1. ' Appellant abovenamed being aggrieved by Judgment dated 13th January,1982, of the learned Special Judge (Customs and Taxation), Karachi, in Case No,165 of 1981, by which appellant has been convicted under section 156(1)(8) Customs Act ,1969 and sentenced to suffer R.I.For 5 years' and to pay fine of Rs,2,00,000 or in default to suffer further R.I. For 2 years, has filed the above appeal on the following facts and grounds:- ' The prosecution case against the appellant as unfolded at the' trial is, that on 27th September, 1981 Customs Authorities at the Karachi Airport received, spy information, that huge quantity of Pakistani Currency would be smuggled to Gulf States. Persuant to such information S.P.O.
2. Khursheed Qamar kept vigil in the Departure Hall on the outgoing passenger bound for Dubai by flight No,GF-761, who were being briefed at the Gulf Air Line Counter. At about 2.30 p.m. The briefing of all the passengers was almost completed. The enquiries at the counter revealed, that one more passenger remained to be briefed. The S.P.O. Therefore went out-side the gate of the Departure Hall and found appellant Shahid Mahmood with a trolly standing in the Verandah. A hand bag was already placed in the trolly. After a while he noticed a Mazda Car reaching the Airport and being parked at a distance of about 40 to 50 yards from the Verandah. Two persons viz. Co-accused Naseem Shah and another unidentified person were in occupation of the car. Co-accused Naseem Shah was sitting in the back seat of the car, while the other one had driven it into the Airport. The unidentified person, who had driven the car alighted down, opened the boot of the car, took out of the dickey a suitcase and delivered the same to appellant Shahid Mahmood. Co-accused Naseem Shah and the unidentified person in the same car then went away, while appellant Shahid Mahmood brought the suitcase in the trolly to the Gulf Air Line Counter, and duly checked in all the briefing formalities for his departure to Dubai, S.P.O.Khursheed Qamar, who was shadowing him then intercepted appellant Shahid Mahmood and in presence of Fazal Khan and P.W. Junaid Bin Soz enquired from if he had any currency, gold or any other article which needed to be declared.
3. F.W. Fazal Khan and P.W. Junaid are respectively employees of Airflot and Gulf Air Line-and were on duties at their respective briefing counters. Appellant Shahid Mahmood replied in the negative. The S.P.O.Being dissatisfied with his reply, informed the appellant, that he wanted to search his baggage and person. The appellant declined to subject himself to such search. The S.P.O. However, took the appellant, the aforesaid Mashirs and the luggage of the appellant comprising of the hand bag and the suitcase duly tagged to Customs Checking Counter. The S.P.O. Also called A.C. Abdul Waheed Khan to supervise the search etc. He secured the bunch of three keys from the possession of the appellant and with one of them he opened the suitcase and detected, that the suitcase contained Pakistani Currency amounting to Rs,22 lacs. He also secured from the personal search of the appellant Boarding Card, Ticket, Claim Tag, Passport, Health Certificate, Driving Licence, National Identity Card (Exh.3A/1 to Exh.3A/8). He also seized the tag attached to the suitcase (Exh.3B). The No of the tags detected from the suitcase and that of the counterfoil secured from the possession of the appellant tallied with each other. The S.P.O. Prepared Mashirnama (Exh.3C) He also served upon the appellant notice under section 171 of the Customs Act, (Exh.3D). He then lodged the report (Exh.3E). It may however, be mentioned that the F.I.R. Did not disclose the names of co-accused Naseem Shah and his role is as described above. The F.I.R. Is therefore reproduced in extenso for convenience sake:- "An information has been received that Pakistani Currency was being smuggled out of Pakistan to Gulf countries. In pursuance of this information I maintained intensified vigil on the outgoing passenger bound for Dubai by Gulf Air Flight GF-761 on 27th September, 1981. When Shahid Mahmood son of Abdul Rauf had completed briefing formalities at the Air Line counter, I intercepted him along with his baggage comprising of one suitcase bearing baggage Tag No,Gulf Air 778220. He was questioned whether he was in possession of any contraband goods either in his baggage or on his person to which he replied in negative. Having been dissatisfied with his declaration, I opened the said suitcase with the keys which were taken from the said passenger in presence of the Mashirs viz. Fazal Khan and Junaid, and examined the suitcase. The examination resulted in the recovery of Pakistani Rs,22,00,000 (in hundred rupees denomination) from the said suitcase. The contraband currency alongwith all the travelling documents as specified in column No,5 were seized under a Mashirnama prepared on the spot. The passenger/appellant Shahid Mahmood was arrested accordingly.
4. ' Investigation is in progress.
5. ' F.I.R. Is lodged accordingly.
