Immigration Department in order to prove that there is no Transit Lounge as such at the Karachi Airport but the trial Court refused to summon these witnesses.
8. A careful analysis of the prosecution evidence shows that the prosecution is relying upon only three circumstantial pieces of evidence, namely, (i) the presence of the appellant in the Arrival Lounge although he was a transit passenger, (ii) the fact that he attempted to go out of the Exit Gate of the Arrival Lounge, and (iii) that he chose Karachi Airport to take the connecting flight for Kuwait instead of other airports available for this purpose. It was rightly argued by the learned counsel for the appellant that the last-mentioned circumstance cannot be taken into consideration as it was not put to the appellant in his 342, Cr. P. C. Statement. Even otherwise to my mind by itself this circumstance is not an incriminating circumstance in any way, having a bearing upon the case. A transit passenger is not required to have Visa for the country in which he is in- transit and for that matter even endorsement of the country in question on his passport. There was, therefore, nothing sinister in the fact that the appellant chose this particular route. As to the first- mentioned circumstance there is overwhelming evidence adduced by the appellant that he is a genuine businessm an stationed at Hong Kong dealing in jeweler and precious stones. His being in possession of the precious merchandise of such considerable value is not at all unsual, especially in view of the conditions of insurance that the goods had to be conveyed during the course of the journey personally by the appellant. Part of the goods were meant for the particular consignee, namely, M/s. Haji All Arbash & Sons Limited who has fully supported him through D. W. 4 Abdul Samad. It was explained by the learned counsel that the rest of the goods were carried on sale or return basis so that if customers in the Middle East approved of the same the appellant could dispose of these goods, otherwise they would be taken back. The presence of the invoices in the same bag from which the goods were secured supports the version of the appellant that he had no intention to smuggle the goods in Pakistan. It will be unreasonable to expect a smuggler to carry such conclusive documentary evidence in a bag which was intended to carry smuggled goods, so that even if the culprit were to get rid of the same he can always be traced out. As already pointed out, the complainant admits that sometimes the baggage of the transit passengers is brought on the Conveyor belt alongwith the baggage of the incoming passengers to the Arrival Lounge and that there is no separate Belt for transit passengers. There is, therefore, every possibility of the transit passengers being brought in the Arrival Lounge to identify their baggage in order to expedite the transmission of such baggage to the connecting flights, specially when the intervening time between two flights is short. In this case the appellant arrived by Lufthansa flight which reached Karachi Airport at 5 a.m. And the Kuwait Airways flight was to leave at 6-30 a.m. The interval of lL hours considering the time taken in unloading and loading of baggage cannot be treated as sufficient time to permit leisurly handling. D.W. Mohd. Saeed Akhtar has supported the appellant that he was brought by the airline bus alongwith other transit passengers to the Arrival Lounge. This witness has also categorically denied that there is any specific place known as the Transit Lounge at the Karachi Airport. According to him the Department Lounge is used as Transit Lounge and sometimes even the Arrival Lounge is used as Transit Lounge. The witness could have been contradicted by documentary evidence from the Civil Aviation Department if he was not stating the facts. Similarly the representative of the Kuwait Airways has also supported the appellant that the appellant had identified his baggage at the Arrival Lounge. These witnesses are not shown to have any interest in the appellant and appeared to be independent witnesses. The learned Special Judge has discarded their evidence merely on the ground that these two witnesses had earlier sworn affidavits in support of the version of the appellant. It was stated by the learned counsel for the appellant that the affidavits were obtained in order to use the same for the bail application. In any case I am unable to discard the evidence of these witnesses merely because they had earlier sworn affidavits in support of the appellant. I also do not agree with the learned Special Judge that these witnesses should be disbelieved because the did not report the arrest of the appellant to their superiors. It, therefore, appears to me that the factum of the presence of the appellant in the Arrival Lounge has been explained and cannot be treated as an incriminating circumstance leading to the inference that the object of the appellant was to smuggle goods into Pakistan. Be that as it may even if the appellant was not allowed according to the regulations to enter the Arrival Lounge, his doing so without other circumstances cannot by itself be evidence for purposes of the offence of smuggling. As to the evidence of the complainant that the appellant had entered the Arrival Lounge in an attempt to smuggle goods into Pakistan, the prosecution version that upon being questioned by the Customs Officer he bolted, for the Exit Door is, to say the least, most unnatural conduct repugnant to ordinary course of human behaviour. It is unthinkable that the culprit would attempt to commit such an offence in the presence of the Customs Officer who had disclosed his identity specially when he was a foreigner having no Visa for the country. Such attempt would even to the most foolish person be foredoomed to failure and surely result in his apprehension. The appellant seems to be an educated person and cannot, therefore, bt expected to do an act of this nature, in these circumstances unless he was out of his mind and was acting irrationally. However, there is one circumstance which cannot be ignored. It is the case of the complainant that when he first spotted the appellant he was standing in the Arrival Lounge. If the intention of the appellant was to go out of the Arrival Lounge for the purpose of smuggling the goods carried by him, there was no reason for him to lurk around the Arrival Lounge and arouse the suspicion of the Custums Officers. If this evidence is excluded, the remaining circumstances are that the appellant was carrying precious goods with the necessary documents establishing his genuine possession thereof for the purpose of the business a transit passenger inside the Airport area, which are quite consistent with his innocence.
9. The learned Special Judge has stated in his judgment that the onus of proof was shifted to the appellant to establish that he had no intention to commit the alleged offence. He has approached the whole case from this angle and has put to test the defence evidence as though he was analysing the prosecution evidence. In doing so the learned Judge misconceived the provisions of subsection (2) of section 156 of the Customs Act, 1969 which are in pari materia with the provisions of section 177-A(I) of the Sea Customs Act, 1878 which was repealed. The effect of section 177-A of the Sea Customs Act was considered by late Chief Justice Tufail Ali A. Rahman in Barkat All v. State (1). After cousidering the case law as to the effect of statutory presumptions under parallel provisions of other penal statutes, the learned Judge cited a passage from Ikram-udDin v. State (2) as follows :- "The presumption against the accused under this section is not to be drawn until the examination of the accused is taken into consideration. The normal principle will apply, namely, that the accused is entitled to benefit of doubt and whole reasonable explanation is offered, which is acceptable and raises a doubt, that the prosecution has not discharged the burden though the accused may not have proved the explanation. It was enough for his purpose if he succeeded in raising a doubt as to whether or not the prosecution was true."
' The following dictum was also cited with approval from the case of Sultan All v. State (3).
"When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution."
(1) PLD 1973 Kar. 659 (2) PLD 1962 Kar. 21
(3) PLD 1971 Kar. 78 ' The final conclusion was expressed by the late Chief Justice in the following words : "After a very careful consideration of the principals involved as also the authorities, which are at least binding one me. Namely, those of the Supreme Court I am of the clear view despite section 177-A of the Sea Customs Act, if upon the end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted."
10. Having regard to these principles it appears to me that if the explanation of the accused raises a reasonable probability of being true as to the circumstances relied upon to establish the offence, he would be clearl entitled to be acquitted. As explained above, keeping the defence evidenc in juxtaposition with the prosecution testimony, there is a clear probability that the appellant was taken to Arrival Lounge as a transit passenger by th airline staff and had no intention to smuggle the goods found in his possession. The benefit of doubt must, therefore, go to the appellant. For th same reasons it is not possible to maintain the conviction of the appellant for the minor offence under clause 77(1) of section 156(1) of the. Customs Act. Additionally except the oral allegation there is no evidence that the appellant refused to make a declaration.
11. I, therefore, allow this appeal, set aside the convictions and sentences of the appellant and acquit him. He is on bail and his bail bond will be cancelled.