The appellant who is an Afghan national was tried and convicted by the Special Judge (Customs and Taxation) Karachi under clause (8) of section 156(1) of the Customs Act, 1969. He has been sentenced to suffer R. I. For 6 months and pay a fine of Rs. 15,000 or in default to further undergo R. I.
For 9 months more. By the present appeal the appellant seeks to challenge his conviction and sentence.
2. The main facts on which the prosecution relies are not disputed. It is admitted by the appellant that he arrived by P. I. A. Flight from Bombay on 18-10-1.978 at Karachi Airport and that at about 2- 00 p. m, on the same day he was intercepted by Customs Officer Mr. Muhammad Talib. He also admits that 28 pieces of silver were secured from his hand bag. However his defence is that he is an Afghan national and was in transit to Afghanistan. His plea is that he was carrying the silver in question bona fide in transit to Afghanistan by virtue of a permit issued by the Department of International Business, Trade Ministry, Government of Afghanistan.
3. The prosecution case rests on the testimony of the seizing officer of the Customs Mr. Muhammad Talib and Mashir Habib Khan. The seizing officer has testified that he spotted the appellant at the exit gate of the International Arrival Lounge of the Karachi Airport at the relevant time and upon suspicion intercepted him. Out of the two hand bags in the possession of the appellant one was found heavy, which was examined in presence of the Mashirs Akbar Khan and Habib Khan and 28 slabs of silver weighing about 17 Kilograms were found pasted to the bottom of the hand bag covered with inside lining of the bag.
4. In support of the present appeal it was urged by counsel that the evidence on record does not establish the offence of smuggling against the appellant as be was a bona fide passenger-in- transit and the goods in question were also in transit for final export to Afghanistan as allowed.
Reliance has been placed upon Customs General Order No. 3 which has been re--produced in extenso in the judgment of the trial Court. This General Order incorporates the decision of the Central Board of Revenue laying down the procedure to be followed for the movement of transit goods imported by the Afghan nationals in their baggage from Karachi to Torkham Chaman.
According to this procedure the transit goods imported by the Afghan national in his baggage are to be retained by the Customs at the point of entry and an inventory of such goods has to be prepared in quadruplicate in the presence of the passenger which is to be signed by the concerned Customs Officer and two of the copies of the inventory are to be handed over to the Afghan National Bank, alongwith the goods duly sealed for onward transmis--sion to the Customs Station of Exit within 15 days. Further procedure for handling of the goods and examination of the seals etc. Has been laid down in detail. Now the import of silver into Pakistan is admittedly prohibited except in the case of Afghan nationals if it is bona fide in transit to Afghanistan. The learned trial Court has taken the view that it is for the appellant to prove that the goods in question were bona fide in transit to Afghanistan. I find no fault with this proposition of law. Subsection (2) of section 156 lays down that the burden of proof lies upon the person from whose possession, inter alia, silver has been seized to show that he had no intention to commit the offence of smuggling. It is, however, well settled that in such a case it will be sufficient for the accused for the purpose of discharging the onus of proof if he can show circumstances which create a doubt as to his guilt upon the evidence produced before the Court. In Barkat A.I v. State P L. D 1973 Kim 659in which the late Chief Justice Tufail A.I A. Rahman was considering the effect of section 177(A) of the Sea Customs Act, 1878 (equivalent to section 156(2) of the Customs Act, 1969), it was observed; "The presumption against the accused under section 177(A) of the Sea Customs Act is not to be drawn until the explanation of the accused is taken into consideration. The normal principle will apply, namely, that the accused is entitled to benefit of doubt and where 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 is enough for his purpose if he succeeded in raising a doubt as to whether or not the prosecution was true."
