The appellant Abdul Karim alias Kamoo hag been convicted by City & A. D. M., Karachi (Mr. Muhammad Lutfullabil Majid) Invested with section 30, Cr. P. C. Powers under section 167, Clauses (8-a) and (81) of the Sea Customs Act and sentenced to three years' R. I. And to suffer five lashes.
He appealed to the Court of Session, Karachi but the same was dismissed by the Additional Sessions Judge, (Mr. Ahmad Khan Barakzai). Hence the present revision application.
2. The facts of the prosecution case briefly are these. On 13-7-1966 Mr. Muhammad Khalil Ahmed Shah, Superintendent, Customs (P. W. 2) received secret information in the Directorate of Customs and Intelligence and Investigation that the applicant Abdul Karim alias Kamoo was indulging in smuggling of watches and that such contraband watches were lying in his house at Liaquat Colony, Darayabad, Karachi. A raid was organized and P. W. Muhammad Khalil Ahmed went to the house of the applicant accompanied by his staff and a lady constable. There he called two mashirs one of whom was Haji Abdur Rahman (P. W. 1), who was living on the 1st floor of the house of the applicant and he was his landlord. The applicant was not present in his house then but his wife was there. Accordingly the lady constable was deputed to conduct search of the house while the Customs Officer, his staff and the mashirs were all sitting outside the house on chairs. It is alleged that the lady constable on search brought out few boxes before P. W. Muhammad Khalil Ahmed and the mashirs in which 215 watches of foreign make were found. A mashirnama of this recovery Exh. P/1 was prepared and signed by the said mashlrs and an inventory of these goods Exh. P/2 was also made on the spot. The watches were seized as the wife of the applicant could not produce any satisfactory evidence as to their possession which she said her husband, the applicant, would himself explain. A case was consequently registered and a F. I. R. Which appears on page 3 of the paper-book was filed on the same day by lrjhulam Sarwar Khan, Intelligence Officer, Directorate of Customs Intelligence and Investigation, Karachi. The applicant could not be found until 12-8-66 when by was arrested by the Police and challaned to the trial Court where he took his trial with the result already mentioned above.
3. The applicant when questioned. Under section 342, Cr. P. C. At the trial denied the prosecution allegations and professed innocence. He stated that he aid not know if his house was searched or not as he was not in Karachi. He also repudiated that any of the articles were recovered from his house. He denied that any cash memo. Was recovered from him. Lastly, he stated that the owner of the house has enmity against him and he has involved him in this false case.
4. The applicant did not lead any evidence in defence.
5. The prosecution has examined five witnesses to establish their case who are mashar P. W. Haji Abdur Rehman, p. W. Muhammad Khalil Ahmed who conducted the raid, S. Abrar (P. W 3), Inspector, Central Excise, Shabbiruddin Mirza (P. W. 4) and Muhammad 11yas Baloch, A. C. M. (P. W.
5). From the testimony of these witnesses the prosecution has brought on record the evidence to show that the house of the applicant was searched by the lady constable while the Customs Officer and the mashirs waited outside and the lady constable is alleged to have recovered 215 watches of foreign make in the search by her of the house which she produced before the Customs Officer and a mashirnama and an inventory was made. The applicant, however, was not present in his house at the time of the search which was conducted by the lady constable alone fn presence of his wife. It is noteworthy to mention that the prosecution has not examined the lady constable who conducted the search. Further in the evidence It has been brought on record by P.
W. Shabblruddin Mirza that from the applicant a cash memo. Pertaining to these 215 watches was secured but the same was lost by Syed Mahmoou Ali Askari, who was the Law Officer of the Customs and he had lodged a report for its loss at Iddgah Police Station and also gave an advertisement fn the newspapers which documents have been produced as Exhs. P/7 and P/8 respectively but the cash memo. Was not secured. It is also noteworthy to mention that the alleged seized watches 215 in number were also stolen from the possession of the Customs Authorities during the course of Investigation and they have also not been produced as Exhibits at the trial. The cash memo. Secured from the possession of the applicant regarding purchase of 215 watches showed that it was issued by one Asghar Ali but this Asghar Ali has also not been examined by the prosecution.
6. The learned counsel for the applicant Mr. Manzoor Hussain, Barrister-at-Law has challenged the validity of the search made in this case on numerous grounds and, therefore, pleads that the search being invalid in law the prosecution has not proved beyond a reasonable doubt that the alleged 215 watches were secured in the search of the house of the applicant. The grounds that he has put forward showing the invalidity of the search are the following :-
(i) The lady constable who only is said to have conducted the search has not been examined by the prosecution, therefore, a presumption arises under section 114, illustration (g) of the Evidence Act that if she had been examined she would have supported the defence case and not the prosecution.
(ii) The alleged seized watches are not produced by the prose--cution as exhibits in their evidence in the trial Court.
(iii) The applicant was not present at the time of the search and It is admittedly said to have been made In his absence.
(iv) No mashirs had seen the actual search by the lady constable.
