1. ' This appeal is filed against the impugned judgment, dated 7-6-1984 of learned Special Judge (Customs and Taxation) whereby appellant has been convicted for offence under section 156 (I)
(8) of the Customs Act and is sentenced to R.I. For 3 years and fine of Rs, 1,00,000 and in default of the payment whereof he is further sentenced to R.I. For one year.
2. ' Briefly stated the relevant facts giving rise to this appeal are that on 10-6-1983 appellant had come to Karachi Airport from Sharjah by P.I.A. Flight. Investigating Officer namely M.Saleem Shaikh Inspector F.I.A. Had spy information, acting on which he spotted appellant in Arrival Hall and took him to conveyor belt, from where appellant retrived his suitcase and thereafter appellant and the suitcase were brought to the Counter of Customs, where with key produced by the appellant the suitcase was opened and from the false bottom 500 Tolas of gold in the shape of slabs of foreign made was recovered. After completing other steps of Investigation, challan was represented.
3. ' Prosecution examined three witnesses before the trial Court P.W.I is Jahangeer Ahmed, Senior Preventive Officer of Customs who has attested Mashirnama of recovery P.W.2 Muhammad Saleem Inspector F .I. A . Is Investigating Officer. P.W.3 Azizur Rehman is Gold Smith who has certified that the Gold in question is of foreign made.
4. ' Appellant in his statement under section 342, Cr.P.C. Before the trial Court has denied prosecution allegations and stated that he has been implicated falsely and the P.Ws. Who have deposed against him had spoken lies and were set up by Police. He did not produce any witness in defence.
5. ' Before the trial Court P.W.I. Jahangeer Ahmed had deposed about the facts as stated above and testified that gold was recovered from cavities in the false bottom of the suitcase. There were in all 50 slabs of gold and each weighed about 10 Tolas. Total weight of gold came to 500 Tolas. He and Ali Muhammad acted as Mashirs. He produced Mashirnama Exh. 6-A. He further stated that Inspector Saleem Shaikh has seized tag attached to the suitcase and claim tag was recovered from the appellant. He produced passport, P.I.A. Ticket, claim tag and baggage tag as Exhs. 6B/I to 6B/5. There is nothing in the cross-examination of this witness to suggest that he has falsely implicated appellant. This witness absolutely has no motivation whatsoever against the appellant to involve him falsely as the appellant is not known to him at all. A suggested question was put to him whether Mian Karim came at the Airport and he replied in negative. P.W.2 is Muhammad Saleem Inspector F.I.A. Who has reiterated the facts of the case as stated above. There is nothing adverse in the cross-examination of this witness to suggest that he has any motive or reason to falsely implicate the appellant. No such motivation has been suggested to him in the cross- examination. Only one suggestion was made to him that he had seen Mian Muhammad Karim at the Airport and said Mian Karim later disappeared. He denied this suggestion. The third witness is P.W.3 Azizur Rehman who is Goldsmith. He has deposed that gold recovered was of foreign made.
6. ' Evidence produced by the prosecution has been criticised by the learned counsel appearing for the appellant on the ground that originally two Mashirs had attested Mashirnamas and their names are All Muhammad son of Muhammad Umer and Habib son of Din Muhammad. Both of them have not been examined. Both these Mashirs are employees of the Government and worked at the Airport. Mashir Ali Muhammad is employee of Health Department and is posted at the Airport while Habib son of Din Muhammad is loader of P.I.A. And worked at terminal No, I. It is further submitted that instead of producing one of the Mashir's prosecution chose to produce P.W.I Jahangir Ahmed who is a Custom Officer. There is no dispute about the fact that Jahangir Ahmed has also attested Mashirnama of recovery. Production of this witness as Mashir has not done any harm or caused prejudice to the case of the appellant. He has attested Mashirnama of recovery as such he could be used as good a Mashir as any other. Under the law there is no bar not to examine Custom Officer as a Mashir.
7. ' Another aspect of this case is that appellant before the trial Court had taken various pleas. First he pleaded guilty and filed an application to that effect which is on the record as Exh. 'A' Subsequently he took up the plea that one Fakir Muhammad in Dubai gave him the suitcase for delivery to Mian Muhammad Karim at Karachi. This is so appellant. Later on the appellant filed another application Exh. 4 according to which he had backed out from the previous two pleas and once again admitted commission of offence. The learned trial Judge adjourned the proceedings and sent appellant to judicial custody perhaps for the reason that there should be sufficient time given to him for proper reflection over the matter. On the next date appellant appeared in the Court and pleaded not guilty.
8. Correct legal position is that no importance is to be attached to the fact that different pleas were taken by the appellant because under the law an accused person is entitled to take any plea or he can deny allegatiion in totality. It is the duty of the prosecution to prove the case against the accused beyond doubt. In this case the prosecution has done its duty and its case stands prove beyond doubt which is amply reflected in the evidence of prosecution witnesses produced before the trial Court.
9. Learned counsel for the appellant argued that co-accused Mian Muhammad Karim was tried alongwith present appellant and he has been acquitted by the trial Court. The learned trial Court has given sufficient reasons for doing so. Prosecution could not produce evidence of incriminating nature against acquitted co-accused to connect him with crime. No acquittal appeal has been filed by the State against Mian Muhammad Karim.
10. ' After perusal of evidence on the record and hearing of the arguments of both the learned Advocates I am of the view that case stands proved against appellant Iftikhar Ali. Learned counsel for the appellant then prayed for reduction of sentence. According to him appellant was arrested on 10-6-1983 and since then he has constantly remained in custody. Impugned judgment was announced on 7-6-1984 whereby appellant has been sentenced to R.I. For 3 years and fine of Rs,1,00,000 or in default R.I. For 1 year. Trial Judge has already given benefit of section 382-B, Cr.P.C.
11. In the impugned judgment with direction that this period of detention already under gone by appellant shall be deducted from the substantive sentence. One humanitarian ground urged is that appellant is the only bread winner of his family and used to work as a labourer in a foreign country in order to earn enough to maintain his family. He has children also and the children wrote to him a letter in Jail which the appellant produced before the trial Court which is on the record.
12. Taking this and the other humanitarian grounds which were urged by the learned counsel for the appellant, I maintain the conviction but reduce the sentence from three years' R.I. To 21 years and also reduce the sentence of fine from 1,00,000 to 50,000 or in default R.I. For six months. With this modification the appeal is dismissed. ##TE# 1