5. I now propose to examine the present case in the light of the principles laid down in the cited judgment. In his statement the appellant, as already stated, admitted that. The silver in question was secured from his possession but he denied the .Presence of the mashirs. He also admitted that the Customs Officer secured from his person his passport and airline ticket: In reply to the question whether he had smuggled the aforesaid goods in Pakistan, he gave the following answer :- "I had not smuggled the silver, as I am an Afghan national in transit to Afghanistan and was carrying the silver to Afghanistan. I had permit in my possession which is Exh. 4-D." '
Apart from this statement the appellant suggested to P. W. Muhammad Talib, the Seizing Officer that be had declared the aforesaid fact of his being an Afghan national in transit to the Customs Checking Counter, but this sugges--petition was - denied for want of knowledge. However, the witness admitted that the appellant made such a statement before him. The witness also denied that the appellant showed him photostat copy of the permit (Exh. 4-D).
6. Now the genuineness of document (Exh. 4/D) produced in the evidence by the appellant has not been challenged before me and it appears that the appellant -had, therefore, valid authority issued by the Government of Afghanistan to import articles mentioned therein including silver. It appears reasonable, therefore, to assume that the appellant when questioned would have naturally produced the aforesaid permit document in support of his assertion admittedly made to the Seizing Officer that he is a bona fide Afghan national carrying silver for purposes of final export to Afghanistan. But the witness, as has already been stated, denied that the appellant produced the permit before him. Assuming this is true it will be difficult to believe that having been issued the aforesaid permit which entitles the appellant to take silver in transit over Pakistan territory, not to have orally disclosed this fact to the Customs Officer. Under section 139 of the Customs Act, 1969 (hereinafter to be referred to as the Act) the passenger is only required to make a verbal or written declaration of the contents of his baggage to the appropriate officer and answer all such questions as may be put to him with respect to his baggage and any article contained therein.
Admittedly the appellant made such statement before the Seizing Officer. Now the case of the prosecution is that the copy of the permit was not shown to the said Officer by the appellant. The question is, was the appellant guilty of an offence under the Act for not disclosing or producing the aforesaid document? Sections 142 and 143 seem to me to be laying down the procedure in a situation like that, which read as follows :- "142. Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited or restricted and in respect of which a true declaration has been made under section 139, the appropriate Officer may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving Pakistan.
143. Baggage of passengers and members of the crew- in transit in respect of which a declaration has been made under section 139 may be permitted by the appropriate Officer, subject to such limitations, conditions and restrictions as may be specified in the rules, to be so transmitted without payment of` duty."
Customs General Order upon which reliance has been placed by the defence would be relevant in the context of the aforesaid provisions of the Act. The Customs Officer could, therefore, retain the goods and follow the procedure provided therein. He could at the most ask the appellant to produce the necessary authority on a subsequent date to satisfy himself that the goods were bona fide in transit. It has been argued on behalf of the prosecution that the evidence of P. W.
Muhammad Talib, the Seizing Officer shows that a suggestion was made to him indicating the defence theory that the appellant had declared the goods to be in transit at the Customs Checking Counter. The witness has shown ignorance of this fact. There is, therefore, no evidence on record that the Customs Officer at Customs Checking Counter had ,.Questioned the appellant and the appellant had failed to make a declara--petition. It was also urged that the goods were concealed in the bottom of the hand bag carried by the appellant which establishes his intention to smuggle the goods secretly into Pakistan. In this connection it was urged on behalf of the appellant that no reliance on the prosecution evidence can be placed in view of the fact that the arrest of the appellant and the seizure of the goods was effected by the concerned Customs Officer in breach of the man--datory provisions of section 171 of the Act, which read as follows :-- "When anything is seized, or any person is arrested under this Act the Officer or other person making such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest."