(r) That the provisions of section 172-A of the Sea Customs Act and section 165, Criminal Procedure Code regarding such searches when they are made have not been complied with by the prosecution.
Section 172-A of the Sea Customs Act is as follows : "172A.-Powers to search without warrant.-(1) Whenever any officer of Customs or person duly employed for the prevention of smu ggling has reasonable grounds for believing that goods in relation to which any of the provisions of this Act may be suspected to have been contravened, or goods which may be suspected to be liable to confiscation under any such provision are concealed or kept in any place arid that there is a danger that they may be removed before a search can be effected under the provisions of section 172 he may, after preparing a statement in writing of the grounds of his belief and of the goods for which search is to be made, search or cause search to be made for such goods in that place. Any officer or person who makes a search or causes a search to be made under the foregoing provision shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address. All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).
(2) Notwithstanding anything in subsection (1) any officer of Customs or any person duly empowered as such may, with respect to an offence related to the export of special goods-
(a) arrest without warrant any person concerned In such offence or against whom reasonable suspicion exists that he Is about to be concerned in such offence;
(b) enter and search without warrant any premises to make an arrest under clause (a) or to seize any goods which are reasonably suspected to be intended for export contrary to any lawful prohibition or restriction for the time being In forsel and
(c) for the purpose of arresting, detaining or taking custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.
(3) The provisions of subsection (2) shall apply only to terri--tories lying between the external frontier of Pakistan and line drawn parallel thereto and five mile distant from it, and to any town or place served by a railway and lying wholly or partly within a distance of ten miles from such line.
(4) No prosecution, suit or other legal proceeding shall be Instituted except with the previous sanction of the Central Government in writing, against any person in respect of any--thing done or purporting to be done in exercise of the powers conferred by subsections (1) and (2)s Section 165 of the Code of Criminal Procedure is as under : "Whenever an officer-in-charge of a police station or a Police Officer making an Investigation has reasonable grounds for believing that anything necessary for the purposes of an Investigation into any offence which he is authorised to investigate may be found in any place within the limits of the Police Station of which he 1s incharge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
(2) A police officer proceeding under subsection (1) shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made ; and such subordinate officer may thereupon search for such thing in such place.
(4) The provisions of this Code as to search warrants and the general provisions as to searches contained In section 102 and section 103 shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under subsection (1) or sub--section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate Provided that he shall pay for the same unless the Magis--trate for some special reason thinks fit to furnish it free of cost."
It will be seen from the provisions of section 172-A of the Sea Customs Act that when this search was made without a warrant the Officer of Customs making the search had to prepare a state-- ment In writing of the grounds of his belief as specified in this section and of the goods for which search had to be made by that officer or the person who makes a search or causes a search to be made under this section had to leave a signed copy of the aforementioned statement in or about the place searched and also at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address. No witness of the prosecution has said that this direction in this provision has been complied with. Furthermore, it will be seen from the provisions of section 165, Cr. P. C. That it would be applicable in case of search as done in the present case and the nofficer making the search had before the search to send the grounds of search to the Magistrate having jurisdiction and to said search had to be conducted in presence of two mnsh#rs> This direction 9n this section has also not been compiled with by the prosecution. It is needless to say that this direction is given under section 165, Cr. P. C. In order to afford protection from false searches to persons whose searches are conducted by any police officer or Customs Officer.
7. This argument of the learned counsel for the applicant I find has great force and it does lead to a reasonable conclusion that when the search alleged to have been made of the house of the applicant is so full of legal flaws obviously the result of it cannot be relied upon implicitly or beyond a reasonable doubt so that it may be held to be true. This point itself makes the whole prosecution case doubtful and the learned counsel for the respondent State has not been able to satisfy me on this ground as he merely stated that the illegality of the search did not affect the trial of the case.
Upon this I told him that the defence was not only challenging the search to be illegal on certain legal grounds but on facts also it showed that the search was not reliable, therefore, the question of illegality of search only was not involved for consideration. He was unable to reply to this argument. I am, therefore, of the opinion that the search conducted by the Customs Officer in this case particularly when the lady constable who was the only person who conducted the search in the absence of others has not been examined nor the articles alleged to have been recovered at the search have been produced before the Court This circumstance clearly raises a doubt in the mind of the Court whether the result of the search should in such circumstances be relied upon or not. I am of the opinion that the result of the search in these circumstances cannot be implicitly relied upon without some ether evidence to support it which is obviously lacking in this case.
8. A further argument also helps the case of the defence and that is that the counsel for the applicant contended that the notification of the Government making the alleged seized watches as being prohibited article for import has not been produced by the prosecution at all and thus it is not known whether the alleged recovered watches were prohibited and banned from import. In reply to this argument the learned counsel for the respondent relied upon section 177-A of the Sea Customs Act which is as follows :- "177-A.-(1) Where any goods to which this section applies 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.
(2) This section shall apply to such goods as the Central Government may, by notification in the official Gazette, specify to this behalf,
(3) Every notification issued under subsection (2) shall be laid before the National Assembly as soon as may be after it is Issued."
