' This appeal under section 185(F) of the Customs Act of 1969 (hereinafter referred as the Act) is directed against the judgment dated 12-2-1985 of the Special Judge Quetta whereby he convicted the appellant for offence under section 156(1) 89 of the Customs Act and sentenced him to suffer R.I. For two years' and pay a fine of Rs, 1,000 or in default in payment thereof to suffer R. I. For 6 months more.
2. The facts giving rise to this appeal as disclosed by the prosecution are that on 27th of October, 1983 P. W. Ghulam Mustafa Inspector of Customs received secret information that foreign currency was being smuggled from Chaman to Quetta. To check the smuggling of currency the above-said Customs Inspector kept vigilance. At Belleli Check Post, the appellant was found sitting in a passenger bus. He was asked if to be in possession of any foreign currency but he denied to have it. He was taken to the check post and searched. From his possession sixty-five lac Irani currency tied around his waist in presence of witnesses Baciar Ali and Muhammad Ikram Customs constables vide memo. Ex.P/A was recovered. Notice under the provisions of section 171 of Customs Act was given to him for illegal import of the foreign currency. A case of smuggling vide F. I. R. No, Exh. P/F was registered against him. He was arrested and sent for trial before the Special Customs Judge-Quetta, where charge for offence under section 156(1) 89 of the Act was framed against him to which he did not plead guilty and claimed for trial.
3. In support of its case the prosecution examined P. Ws. Ghulam Mustafa Inspector and Baciar Hussain Jafari. In statement under section 342, Cr. P. C. He explained the possession of the currency in the words as follows :- "I originally belonged to Iran and before that I was a resident of Afghanistan. We had a shop in Iran.
We came from Iran and at Chaman my father told me to take the currency to Quetta for getting it exchanged from some bank as there was no bank at Chaman who exchange the Iranian currency.
I was bringing the currency from Chaman to Quetta teyexchange it from the bank. I have one uncle Haji Saifuddin at Quetta and through him 1 wanted to exchange the currency. I had given these facts to the customs authority at Belleli Check Post. The Customs staff had told me that they will exchange Irani currency but subsequently seized the same. The Customs authorities have confiscated the amount. When my father came to know about this incident, then he died due to heart failure. 1 am Afghan refugee and I produce a photostat copy of my Muhajir Card Exh. R./A.
Note :-Original seen and returned) I am innocent."
' In his defence he examined his uncle Haji Saifuddin who supported his statement. However the learned Special Judge found the appel!Ant guilty for the offence under section 156(1) 89 of the Act and convicted and sentenced him to suffer R. I. For 2 years, and fine of Rs, 1,000 or in default to 6 months more.
4. Being aggrieved and dissatisfied with his conviction and sentence the appellant has filed this appeal before this Court.
5. Mr. Yahya Bakhtiar Advocate appeared for the appellant whereas Mr. Amirul Mulk Mangal, the learned Advocate-General appeared for the State.
6. In support of his appeal the learned counsel for the appellant has raised the following grounds :-
(i) That mere possession of foreign currency per se is not an offence punishable under section 156(1) 89 of the Customs Act.
(ii) That the currency belonged to appellant's father who was an Afghan refugee, who had brought it into Pakistan and intended to get it exchanged at Chaman, but on Customs authorities' advice the money was carried by the appellant to the State Bank at Quetta and no offence was committed by him.
(iii) That carrying of foreign currency from Chaman to Quetta is not an act of smuggling.
7. On the other hand Mr. Amir-u-Mulk Mengal, the learned Advocate-General vehemently repudiated the contentions of the appellant and emphasised that mere possession of foreign currency in Pakistan was sufficient violation of the Act and submitted that the foreign currency was recovered from the possession of the appellant and having failed to explain its legal possession had committed the offence punishable under section 156(1) 89 of the Act, and was rightly convicted by the learned Special Judge (Customs).
8. In support of his appeal Mr. Yahya Bakhtiar, the learned counsel for the appellant contended that the appellant was a young Afghan refugee who with his father had taken refuge in the month of September, 1983 in Pakistan and the money was brought by his late father. He and his father had contracted the Customs Authorities at Chaman regarding the exchange of money but the Customs Authorities had advised them to get it exchanged from State Bank of Pakistan at Quetta and the appellant under the direction of his father and on advice of the Customs Authorities had carried the money to Quetta where his uncle Saifuddin would have helped him in that respect. The appellant immediately on enquiry of the Customs Authorities had disclosed the possession of the currency at Bellali Check Post, hence only notice under section 171 of the Customs Act was given to him at that time and the appellant replied to the notice accordingly. But surprisingly on no fault of the appellant a case of smuggling of foreign currency was registered against him.
9. To prove factum of his being Afghan regugee the learned counsel referred to his Identity Card (Annexure 'B') certificate issued by the National Liberation Front Afghanistan (Annexure 'C') and Ration Permit (Annexure `D').
10. Mr. Yahya Bakhtiar the learned counsel for the petitioner further contended that bringing of unlimited foreign currency in Pakistan was a permissible item under Notification F. E. 1/78 S. B. Dated 11th May, 1978 but the same was only to be exchanged within a period of three months from the day of its import and by another Notification No, SRO-1016(1) 79 a traveller was also allowed to bring unlimited foreign exchange with him, dated 17-10-1979 and the appellant within the prescribed time was going to Quetta to get it exchanged. In view of these both Notifications possession of the foreign currency per se is not an offence punishable either under the Act or any other law. In support of his contentions the learned counsel relied upon
(i) Customs Case No, 13 of 1984.
State v. Muhammad Qasim decided by the learned Customs Judge Khuzdar on 29-11-1984.
(ii) Case No, 1 of 1984.
State v. Muhammad Din and others decided on 17th September, 1984 by Special Judge, Khuzdar.
(iii) Case No, 7 of 1983.
State v. Wall Muhammad and others decided by Special Judge Quetta on 11-10-1983.
(iv) 1978 P Cr. L J 155.
(v) PLD 1978 Kar.
774.
(vi) PLD 1979 Kar.
68. (vti) PLD 1981 Quetta 1. The decisions of the above cases have no relevancy with the case in band.
' In the above-said cases mere possession of foreign currency within period of 3 months after its import in Pakistan by itself was found not to constitute an offence punishable under Foreign Exchange Regulation Act, 1947. But in the instant case the appellant was found to have violated the Act and to had committed offence punishable under section 156(1) 89 of the Customs Act, 1969 as word "Foreign Currency" has been added in definition of smuggling in section 2(s) of the Customs Act. The possession of the currency having been successfully proved by the prosecution through the trustworthy evidence then under section 156(2)/89 of the Customs Act the burden shifted to the appellant to have shown as to how and when he came in possession of the currency and its possession was not violation of the Act. The explanation submitted by the appellant that the currency belonged to his father with whom he had gone to Customs authorities at Chaman who advised them to get it exchanged at Quetta was not found to be satisfactory explanation by the learned trial Judge. Besides the Iranian currency cannot be legally exchanged in Pakistan. Hence even evidence led in defence does not absolve him from the criminal liability. And there is no reason for me to disagree with his view. The mere fact of his being an Afghan refugee does not exonerate him from the criminal liability.
11. The reliance of the appellant on the two Notifications referred hereinabove does not strengthen his case. By the Notification F. E. (1)78S. B., dated 11th May, 1978 a person is permitted to bring into Pakistan unlimited amount of foreign currency but that through authorized routes notified under section 9 of the Act and then to the importer has to make a declaration thereof and get it exchanged within a period of three months. In the instant case according to his own version the appellant had entered Pakistan through unauthorized route hence he even cannot get benefit o the notification. By second Notification a traveller is permitted to bring foreign currency in Pakistan.
This also does not come to his rescue as he is not in possession of valid passport so as to fall within the definition of word traveller in view of the circumstances shown hereinabove.
' Import of foreign currency into Pakistan unless passed through legal process as envisaged under the Act is an act of smuggling which is punishable under section 156(1) 89 of the Act. The case of the appellant falls within the mischief of the Act.
12. In identical case No, 6 of 1983 the learned Special Judge Customs Quetta on 20-11-1983 had convicted an Afghan refugee and his conviction and sentence was upheld by this Court on 14-4- 1984. The Supreme Court of Pakistan in Criminal Petition No, Q-2 of 1984 refused to grant leave on 8-5-1984. It would be profitable to reproduce the relevant observation as under :- "It was contended by the learned counsel for the petitioner that by Notification No, F. E. 1/78 S. B., dated 11-5-1978 issued by the State Bank of Pakistan any person is permitted to bring into Pakistan from any place outside Pakistan without limit any currency notes or bank notes and as such the petitioner could not be charged or tried for an offence of smuggling of foreign currency. This contention was repelled by the learned Special Appellate Court (Customs) relying upon the proviso to the notification in question according to which a person at the time of his arrival is required to make a declaration in the form prescribed by the State Bank of Pakistan in this behalf of the total amount of notes brought in by him if so required by the Customs authorities. A plain reading of the notification would make it clear that the restriction with regard to bringing foreign currency into Pakistan is waived in respect of persons arriving into Pakistan. Such arrival into Pakistan should necessarily be through such authorized routes or places which are manned by Customs staff and are declared ports, airports or land Customs-stations within the meaning of section 9 of the Customs Act, 1969 by a notification issued by the Board in the official Gazette. The question of requiring any person to make a declaration at the time of his arrival would hardly arise in the case of those persons, who enter into Pakistan otherwise than through authorised routes which are not manned by any Customs Officials. The petitioner is said to be an Afghan national and was apprehended from within the Quetta town. In the circumstances, the Customs authorities had hardly any opportunity of calling upon him to make a declaration in the prescribed form in respect of the foreign currency brought into Pakistan by him as provided in the notification. Reliance was also placed on another notification by which general permission is granted by the State Bank of Pakistan to travellers to Pakistan to bring with them without any limit foreign currency notes and coins. This notification too was not applicable to the case of appellant as rightly held by the learned Special Appellate Court, because the appellant was admittedly not a traveller."
13. There being no merit in the appeal it as such stands dismissed in', result whereof the judgment of the learned Special Judge Customs isr maintained.
14. The appellant appeared to be a young boy of hardly 17-18 years. It was stated at the are that his father died during the course of investigation of the case and has left behind dependent daughters and sons and the appellant has to support them. There is no evidence of his previous conviction on the record. In my view, it is a fit case for invoking provisions of section 5 of the Probation of Offenders Ordinance of 1960 which reads as under:-
5. Power of Court to make a probation order in certain cases (1) where a Court by which.
(a) any male person is convicted of an offence not being an offence under Chapter VI or Chapter VII of the Pakistan Penal Code Act (XLV of 1860), or under section 216-A, 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455 or 458 of that Code, or an offence punishable with death or transportation for life, or
(b) any female person is convicted of any offence other than an offence punishable with death, is of opinion, that having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the Court may for reasons to be recorded in writing, instead of sentencing the person at once make a probation order, that is to say an order requiring him or her to be under the supervision of a probation officer for such period not being less than one year or more than three years, as may be specified in the order : ' Provided that the Court shall not pass a probation order unless the offender enters into a bond with or without sureties, to commit no offence and to keep the peace and be of good behaviour during that period of the bond and to appear and receive sentence if called upon to do so during that period : ' Provided further that the Court shall not pass a probation order under this section unless it is satisfied that the offender or one of his sureties, if any has a fixed place of abode or a regular occupation within the local limits of its jurisdiction and is likely to continue in such place of abode or such occupation during the period of the bond.
(2) While making a probation order, the Court may also direct that the bond shall contain such conditions as in the opinion of the Court may be necessary for securing supervision of the offender by the Probation Officer and also such additional conditions with respect to residence, environment, abstention from intoxicants and any other matter which the Court may having regard to the particular circumstances of the case, consider necessary for preventing a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law-abiding citizen.
(3) When an offender is sentenced for the offence in respect of which a probation, order was made that probation order shall cease to effect."
In view of the above-said provisions of the Ordinance of 1960 the appellant shall remain on probation period for two years unless otherwise ordered by this Court or this order is rescinded or varied earlier. For the above-said purpose he shall have to furnish two sureties in the sum of Rs, 50,000 and 25,000, each so as not to repeat the offence or any other offence, keep peace and good behaviour during the period ',of bond and to receive sentence if called upon. He shall abide by the conditions laid down in the Ordinance of 1960 and rules of 1961 made thereunder. The appellant shall be placed under the charge of the probation Officer Quetta who shall submit his report after expiry of every three months on conduct and mode of life of the probationer. Till the surety bonds as required under the Probation Ordinance, 1960 and rules made thereunder, are furnished by the appellant, he shall remain on the same bail bond and shall furnish above-said surety bonds on or before this Court till 10-9-1985 to the satisfaction of Registrar of this Court. The Probation Officer Quetta may be called to attend this Court and to do the needful as required under the law and the rules.
15. If the appellant fails to furnish the above-said bonds he shall have to pass the sentence in Central Jail Mach. The appeal is disposed of accordingly.