I have no doubt in my mind that the provisions of this section are mandatory and were designed to protect persons from being arrested or goods from being seized on unjustifiable grounds which could be subsequently examined by the Court or the relevant Authority on the objection of the aggrieved person. P. W. Muhammad Talib, the Seizin Officer admitted in his examination-in-chief that' he did not serve any, notice under section 171 of the Act upon the appellant and there is no evidence that such notice has been served upon the appellant at any time. The arrest of the appellant and the seizure of goods being in breach of the mandatory provisions of section 171 was, therefore, illegal. I have no difficulty in holding that these provisions are mandatory as provisions of similar nature in the Sea Customs Act, 1878 regarding the search and seizure of the good have been held to be mandatory. In S. M. Yousuf v. Collector of Customs PLD 1969 Kar.599 the effect of violation of section 172(A) of the Sea Customs Act was examined. One of the requirements of the said section was that a search for unearthing concealed smuggled goods was that the Officer of the Customs was to prepare a statement in writing of the grounds of his belief and of the goods for which search was to be made ; and in case such search was effected a signed copy of the such statement was to be delivered to the occupier of the place which was searched. It was held that where notice of search was received without the grounds of belief having been recorded before hand such failure amounted to breach of statutory provisions and were violative of constitutional guar--antees provided in Article 2 of the 1962 Constitution. The search and seizure of the goods was also held to be invalid. Anwarul Haq, 7. (as he then was) made the following observations about the nature of these provisions; "These are stringent requirements prescribed by law in order to ensure that the enormous power of search without warrant given to Customs ,. Officer is exercised honestly and judiciously. By insisting that the grounds for his belief shall be recorded before hand by the Customs Officer concerned the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party. To put it differently, it seems to me that this is a ' safeguard prescribed by the Legislature to ensure that the rights of the citizen in respect of private property are interfered with only for genuine reasons related to the prevention of smuggling and evasion of Customs duty etc. This safeguard can be effective only if the procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case.."
This case had gone to the Supreme Court, albeit on. a different point, but the view held by the High Court as to the mandatory nature, of the provisions of section 172(A) was not challenged by the Customs and' was expressly conceded to: (See Collector of Customs v. S. M. Yousuf 1968 SCMR 603
7. The importance of this question does not lie in the present case as to the consequences following the non-compliance of the mandatory provisions of law in effecting the arrest and seizure on the goods seized, but on .The question of the guilt of the appellant or more appropriately on the question whether the onus lies upon the appellant to prove that he had no intention to smuggle the goods in question as required by section 156, subsection (2). At this stage it will be advantageous to reproduce the provisions of sub--section (2) of section 156 which are as follows :- "Where currency, gold, silver, precious stones, ornaments or other manufactures of gold, silver or precious stones, or any other goods which the Federal Government may, by notification in the official Gazette, specify are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force, by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized."
It will be observed that the onus of proof shifts to the accused only when goods specified in the aforesaid subsection are "seized" under the Act.
The shifting of the onus is clearly, therefore, predicated by a lawful seizure of the goods under the Act. As the seizure of the goods from the possession of the appellant was illegal, apparently the goods were not seized lawfully under this Act and, therefore, the onus that the goods were not smuggled does not shift to the appellant.
The prosecution must, therefore, discharge the onus of proof by positive evidence that the accused intentionally smuggled the goods in Pakistan. In this, in my opinion, the prosecution has utterly failed. I have already discussed above that the appellant disclosed to the Customs Officer that he is a bona fide Afghan national in transit carrying the goods for ultimate export to Afghanistan. The appellant is in possession of a valid permit authorising him to import silver into Afghanistan. The general surrounding circumstances also exclude an intention on the part of the appellant to smuggle the goods into Pakistan. Additionally P. W. Habib Khan who is the witness of the seizure memo has stated that the mashirnama was prepared and signed by him on 21st when admittedly the alleged seizure had taken place on 18-10-1979. Clearly, therefore, no contemporaneous record was prepared of the seizure by the Customs Officer as is usually don and the benefit of this fact must go to the appellant.
8. In the result, I allow this appeal and set aside the conviction of the appellant. The appellant is on bail and his bail bonds shall stand cancelled.