' This appeal arises out of judgment dated 29-3-1977 by the Special Judge (Customs and Taxation), Karachi whereby the appellant has been convicted wider section 156 (1) clause (8) of the Customs Act, 1969 and sentenced to suffer R. I. For one year and pay a fine of Rs, 50,000 or in default to undergo further R. I. For one year.
2. The prosecution story in brief is that the appellant was intercepted at security counter of P. I. A. In the international departure lounge of Karachi Air Port at about mid-night on the night between the 5th and 6th July, 1976 when he was about to leave for Dobrsi. Mr. Nasiruddin Hyder, Intelligence Officer of the Customs secured one brief case from the appellant in presence of mashirs Yunis Khokhar and Umar Khattak, both Security Officers of P. A. From the brief case a Diamond was secured. The Intelligence Officer then secured the suit-case and a box of the appellant which had already been checked-in with the P. I. A, as accompanied baggage. Upon search in the presence of the mashirs 36 complete sets of gold ornaments studded with precious stones were secured, alongwith Pakistani currency of the value of Rs, 10,00,000 and some stray gold ornaments.
Mashirnamd and inventory were prepared. After the usual investigation the appellant was sent up for trial on the charge already mentioned.
3. The appellant pleaded not guilty at the trial and his defence was that he has been implicated on account of enmity by the Seizing Officer. According to him he was taken from the Air Port to his house from where the gold ornaments and currency were illegally siezed and he was falsely implicated in this case. He further denied that his baggage was off loaded from the aircraft and contended that bis baggage had in fact reached Dobai.
4. The appellant's conviction and sentence are based on the sole testimony of Seizing Officer Mr. Syed Nasiruddin Hyder and the 2 mashirs, namely Muhammad Yunis and Muhammad Umar Khattak have not supported the prosecution. Both have deposed that no search was taken and no goods were recovered in their presence as alleged by the prosecution, although their signatures were obtained on blank papers. The Seizing Officer has, however, fully supported the prosecution and the learned trial Judge has placed reliance on his testimony as a foundation for the conviction of the appellant. Since the prosecution case is founded on the testimony of the said sole witness learned counsel for the appellant assailed his testimony as doubtful and unworthy of reliance.
5. The main discrepancy in the evidence of this witness relates to the number and character of the baggage of the appellant seized at the time of the incident. It was pointed out that in the F. I. R. It is stated only as under :- "after this his accompanied baggage was put to search before 2 independent mashirs. The search resulted in the recovery of aforementioned contraband goods, for the recovered goods and the Pakistani currency the said accused could not produce any document for lawful export."
' Clearly therefore, the F. I. R. Lacked totally in the description of the baggage. In his evidence P. W.
Syed Nasiruddin stated that be first searched the brief case of the appellant from which he recovered a square diamond which was claimed by the appellant as an artificial one. The appellant subsequently admitted that the diamond was a rare article After this the appellant was asked to declare any contraband items carried by him and he made a declaration in writing on the prescribed form (Exh. 8). The Seizing Officer then deputed P. W. Muhammad Yunus Khokhar to bring the suit-case of the appellant from the aircraft and he also accompanied the said witness. The appellant identified his suit-case out of the baggage lying in the aircraft. The suit-case and the box of the appellant were then brought to the International Departure Lounge of the Air Port and from the suitcase the aforesaid 36 sets of golden ornaments and currency were recovered. The box according to this witness did not contain anything incriminating. But in the cross-examination the witness stated that the empty ornament cases were recovered from the box. The appellant in his statement before the trial Court denied that the diamond was recovered from his brief case. He also denied, as already stated, that the ornaments and currency were recovered from his suit- case. He further denied that 36 empty Jewellery cases were recovered from the cardboard box.
There is nothing in the F. I. R. Mashirnama or the inventory prepared by the Seizing Officer about the cardboard box allegedly forming part of the baggage of the appellant. At the instance of the defence counsel the witness was asked to put the cases in the box but according to the note of the trial Court after the cases were inserted in the box it was full and its upper layers (Flappers) could not be completely closed. It also appeared that the empty cases were less than 36 in number. The witness further stated that there were baggage tags fastened to the suit-case and cardboard box and the counter foils were in the possession of the appellant. According to the Seizing Officer these tags were handed over by him to the Investigating Officer but they were also not mentioned in the mashirnama or inventory. These tags were also not produced in Court and were not found fastened to the cardboard box produced in Court. As to the colour of the suit-case the inventory described it to be of black colour whereas on being confronted by the same in the Court the witness admitted that it was of dark brown colour. The Investigating Officer P. W. Iftikhar Ahmed Khan has stated that P. W. Nasiruddin Hyder gave him the 2 tags alongwith the case papers which were the main tag and the counter foil of the suitcase. Clearly therefore, no tag of the cardboard box is forthcoming. The Investigating Officer also admitted that the suit-case produced in Court was of dark brown colour. He further stated that some of the empty cases were lying in the cardbord box whereas some were lying in the suitcase at the time photographs were taken of the seized articles.