6. (KHURSHID QAMAR)
7. ' Complainant."
8. ' After registration of the crime, the investigation was conducted by P.W. Muhammad Ayub P.O. On 28th September, 1981. P.W. Muhammad Ayub interrogated the appellant and on 29th September, 1981 after service of notice under section 163 of the Customs Act upon co-accused Naseem Shah, he search his house in his presence and impounded his passport, Gulf Air Line Ticket, Two Diaries, Pieces of papers, a Torn paper having some telephone Nos., Health Certificate and some photos (Exh. 5A/1 to Exh. 5A/9) and prepared such Mashirnatria (Exh. 5B). The Air Line Ticket showed, that co-accused Naseem Shah also was to travel to Dubai by the same flight by which appellant Shahid Mahmood was to fly. The search was supervised by P.W. Qazi Musarat Husain I.P.S. And the two Mashirs P.W. Iftikharullah and Jamaluddin witnessed the same. The 1.0. Also arrested co- accused Naseem Shah and P.W. Kazi Musarat Husain. Served upon the appellant notice under section 171 of the Customs Act (Exh.8B). On 1st October, 1981 the 1.0. Recorded the statement of P.W.
9. Junaid and on 6th October, 1981 he recorded the statement of P.W. Iftikharullah and Jamaluddin. He tried to contact P.W. Fazal Khan at the place of his duty, but could not find him till 15th October, 1981 the 1.0. Secured from the Gulf Air Line, the manifest (Exh. 10A) which mentions the names of the appellant as well as co-accused at serial numbers 003 and 039. The investigation was completed and the appellant as well as co-accused were sent up to face their trial.
10. ' Both the appellant as well as co-accused pleaded not guilty to the charge framed against them, under section 156 (1) (8) of the Customs Act. They proclaimed complete innocence and their case is of bare denial. They totally denied the allegations in their statements under section 342, Cr.P.C.
11. The plea of appellant Shahid Mahmood was of substitution, while the case of co-accused Naseem Shah was that he is in no way connected with the crime and has been falsely involved. The appellant as well as co-accused filed written statements (Exh. 11/A and Exh. 12/A). These statements are in the following terms:-- Apellant Shahid Mahmood (Exh. 11/A).
12. "I am innocent and have nothing to do with the suitcase and currency contained in it which was lying in the examination hall before my arrival at the Gulf Air ' ' Counter.
13. "I am a petty businessm an. I go to Gulf and obtain orders of different articles and earn my livelihood. There is no evidence that I was briefed at the counter. Fazal Khan is a stock witness No witness including stock witness Fazal Khan has alleged, that suit-case was brought by me in the examination hall. I am a poor man and no one can trust me with such a huge amount of money. I attached herewith photostat copies of the passengers list. The list of those person, who were actually briefed does not show my name.
14. ' The original list shows the endorsement of 'No show' against m name. There is no endorsement of "off loaded by Customs" as the usual procedure in such cases.
15. ' In circumstances I may kindly be acquitted as I am innocent."
16. Co-accused Naseem Shah (Exh. 12/A).
17. "I am innocent. I am doing lawful business of garments in Karach and at Dubai.
18. ' There is no admissible evidence against me. I do not own an white Mazda Car.
19. ' I did not go to Airport on the relevant date.
20. ' My wife was admitted as an abortion case night previous to b alleged incident. Medical Certificate to this effect was submitte with the bail application to trial Court, which is on the file.
21. ' Not a single person has deposed against me in his deposition recorded under section 161, Criminal Procedure Code. F.I.R. (which is the statement of the Seizing Officer under the law) and Mashirnam also do not reveal my presence at the Airport.
22. ' With Mazda car and the person who allegedly opened the dickey the car are non-existent and imaginary. The alleged incident occurred on 27th September, 1981. I was arrested on 29th September, 198 and bail application was heard on 2nd October, 1981 and bail order was passed by Hon'ble Court on 7th October, 1981. During this entire period no evidence was available with the prosecution, except the alleged statement of the appellant. Bail order on the record may kindly be seen to this effect.
23. "That on 14th October, 1981, the appellate Court asked specific question from the prosecution and Investigating Officer as well, whether any evidence other than disclosure by the appellant was available and they replied in negative.
24. ' Bail was granted as disclosure by the appellant is no evidence. Statement under section 161 were supplied on 21st October, 1981, several days after the submission of challan and after deliberation, consultation and concoction; which establishes conclusively that story of white Mazda car is an afterthought without any reality. In circumstances it is prayed that I may kindly be acquitted as I am innocent. I have committed no offence and there is no evidence admissible against me."