Relying on this section he contended that the burden of proof to prove Innocence was on the applicant once the possession of the prohibited articles was proved against him. Precisely this has not been done in the present case i.e. The possession of the alleged watches has not been proved beyond a reasonable doubt as held above with the applicant. However, even if we assume for argument sake that the possession of the seized goods was with the applicant still subsection (2) of section 177-A of the Sea Customs Act lays down that this section shall apply to such goods as the Central Government by a notification in the official Gazette specify in this behalf which shows clearly that the notification of the Central Government with regard to restriction on such goods has to be produced by the prosecution but this has not been done in this case. This notification is all the more necessary because as provided by subsection (3) of this section it is to be laid before the National Assembly as soon as may be after it is issued. In the absence of a notification showing the prohibition or restriction of this alleged seized watches it cannot be held that the import of these watches was actually banned. The learned counsel for the State in this behalf also relied upon the provisions of clause 81 of section 167 of the Sea Customs Act which is in the following terms :-- Section of Offence this Act to Penalties which offence has reference "81. If any person, without General. Such goods shall lawful excuse, the proof of be liable to con-- which shall be on such person, fiscation and the acquires possession of or is in person concerned any way concerned ~ in carrying,in such offence removing, depositing, harbour-shall, on convic-- ing, keeping or concealing or intion before a any manner dealing with any Magistrate, tie goods which have been unlaw-liable to imprison fully removed from a ware rnent for a term house, or which are chargeable not exceeding six with a duty which has not been years, or to a fine paid, or with respect to the not exceeding five Importation or exportation of times the value of which there is a reasonable the goods, or to suspicion that any prohibition both, and in car restriction for the time being addition shall also in force under or by virtue of ke liable if the this Act has been contravened ofMagistrate in his if any person is in relation to discretion so any such goods in any way, orders, to the 23 without lawful excuse, the proof-punishment of of which shall be on such person whipping. " concerned in any fraudulent ova= sion or attempt at evasion of any duty chargeable thereon or of any such prohibition or rest-- riction as aforesaid or of any provision of this Act applicable to those goods.
It will be seen from the perusal of this clause that possession the alleged contraband goods is to be proved by the prosecution or It is to be proved that a particular person was in any was concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any contraband goods. But the prosecution obviously as has been held above has failed to prove the possession of the alleged seized watches with the applicant beyond a reasonable doubt and obviously, therefore, his concern with the said watches has also not been established. In support of his contention he also relied upon the decision of the Supreme Court reported in Federation of Pakistan and another v, Sardar All and others (1). In this case it has been observed by their Lordships as under-- "Under section-177-A, if any question arises in respect of goods covered by item 81 of section 167 as to whether duty has been paid or secured in respect of them or whether they had been lawfully imported, the burden of proof would lie upon the person in whose possession the goods were found or from whose premises they were recovered or who claimed their ownership."
Obviously, this authority is of no help to the prosecution as it has not been established beyond a reasonable doubt that the appellant was possessed of the alleged seized goods nor he claims them.
9. The learned counsel for the applicant also lastly argued that if the cash memo. Secured from the applicant. Which pertained to the sale of the seized watches to the applicant by Asghar Ali had been produced by the prosecution or that Asghar Ali W [icon put into the witness-box the applicant in his defence would have been able to make out that he has purchased these watch cw from Asghar Ali. In the absence of that cash memo. Which was obviously in the possession of the prosecution but the same wa,, lost by it the applicant is prejudiced in his defence due to Its absence as he would have been able to prove his innocence if be was possessed of the cash memo. I reed hardly say that this argument has any amount of force as the applicant might have teen able to prove his innocence if the cash memo. Was availabl to him. Tbis argument was obviously in the alternative to the, defence already discussed ^ hove. It might be mentioned hear (1) PLD 1959 SC (Pak.) 25 that P. W. Shabbiruddin Mirza has deposed that the cash memo. Recovered from the pocket of the applicant related to the purchase of 215 watches from one Asghar & Co., Karachi. This witness further says that he was deputed to verify if the cash memo. Wasgenuine or not so be contacted Asghar Ali, the proprietor of the firm and confronted him with the cash memo. According to him Asghar Ali, however, stated before him that he had not issued the cash memo. Obviously this statement by P. W. Shabbiruddin Mirza is not admissible in evidence as Asghar Ali has not been examined by the prosecution who could have been put by them into the witness box if they had so desired. In fact Asghar Ali has been examined under section 164, Cr. P. C. And his statement under that seztion which was recorded by P. W. Muhammad Ilyas Baloch, A. C. M. Karachi and it has been produced by the latter as Exh. P/5 but needless to say that this statement by Itself is not a substantive piece of evidence and does not help the prosecution case.
10. For all the foregoing reasons it is quite clear that the applicant cannot be held guilty of the offence charged with and as such he is acquitted. His conviction and sentence are set aside. He is on bail and his bail bonds shall stand cancelled.