The present two appellants were tried alongwith 7 others for offences under section 156 clauses (8) & (89) of the Customs Act, 1969 by the learned Special Judge (Customs & Taxation), Karachi, by Judgment dated 25th August, 1976 the present appellants were convicted under clause (8) of section 156 (1) while the remaining accused were acquitted. The present appellants were sentenced each to undergo R. I. For one year and to pay a fine of Rs. 1.000 or in default suffer further R. I. For 12 months. The appellants seek to challenge their convictions and sentences by the present appeal.
2. The case of the prosecution in brief is that on 23rd November. 1974 Capt. Mohammad Yaqoob of the Pakistan Coast Guards posted as Company Commander at Pakistan Coast Guards Post at Gharo received information from the Headquarters at Karachi that a launch carrying foreign goods was to reach Boharo Creek. District Thatta and unload foreign goods on Pakistan soil. On receiving this information Capt. Mohammad Yakoob accompanied by his staff and two mashirs whom he picked up from Gharo proceeded to a place within an area of 5 miles of Boharo village towards the sea side and upon a search in the area, at about 6-00 p.m. Found the present two appellants sitting with certain bales of cloth and bundles lying besides them. The appellant upon seeing the Coast Guards party attempted to escape but were apprehended and the goods were seized. It was found that the bales contained foreign cloth and the bundles contained 5990 foreign made watches and one foreign made cassette player with two speakers. Capt. Mohammad Yakoob prepared the mashirnama of the recovery and the inventory of the articles and also the mashirnama about the personal search of .The appellants from whom nothing was secured. The appellants were then brought to the Headquarters of the Pakistan Coast Guards at Karachi alongwith the seized goods and a case was registered. Subsequently, the papers were handed over to one Major Zainul Abedin for investigation who submitted the challan before the trial Court.
3. On behalf of the prosecution P. Ws. Capt. Mohammad Yakoob mashirs Nizamuddin and Ghulam Rasool, Khamiso. Ghulam Hussain and Investigating Officer Major Zainul Abedin were examined.
The appellants led no defence. The appellants denied the recovery of the contraband goods from their possession and pleaded their innocence. Appellant Abdul Ghani stated that he was arrested while he was going to attend the fair of Chuttal Shah, whereas appellant Achhar pleaded that he was arrested by the Police from a hotel at Boharo bus stand of the instance of one Jabbal against whom he figured as a prosecution witness in an Arms Act case and was taken to the Coast Guards H. Q. At Karachi.
4. It may be stated at the very outset that mashir Dr. Nizamuddin who is a Government Officer being the Health Inspector and mashir Ghulam Rasool have both not supported the prosecution and their (e.i)--dence is that they were taken from Gharo directly to Karachi and made to sign the mashirnama. They were both declared hostile and cross-examined by the prosecution. Similarly the evidence of P. Ws. Khamiso and Ghulam Hussain does not in any way support the prosecution case as they merely stated that they came to know that the Coast Guards had seized certain smuggled cloth and other goods alongwith two persons Such hearsay evidence which does not connect the appellants with the offence is inadmissible and of no consequences. The prosecution case, therefore, rests solely upon the testimony of the Seizing. Officer Capt. Mohammad Yakoob who was believed by the learned Special Judge and upon whose evidence alone the convictions are based;
5. It is contended on behalf of the appellants that the conviction of the appellants is not sustainable on the sole testimony of the complainant without any corroboratory evidence in view of the circumstances on record. The circumstances pointed out are as follows.' The F. I. R. Which was registered at Karachi on 24th November, 1974 at 8-00 a.m. Reads as under "On 23rd November, 1974 at about 1800 hours I Capt. Mohammad Yakoob alongwith the Petrol Party of Coast Guards, located the dump of the above-mentioned contraband goods of foreign origin in general area of 5 miles south west of Boharo near sea coast, District Thatta. The same was seized under section 168, Customs Act in the presence of mashirs."
The mashirnama prepared on 23rd November, 1974 at 6-00 p.m. Reads as follows:- "On 23rd November, 1974 at about 1800 hours I Capt. Mohammad akoob alongwith the Petrol Party of the Pakistan Coast Guards ocated dump of the under mentioned contraband goods of foreign rigin in general area 5 miles south west village Boharo, near sea oast, District Thatta. The same was seized under Customs Act, 969 in presence of under mentioned mashirs."
It will, therefore, be seen that although the names of the accused were mentioned in the relevant column of the F, I. R. The body of the report did not attribute any act to the appellants and no part in the commission of the offence was assigned to them. In the mashirnama the names of the appellants do not transpire at all. The names of the mashirs were also not disclosed in the F. I. R. P.
