Appellants Vaqar Hussain and Nasir Saba were tried jointly on the charge of smuggling under clause (8) of section 156 (1) of the Customs Act, 1969 by the Special Judge (Customs and Taxation).
Karachi and have been convicted under the said section by judgment dated 6th December, 1979.
The learned Judge sentenced each appellant to undergo R. I. For 15 months and further sentenced appellant Vaqar Hussain to pay a fine of Its. 20,000 or in default to undergo further R. I. For one year.
Appellant Nasir Saba was further sentenced to pay a fine of Rs. 30,000 or in default to undergo further R. I. For 1-- years. Both appellants have-appealed against their convictions and sentences.
This judgment will dispose of both appeals.
2. The facts alleged by the prosecution are that on 16th April, 1.978 Mr. Jafri, an Intelligence Officer of the Customs Intelligence Department alongwith another Intelligence Officer Nasir Hyder, on receipt of spy information intercepted appellant Nasir Saba who was about to proceed to Tokyo by the Japan Airlines at the Karachi Airport. The said appellant is alleged to be present near the counter of the Japan Airlines after completing his briefing. The Customs Officials requested the said appellant if he had to declare any currency to which he replied in the negative. On being furnished a Currency Declaration Form he also declared in writing that he was not in possession of any currency. The Customs Officials then secured the suit-case of the said appellant in respect of which briefing was completed and as the appellant did not have the key to open it, the lock of the same was broken open. Thereafter in presence of mashirs Mukaddar and Shahzada Sohail Ahmed the suit-case (---box") was, searched and was found to contain a trousers from the pocket of which U. S. $7,050 and Pakistan Rs. 5,000 were secured. On personal search of the said appellant the Officials secured a Bank Draft of U. S. $ 15,200 which was lying concealed inside the socks that the said appellant was wearing. The passport, identity card, air ticket and baggage tag etc. Were also secured from the possession of the appellant. The mashirnama was prepared and the said appellant was arrested. The F. I. R. Was then registered by Mr. A. J. Jafri on behalf of the State. During the investigation the name of the other appellant Vaqar Hussain was revealed, but he had already obtained bail before arrest, The case was challaned on 5th July, 1978.
3. During the trial appellant Nasir Saba denied the recovery of the U. S. And Pakistani currency from his suit-case. He, however, stated that the Pakistan, currency amounting to Rs. 5,000 were lying in his pocket which he had brought in order to purchase foreign currency from the bank at the Airport for which he had necessary permission from the State Bank on his passport. He also denied the recovery of the Bank Draft from inside his socks. In his Written statement his plea was that he was arrested while he was standing outside the Airport Building. According to his explanation the Bank Draft was brought by his friend appellant Vaqar Hussain and delivered to him with a request to take it and "to pay the money to his (Vaqar Hussain's) were abroad, who is a foreign national like him" He further stated that he made enquiry whether the Bank Draft could be legally taken out of Pakistan on which he was assured by appellant Vaqar Hussain that it was legally permissible to do so. He, however, wanted to confirm the position from the Bank and while he was proceeding there he was intercepted. He also denied that he had gone through the formalities of briefing. He also denied the ownership and possession of the box produced by the prosecution and also denied his signature on the Currency Declaration Form.
4. Appellant Vaqar Hussain admitted that on 15th April, 1978 he had issued a Bank Draft in the sum of U. S. $15,200 in favour of appellant Nasir Saba and submitted a written statement in which he pleaded his innocence. With regard to the Bank Draft he stated that he had no concern about the manner of its disposal and denied that he had anything to do with the alleged act of taking out the same. His plea was that the Draft was issued in a lawful manner by the Bank in Karachi from his foreign currency account. He stated that he is a British national.