6. The Seizing Officer was further suggested in his cross-examination that one Sikander had business relations with the appellant in Dobai and there were some business differences between them in which the Seizing Officer had intervened but he denied this suggestion. He however, admitted that about 6 years back he was convicted by the military Court but his conviction was set aside by the High Court. According to him false allegations were made against him in that case about misappropriation of silver.
7. Learned counsel for the appellant also referred to the statement of the Seizing Officer in his evidence that the ornaments were found in plastic bags which were also not mentioned in the F. I.
R. Or the mashirnama nor were they produced in Court. The witness also admitted that the number of Jeweler sets recovered was not mentioned in the F. I. R. Nor the fact that the brief-case of the appellant was also searched and the diamond recovered therefrom.
8. The ,appellant also led defense and examined his brother-in-law one Muhammad Ivlazharuddin who testified that on the night of the occurrence he had-gone to see off the appellant at the airport when he was carrying only one suit-case with his name inscribed on it and one fruit basket.
According to this witness at about 3 a. m. After he returned to his house the appellant was brought by Customs Officers in Jeep No, R. I. D-5652 and his house was searched. The 36 Jewellery sets lying in cases, one diamond and Rs, 1,00,000 in cash were seized from the Almirahs of the house.
These articles were taken away along with the appellant. He then went and submitted an application to the Gulberg Police Station on 6th July, 1976 at about 12.30 p. m. He produced the copy of the application bearing seal of the police station and the endorsement of the Police Officer.
The appellant also produced in his statement letter dated 16-11-1976 from the supervisor M. H. B.
Section Dobai International Airport addressed to the appellant saying that his missing baggage on P. I. A. Flight dated 6th July, 1976 under P. I. A. Tag number 7465 had arrived which may be collected from Lost and Found section of the Airport as it was lying there for a long time.
9. Learned trial Court was of the view that since the statement of the appellant as an accused person is not on oath the sworn testimony of the Seizing Officer has greater weight because the latter runs the risk of prosecution for perjury. Secondly the Court relied upon the provisions of sec- A tion 156(2) of the Customs Act, 1969 to hold that the burden of proof that he did not commit the offence lay upon the appellant. It has been rightly contended that this approach of the learned Court below is wholly misconcieved and unsustainable.
10. It is well settled that the Court is to keep the prosecution evidence and defence plea in juxtaposition and then to determine the question whether the guilt of the accused has been established beyond reasonable doubt. In Mir Ahmed v. State (1) rule was laid down that where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion re-acts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt. Also in Barkat Ali v. State (2) which was a case under the Sea Customs Act, it was held that the presumption against the accused is not to be drawn until the explanation of the accused is taken into consideration and that he would be entitled to benefit of doubt if reasonable explanation is offered by him which is acceptable and raises a doubt although the accused may not prove the explanation.
11. In the light of the foregoing I am inclined to agree with the contention that the appraisal of the evidence on record by the learned trial Court was contrary to the established principles in this behalf. The learned court placed the burden of proving the defence on the appellant and considered the defence version in isolation on the erroneous view that this was the requirement of section 156(2) of the Customs Act, 1969. This is clear from the following observation in the Judgment : "The accused alleged, that the Seizing Officer Nasiruddin Hyder had illegally detained him on the airport and took him to his house from where he secured the gold ornaments and Pakistan currency and foisted.
(1) PLD 1962 SC 489 (2) PLD 1973 Kar. 659 &nue upon the accused. I had already pointed out under sec- tion 156(2) of the Customs Act, the burden of proving this allegation was upon the accused."
' From the above quotation it is clear that the learned Judge was seeking to examine the question whether the appellant did in fact prove his defence by tangible evidence. It seems reasonable that as a result of this erroneous approach he was influenced in his finding about the guilt of the appellant greatly in view of his finding that the explanation of the appellant was not proved.
12. Another error committed by the trial Court relates to the evidence of the mashirs. In the first place the trial Court rightly reached the conclusion that their evidence is totally unworthy of credit and has to be discarded altogether. But later in the judgment it went on to hold that they were natural witnesses and were not in any way under the influence of the Seizing Officer, thereby invoking corroboratory support to the evidence of the Seizing Officer. The benefit of every doubt must go to the accused and not to the prosecution. The fact that witnesses are disbelieved could not be impliedly used to support the prosecution.
13. The fact remains that the prosecution case rests on sole testimony of the Seizing Officer and conviction can only be safely founded on the testimony of a sole witness provided the Court can place implicit reliance on his testimony. The circumstances mentioned in the foregoing part of this Judgment re-act very adversely on probative value of his testimony or at any rate make it unsafe to base a conviction thereon. On an overall view of the entire evidence therefore, I am unable to agree with the conclusion of the trial Court that the prosecution has succeeded in establishing their case beyond reasonable doubt.
14. In the result while giving the benefit of doubt to the appellant I allow this appeal and set aside his conviction and acquit him.