The appellant was tried and convicted under clause (8) of section 156(1) of the Customs Act, 1969, by the Special Judge (Customs & Taxation), Karachi by his judgment dated 30-4-79: He has been sentenced to R. I. For l --years and fine of Rs. 15,000, or in default thereof to undergo further R. I. For 12 months. The appellant seeks to challenge his conviction and sentence.
2. Briefly the facts of the prosecution case are that on 5-6-78 the appellant was intercepted by Mr. Abdul Habib Khan, Senior Preventive Officer on duty on his arrival from Dubai at the International Arrival Lounge of the Karachi Airport. Upon search of the baggage nothing incriminating was secured, but from his personal search, it is alleged that pieces of gold from his trouser pockets, underwear and from his shoes were secured. Alongwith the pieces of gold one gold neck-chain and two ear-rings were also secured from the appellant. The total weight of the gold was 129 -- tolas.
3. In support of the case the prosecution examined the Seizing Officer Mr. Abdul Habib Khan, mashir Khursheed Anwar, another Senior Preventive Officer Mr. Abdul Haque Farooqui, Mr. Hisamuddin, Appraiser, Custom House, Karachi and Syed Zafar Ahmed, Senior Preventive Officer, Custom House, Karachi, who investigated the case. The appellant in his statement admitted that he arrived from Dubai on 5-6-78, but denied the gold pieces having been secured from his possession. He admitted, however, that the gold neckchain and two ear-rings were secured from his possession.
He alleged that he had been falsely implicated in the case by Mr. Abdul Habib Khan. The appellant also submitted a statement in writing in which he gave details of the manner in which he was arrested by Mr. Habib Khan with the help of a photograph as soon as he came down from the Plane. In this statement he also asserted that the alleged gold pieces were "neither gold nor it looked like gold". His case is that he has been involved in this case due to family enmity as his brother had divorced his wife whose relations were annoyed with the family of the appellant.
4. On behalf of the appellant it was pointed out that the charge framed against the appellant does not contain any reference to the gold chain or ear-rings, but only refers to 129 -- tolas of gold "which were recovered from your baggage and possession". It was further pointed out that right from the evidence of the first witness for the prosecution P. W. Abdul Habib .Khan, the appellant raised the question that the goods allegedly recovered from the possession of the appellant are not gold. The mashir P. W. Khursheed Anwar stated in cross-examin1tion that when he reached the spot where the appellant was being searched, the gold had already been secured from the pockets of the appellant and that the S. P. O. Told him that the gold had been secured from the appellant. Mr. Abdul Haque Farooqui, another Preventive Officer associated with the search and seizure has claimed that he secured the gold from the appellant. In the cross-examination this witness has stated "I can identify the gold. It has no mark. It is incorrect to suggest that it was not gold."
The evidence of the Appraiser Mr. Hisamuddin is that he had evaluated the C. I. F. Value of the gold in this case which was Rs. 167.20, per tola. He has produced such a certificate. The Investigating Officer Mr. Syed Zafar Ahmed has stated that he got the value of the gold appraised and that the gold was deposited in the State Warehouse by the Seizing Officer. He admits that be did not send the gold to mint for ascertaining whether it was gold or not.
5. Mr. Usman Ghani Rashid, learned counsel appearing for the appellant relied upon certain discrepancies in the evidence of the witnesses and the admission made tending to support the defence version. However, it is not necessary to go into these minor discrepancies and admissions.