5. The prosecution case rests on the testimony of P. W. A. J. Jafri, the Seizing Officer, who has fully supported the prosecution case as narrated above. The other witness produced by the prosecution in support of the recovery of the contraband currency is the mashir P. W. Mukaddar Ahmed Khan who was posted on duty at the gate of International Departure Hall of the Karachi Airport at the relevant time as A. S. I., Airport Security Force. The prosecution has additionally examined P. W.
Khurshid Ahmed Ansari, Accountant of the Muslim Commercial Bank, who testified that he knew appellant Vaqar Hussain, who had an account in foreign currency in the Main Branch of the Bank.
According to him on 15th April, 1978 the said appellant got a Demand Draft issued in the sum of U. S. 515,200 in favour of Nasir Saba payable on Bank of America, New York. He produced the Demand Draft (Exh. 3-A). P. W. Jamiluddin, the Assistant Vice-President of the Muslim Commercial Bank, Main Branch, Karachi also testified that appellant Vaqar Hussain had opened an account in foreign currency in the Branch. He produced the Account Opening Form (Exh. 4 (a)) and identified the signature of the said appellant. He also identified the appellant in person. He further stated that tile said appellant had issued instructions in writing that from his account a Draft in the sum of U. S. $15,200 be issued in the name of Nasir Saba and the Draft was accordingly issued. The prosecution also produced P. W. Abdul Hadi Khan, the Traffic Supervisor of the Japan Airlines at Karachi. He testified that on the night between 15th and 16th April; 1978 he was on duty at the International Departure Lounge at Karachi Airport and had handled appellant Nasir Saba for briefing. --He had done the briefing on Exh. 5-A/3 which is the Japan Airlines ticket of appellant Nasir Saba. He identified his writing on the ticket mentioning the weight and also on the flight coupon. According to this witness the said appellant was taken for search after the briefing and also his baggage lying on the counter was taken away by the Customs officials who instructed him to of-load the passenger.
6. Mr. Mir Nawaz Khan Marwat, learned counsel appearing for appellant Nasir Saba assailed the evidence of the mashir P. W. Mukaddar Ahmed as unreliable on account of discrepancies with the testimony of the Seizing Officer Mr. Jafri. It was pointed out that according to the evidence of the mashir the contraband currency both foreign and Pakistani as well as the Draft were secured from the pockets of the trousers kept in the box secured from the said appellant. It was further submitted that the fact that the counterfoil of the baggage tag was secured from the said appellant was also admittedly not mentioned in the mashirnama. The perusal of the mashirnama, on the other hand, shows that U. S. $7050 to cash were recovered from the pocket of the trousers kept in the box, whereas the Bank Draft was recovered from the personal search of the appellant hidden in his socks. So was the Pakistani currency recovered from the inside of the pocket of the trousers worn by the appellant. It is also correct that there is no reference in the mashirnama regarding the recovery of the counterfoil of the baggage tag from the appellant although the airline ticket and boarding card have been mentioned as having been recovered from the possession of the appellant. However, P. W. A. J. Jafri has fully supported the prosecution as already stated and his testimony is consistent with the F. I. R. And the mashirnama. The only thing pointed out so far as he is concerned, is that he has admitted that he did not state in the F. I. R. The fact of securing the passport, air ticket, tag and identity card from the possession of the appellant. Now so far as the Bank Draft is concerned, the said appellant does not deny that it was secured from his possession.
He also admits that this Draft was issued by appellant Vaqar Hussain in his favour. Further he admits that the air ticket was secured from him. Finally he admits that he was leaving Karachi by Japan Airlines to Tokyo. The prosecution has proved through the testimony of P. W. Abdul Hadi Khan, the Traffic Supervisor of Japan Airlines that the said appellant had undergone briefing and that he bad been intercepted after completion of the briefing. There is no reason to disbelieve the testimony of these witnesses as no motive or other enmity has been alleged against them. The air ticket (Exh. 5-A/3), the boarding card ((Exh. 5-A/4) and the baggage tag (Exh. 5-A/5) corroborate the evidence of the witnesses. The question is whether the explanation of this appellant kept in juxtaposition with the prosecution evidence tends to create any doubt about the truthfulness of the prosecution case. The main plea in defence of the appellant is that he was outside the Airport Building and was involved in this case by the Customs Officials in order to secure a reward. The overwhelming evidence mentioned above and the admissions of the appellant himself show that he had gone to the Airport to board the flight for Tokyo. It is difficult to believe, in the absence of strong motive, that the Customs Officials would foist the currencies on the appellant and involve him in a smuggling case by manipulating, evidence against him both documentary as well as oral.
In this view of the matter, the discrepancy in the testimony of the mashir pointed out by the learned counsel is not material. It may be mentioned that the learned Judge has exonerated this appellant of the charge of smuggling Pakistani currency in the sum of Rs. 5,000 on the ground that he had been sanctioned exchange by the State Bank of Pakistan of the value of U. S. $500 and it is possible that the appellant may be carrying a this amount to purchase the foreign exchange from the Bank at the Airport. I agree with this finding.
7. The said appellant has further denied his signature on the currency Declaration Form and has invited the Court to compare it with his admitted signature on the identity card and passport. I have compared the disputed signature with the admitted signatures on the aforesaid two documents as well as the vakalatnama signed by him in favour of his counsel Mr. Mir Nawaz Khan Marwat dated 19th April, 1978. As a result of the comparison, I am satisfied that the disputed signature is that of the appellant. Even otherwise, as already stated, there is no plausible reason why the Customs Officials would fabricate evidence of this nature. The explanation of this appellant that the Bank Draft was delivered to him at the Airport by the other appellant Vaqar Hussain for the benefit of his were is also palpably false. In the first place, in his 342, Cr. P. C. Statement the co- accused does not support this version. Secondly, the fact cannot be denied that the Bank Draft was prepared on the previous date in the name of this appellant. His story that he wanted-to check up from the Airport Bank about the legality of such a deed, therefore, appears to be a vain attempt to explain away the possession of the Bank Draft in his name. There is nothing in the evidence to indicate that the amount was intended for the were of appellant Vaqar Hussain. There is no reason why, if that was so, the said appellant would not issue the Bank Draft in the name of his were or remit the amount to her by proper banking channels. The evidence of this defence witness, namely, Mohammad Fama is not, therefore, believable. He has admitted that he is a friend of appellant Nasir Saba and apparently his evidence is an attempt to oblige a friend. For all the aforesaid reasons, I agree with the findings of the trial Court that the prosecution has established its case against appellant Nasir, Saba beyond any reasonable doubt.
8. So far as the case of appellant Vaqar Hussain is concerned, he admits that he had issued a Bank Draft one day prior to the date of occurrence in favour of appellant Nasir Saba. He, has, however, denied; that he gave the said Bank Draft to the co-accused in order that the amount may be taken out of Pakistan. It is significant that he is the drawer of the Bank Draft in favour of the co-accused and yet he does not explain in what connection he intended to pay such huge amount in foreign exchange to the cc-accused. All that he states in his written statement is that he bad no concern with the manner of disposal of the Draft. The other significant fact is that the account was opened by this appellant only one day before the date of incident i.e. 15th June, 1978 and on the same day be issued a Draft in favour of the co-accused. This is proved by the testimony of P. Ws. Khursheed Ahmed Ansari and Jamiluddin. Exh. 4-A, the Account Opening Form further shows that this appellant deposited by cash a sum of U. S. $15,250 and issued -simultaneously the Bank Draft for approximately the same amount. These are significant facts for which no plausible explanation is forthcoming from the appellant. According to the definition of "smuggling" as provided by section 2(s) of the Customs Act, 1969, taking out of Pakistan, inter alia, currency, in breach of any prohibition or restriction for the time being in force amounts to smuggling and the term includes an attempt as well as abetment or connivance. The Foreign Exchange Regulation Act, 1947 defines the word "currency" to include, inter alia, drafts. Apparently, therefore, the taking out of a bank draft in violation of the restrictions for the time being in force would constitute smuggling. It was contended by Mr. Raja Qureshi, learned counsel for appellant Vaqar Hussain that he being a British national maintaining a foreign currency account at Karachi could legally take out money from Pakistan and in any case the Bank Draft was not encashable within Pakistan. The learned trial Court has examined this aspect the case in great detail and has corns to the conclusion that the said appellant violated the prohibitions, contained in the Exchange Control Manual issued by the State Bank of Pakistan in issuing the said Draft in favour of a Pakistani national. In this behalf reference has been made to Chapter VI of the Exchange Control Manual. Rule I of the said Chapter deals with the opening of the foreign currency account by foreign nationals and by Pakistani nationals residing abroad. Reference has also been made to Notification No. F. E. 74-59 S. B., dated 25th February, 1959 issued in pursuance of subsection (1) of section 4 of the Foreign Exchange Regulation Act, 1947 in order to remove prohibitions of the said sub--section to the operation of foreign currency account by foreign nationals in Pakistan. The aforesaid provision of law prohibits persons other than authorised dealers in Pakistan except with the previous permission of the State Bank, to "buy or borrow from or sell or lend to, or exchange with any person not being an authorised dealers, in foreign exchange". It would, therefore, appear that this Notification has only removed the prohibition contained in the aforesaid subsection (1) of section 4. It, therefore, follows that the restictions on dealing in foreign exchange contained in subsections (2)' and (3) of section 4 continued to apply. These restrictions prevent all persons except with the previous permission of the State Bank from entering into any transaction which provides for the conversion of Pakistani currency into foreign currency or vice versa at the rates of exchange other than the rates for the time being "authorised by the State Bank. A foreign national who holds a foreign currency account in Pakistan cannot enter into a transaction with a Pakistani national except with the permission of the State Bank so as to pay foreign exchange to such national in accordance with the permission and at the rate prescribed in that behalf. Additionally as pointed out by the learned trial Court the facilities allowed to foreign nationals for operating foreign currency account in Pakistan are subject to certain restrictions under sub-rule (i.e) of Rule 1 of Chapter VI which makes it incumbent that payments from such accounts to beneficiaries in Pakistan can be made only in Rupees. Rule 6 of this Chapter further provides for a total ban on payments of foreign currency by foreign nationals residing in Pakistan to the residents of Pakistan whether Pakistanis or foreign nationals. In view of the aforesaid the argument that appellant Vaqar Hussain was legally entitled to issue the Bank Draft in favour of appellant Nasir Saba is untenable. Clearly by making and issuing the Draft in favour of the latter, appellant Vaqar Hussain abetted the commission of the offence of smuggling., He has, therefore, been rightly convicted by the trial Court.
9. Learned counsel for the appellants have also addressed me on the question of the quantum of sentence. On behalf of appellant Vaqar Hussain, it was contended that he is urgently required to go to England in order to defend divorce proceedings initiated by his were and also attend to proceedings in respect of custody of his children. However, these circumstances hardly have a bearing on the question sentence Nonetheless, regard being bad to the circumstances of this case and the fact that appellant Vaqar Hussain has been constrained to live in this country on account of proceedings in this case since April, 1978. I am of the opinion that the sentence of 15 months' R. I.
Is rather excessive. I, therefore, alter his sentence and direct that be shall be sentenced to R. I. For three months and pay fine of Rs. 20,000 or in default to undergo further R. I. For six months. Similarly the sentence of the other appellant, who is said to be a student, is also altered and he is sentenced to undergo R. I. For three months and to pay fine of Rs. 30,000 or in default to undergo further R. I.
For nine months,
10. In the result, the appeals of both appellants are dismissed with the modification of sentences as above. The appellants are on bail and their bail bonds shall stand cancelled.