W. Capt. Mohammad Yakoob has generally supported the prosecution but as to the appellants states:I saw two persons alongwith some bales towards the sea coast at the distance of about 5 miles from Boharo village. We surrounded the area where I saw two persons sitting alongwith bales." Describing the area he states "I had reached the actual spot where I found the two accused and the goods, sitting and lying at 6-00 p.m. I came across only present two accused Abdul Ghani and Achhar during the search in that area, The place of incident is situated in an open place. There was a but made of straw at the distance of about 1000 yards from the place of incident I did not see anybody in that but as I did not go there and passed by it from far of."
6. It was rightly pointed out that the F. I. R. And the mashirnama being the earliest version of the incident by the prosecution are important documents having a bearing on the prosecution case as a whole. The word "located" used in these two documents was highlighted and it was argued that it seems that the contraband goods were located lying on the open ground unattended and subsequently the appellants were involved, I find force in the contention that no allegation has been made in the two documents indicating even remotely that the contraband goods were found in possession of any one much less in the possession of the appellants. Be that as it may, even taking the prosecution evidence at its best all that Capt. Mohammad Yakoob states is that the appellants were found sitting near the bales of cloth and bundles containing other contra--band goods. The question is whether this evidence is sufficient to constitute conscious possession of these goods by the appellants It is significant to note that the goods have not been found from any b6ilding or other property in the exclusive possession of the appellants but on open ground accessible to any one. In Akbar Ali v State (PLD 1978 Pesh. 10) while interpreting clause (89) of section 156 (1) of the Customs Act it was held: "And in my opinion, the word `possession' appearing in the section and the meaning attributed to it ought to be `conscious possession.' Then before the presumption under the section comes into opera--tion, conscious possession on the part of the accused is to be proved by the prosecution.
As regards the word 'concerned' to the section, the argument which is attempted to be built on the inter--pretation of this word with regard to all the appellants is hardly well-founded. In its legal conception the word 'concerned' would be applicable to the case of a person who in fact is involved in the act and is actually engaged in the activity for which he is tried. The accused in order to be 'concerned', must be shown to have specific knowledge and must also be consciously taking part in the prohibited act."
The mere presence of the appellants in the proximity of the contraband goods alone with no other evidence of their connection with the possession of the smuggled goods or with the act of smuggling, would hardly be sufficient to hold them guilty of being in possession of smuggled goods or of being concerned in keeping such goods. As already stated there is no other evidence corroborating the testimony of the complainant that the appellants had anything to do with the possession of the smuggled goods. Clearly, therefore, the testimony of the complainant is wholly insufficient to sustain the convictions. There is force in the submission of the learned counsel for the appellants that possibility cannot be excluded of the appellants being merely passers-by lurking around the area without being in possession of the contraband goods.
7. It was further argued that the conduct of Capt. Mohammad Yakoob was also extraordinary in so far as he did not register the F. I. R. At Gharo Coast Guards post on the same day but went all the way to the Head Quarters at Karachi and registered the case on the next day in the morning. The learned Special Judge referring to all these discrepancies and omissions, has taken the view that these were irregularities committed by Capt. Mohammad Yakoob in the preparation of the mashirnama and the lodging of the report. In this view of the matter he rejected them as irrelevant.
It is a cardinal principle of the criminal jurisprudence that benefit of every doubt must be given to the accused and the reliance by the trial Court on PLD 1970 Lah, 878 was, therefore, inapt as the facts of the reported case bear on analogy to the present case.
8. I am also unable to agree with the learned Special Judge that the mashirnama unsupported by the mashirs would furnish corroboration to the testimony of Capt. Mohammad Yakoob. Having regard to the fact that no allegation against the appellants was made in the body of the F. I. R. Or to the mashirnama of seizure. The fact that the mashirs did not support the prosecution raised grave doubts about the prosecution version and the benefit of that must go to the appellants. In view of all the aforesaid circumstances the mere fact that no specific allegation of enmity was levelled against Capt. Mohammad Yakoob by the appellants will be no ground to rely on his testimony and at any rate, it will be unsafe to rest the conviction of the appellants on the sole testimony of this witness. There is also no warrant for the startling proposition adopted by the learned Special Judge that by not producing any defence evidence the appellants must be deemed to have accepted the prosecution evidence about the recovery of the smuggled articles from their possession to be correct.
9. Learned counsel appearing for the respondents half-heartedly supported the prosecution and contended that in terms of clause (89) of section 156 (1) of the Customs Act the onus of proof lay upon the appel--lants to prove that they were not in possession of the smuggled goods. This argument overlooks the requirement of law that the prosecution must first establish that the accused is in possession of the smuggled goods before he could be called upon to show whether he had any lawful excuse for being in possession of such goods. Besides as held in Barkat Ali v.
State (PLD 1973 Kar. 659) when the law raises 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 and the benefit of doubt arising upon the conclusion of evidence must be given to him. The circumstances of the present case clearly raised doubt about the guilt of the appellants as discussed above and, therefore, they are entitled to acquittal.
10. In the result, giving benefit of doubt to the appellants Fallow their appeal and acquit them. They are on bail and their bail bonds shall stand cancelled.