The important question raised by the learned counsel is that there is no legal evidence to prove that what was recovered from the possession of the appellant was gold. He also contended that the prosecution has failed to prove that the article recovered from the possession of the appellant except the two ornaments admitted by him, constituted `gold bullion' which is the expression used in section 2(s) clause (2) of the Customs Act, 1969. Taking up the second contention, it may at once be stated that there is force in this contention, for the dictionary meaning of the word "gold bullion" is metal: specially gold or silver, before coining or manufacture. Consequently if the metal was gold in pieces as is alleged by the prosecution, apparently it would fall within the prohibition contained in the aforesaid provision. However, I find force in the first contention of the counsel. As stated above, the evidence produced by the prosecution entirely comprises of the testimony of the Customs Officers on the question whether the article secured from the possession of the appellant was gold. Apparently the three Preventive Officers, namely, P. Ws. Abdul Habib Khan, Abdul Haque Farooqui and Syed Zafar Ahmed do not claim to have any special knowledge or skill as expert to determine whether a particular metal was or was not gold. The learned counsel for the respondent has also not relied upon their evidence in this behalf. However, she contended that Mr. Hasamuddin, the Appraiser of the Custom House, Karachi is an expert witness and has by his testimony proved that the goods in question were gold. There is, however, nothing in the testimony of this witness to claim that he has special knowledge or skill to identify sold or differentiate between gold and other metals. Admittedly the articles were not sent to the official, mint or any other expert for chemical analysis or examination to determine whether the same was gold.
Specially when the question was raised by the appellant during the evidence of the very first witness the prosecution should have taken care to obtain expert opinion on this matter. However, they remained content by merely calling the Appraiser whose testimony only relates to evaluation of the quantity allegedly secured from the appellant. Clearly he did not examine the matter whether the article was gold or not. This is clear from the Certificate (Exh. 7/A) produced by the witness in which he has calculated the value of one tola of fine gold in Pakistan currency with reference to the I. M. F. Rate. He has nowhere stated that he subjected the article to any test with a view to determine whether it was really gold or some other metal.
6. I am also not satisfied that the Appraiser can be an expert in relation to determining the question whether a particular article is gold. Section 3 of the Customs Act, 1969, authorises the Board of Revenue to, inter alia, appoint Officers of Customs and to confer powers and. Duties on such Officer under section 4. In exercise of the aforesaid powers the Board of Revenue by S. R. O. No. 573(1)/75 dated 17-5-1975 appointed in relation to the area of their posting Valuation Officers including the Appraisers and conferred functions on such Officers under the Act. The Appraisers were conferred with powers under sections 26, 48, 91, 92, 198 and 199 of the Customs Act. Having regard to these functions and in absence of any evidence it cannot be successfully urged that the Appraisers are experts in the field under consideration. There is yet another aspect of the matter which has to be taken into consideration. It will be seen that even if the Appraiser, for the sake of argument, be held to be an expert, a bald statement by him that what he examined was gold will be totally insufficient evidence to prove the article to be gold. In Ramkaransingh v. Emperor AIR 1935 Nag. 13it was held that the evidence of the Excise Sub-Inspector who is an expert in his own Department to distinguish liquor will not be sufficient for purposes of conviction if his opinion consists of a bald statement and the Court did not ascertain under section 51, Evidence Act the grounds on which his opinion was based. This judgment has been followed in the Indian Jurisdiction in Paltu v. State (AIR 1961 Madh.
Pra. 5and Gobardhan v. State (AIR 1959 All. 53). In our country the Lahore High Court in Caruls Luch Caleagno v. State (1976 P Cr. L J 643), has held that the evidence of Customs/Excise Officials whether a particular article recovered from the accused was charas could not be relied upon as they have no expert knowledge in the field.
7. In view of the legal position discussed above and the evidence brought on record by the prosecution, I have come to the conclusion that the prosecution has failed to establish that the metal bars secured from the possession of the appellant are of gold, so as to bring this part of the charge within the mischief of section 2(s) read with section 156(1) clause (8) of the Customs Act, 1969. The question, however, remains whether the conviction of the appellant can still be maintained as admittedly he was found in possession of one golden chain and a pair of ear-rings.
It was contended on behalf of the appellant that the charge could be established in respect of these articles only if it was proved that the value of these articles exceeded Rs. 1,000, as provided in section 2(s) clause (a). There seems to be no evidence produced by the prosecution that the value of these articles exceeded Rs. 1,000. The burden of proof lay upon the prosecution to establish this fact.
8. For the foregoing reasons, giving benefit of doubt to the appellant. I acquit him of the charge made against him and set aside the conviction and sentence passed against him. The fine amount be refunded to the appellant.