25. ' None of the accused adduced any evidence in his defence. Appellant Shahid Mahmood however, simply produced photostats of two passengers manifests (Exh.11/B and Ex.11/C).
26. The prosecution in support of their case examined P.W.1 Khursheed Qamar S.P.O. (Exh.3), P.W.2 Fazal Khan Deputy Airflot (Exh.4) P.W.3 Muhammad Iftikhar (Exh.5), P.W.4 Kazi Massarat Husain Inspector (Exh.8) P.W.5 Junaid Bin Soz, Pasenger Service Agent (Exh.9) and P.W.6 Muhammad Ayyub P.O.
27. (Exh.10).
28. The learned trial Court taking into consideration the evidence adduced before it, while acquitting the co-accused Nasim Hassan Shah convicted the appellant above named as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under:--
(a) that in the F.I.R. The complainant i,e, Seizing Officer did not mention anything about Mazda Car bringing the suitcase in question and handing over the same to the appellant and thereafter the appellant brought the suitcase to the counter of Gulf Airways, the learned counsel submitted this shows improvement made by the prosecution in its story, in order to save the co-accused Nasim Hasan Shah.
(b) That the 2 Mashirs of the alleged seizure of the suitcase in question are P.W. Junaid and P.W.
29. Fazal. According to P.W. Junaid the appellant had come to the briefing counter, which only one attach/ hand bag and had stated that he had no other luggage and was being briefed, when the Seizing Officer P.W.1 Khurshid Qamar interrogated him and showed him a suitcase which was lying in front of first class counter and enquired from him whether it belonged to him, to which the appellant replied in the negative. This P.W. Junaid also denied recoveries of the keys of the said suitcase from the appellant as alleged in Mashirnama and explained that he had not read the Mashirnama before signing and further stated that the said suitcase was not opened in his presence. P.W. Fazal the other Mashir of the alleged seizure is admittedly a custom man, which is evident from the fact, that in his cross-examination he admitted, that he had acted as a Mashir of the custom in 5 or 6 cases. In addition to this this P.W. Was also challaned for smuggling, although ultimately he was acquitted on account of liniency shown by the Customs Department and as such he is under the obligation of the Customs department and consequently no reliance can be placed on his statement. Similarly the statement of the seizing officer who did not mention the fact that co-accused Came in Mazda Car and delivered the suitcase in question to the appellant in the F.I.R., makes his statement suspicious and cannot be relied upon without independent corroboration. In view of these submissions the learned Advocate submitted, that by the statement of P.W. Junaid, who did not support the prosecution case and was declared hostile, the prosecution case against the appellant has become doubtful, as no reliance can be placed on the statements of P.W. Fazal Khan and seizing officer Khurshid Qamar, without independent corroboration as already stated by him.
(c) The learned counsel further submitted, that on this very flight co-accused Nasim Hasan Shah was also booked for Dubai, which is evident from Exh. 10-A and is fully supported by his ticket which has been produced by Investigating Officer P.W. Muhammad Ayoob before the learned trial Court and as such statement of the appellant that he had nothing to do with the said suitcase cannot be ignored, in the face of the statement of P.W. Junaid and the admitted fact that co-accused Nasim Hasan Shah was also booked on the same flight for Dubai.
30. ' In view of the above submissions the learned counsel for the appellant submitted, that prosecution has failed to prove its case beyond reasonable doubt. The learned Advocate appearing for the State on the other hand submitted, that prosecution by the statement of P.W.
31. Fazal Khan and Seizing Officer Khurshid Qamar has established beyond doubt that the suit case in question was seized after the same was presented by him at the briefing counter and as such no reliance can be placed on the statement of P.W. Junaid, who has been won over by the appellant.
32. The learned Advocate for the State further submitted, that mere fact that P.W. Fazal had acted as a Mashir for the customs in 5 or 6 cases by itself does not make his evidence unreliable.
33. ' I have carefully considered the above submissions made by the learned Advocate before me and have gone through the R & P of the learned trial Court as well as the impugned judgment.
34. I have gone through the statement of P.W. Junaid, P.W. Fazal Khan and Seizing Officer Khurshid Qamar. In my opinion no reliance can be placed on the statements of P.W. Fazal and Seizing Officer Khurshid Qamar, without independent corroboration, due to the reasons, namely that P.W. Fazal Khan is a stock Mashir of the customs, as admitted by him and secondly as Seizing Officer Khurshid Qamar did not mention the fact of Mazda Car coming outside departure loan and the person handing over the suitcase to the appellant, which appellant took to the counter. Such corroboration in my opinion is not at all available and in the face of the statement of P.W. Junaid, which I find straightforward and convincing in my opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant abovenamed.
35. ' Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal.