1. This is a petition under section 561-A, Cr.P.C. For quashment of the case under section 156(i)(89), Custom Act, 1969 (hereinafter referred to as the Act) pending against the petitioner Juma in the Court of Special Judge, Customs. Karachi. After hearing the arguments addressed at the bar, the petition was dismissed by short order, dated 23-1-1986 for reasons to be recorded separately.
2. Following are the reasons in support of the short order.
3. The facts giving rise to this case are that on 1-10-1980 the petitioner came from Panjgoor Baluchistan by P.I.A. Flight No. 518. On his arrival at the Karachi Airport, Ch. Muhammad Refique S.P.O. Who had spy information that the petitioner would be bringing the smuggled foreign watches, intercepted the hand-bag carried by him and in presence of Mashirs Malik Sharfuddin and Muhammad Siddique recovered 299 wrist watches wrapped in six Card Board boxes from the said hand-bag. The said S.P.O. Prepared the usual recovery memo. And put the petitioner under arrest. He was then served with requisite notice under section 171 of the Act. After completion of the investigation the petitioner was placed on trial in the Court of Special Judge (Customs and Taxation), Karachi.
4. It was argued by the learned counsel for the petitioner that the I wrist watches recovered from the petitioner's possession were not contraband and he had purchased the same from open market at Panjgoor and as such he was not liable for any offence. Therefore, he submitted that pendency of the criminal case in respect of the said watches against the petitioner is a clear abuse of process of law and there this Court will be more than justified in quashing the said case in exercise of jurisdiction vested in it under section 561-A, Cr.P.C.
5. It is not denied that the watches in question were recovered from the petitioner's possession at the airport after his arrival from Panjgoor. It is also not contested on the petitioner's behalf that the watches found in his possession were brought by him from Panjgoor. However, the burden is on him to prove that neither he smuggled the said watches nor are they smuggled goods. In this connection reference may be made to section 187 of the Act, which clearly shows that when any person is alleged to have committed an offence under the Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document shall lie on him. Obviously the scope of section 187 is very were and it applies not only to actual smugglers from whose possession the goods are seized but also to those who came into possession of the goods after they had passed through many hands or agencies. My attention was also drawn to section 156(89) of the Act which provides that if any person without lawful excuse, the proof of which shall be on such person, acquires possession of or is in any way concerned in, inter alia, keeping or concealing or in any manner dealing with smuggled goods or any goods in respect of which there may be reasonable suspicion that they are smuggled goods, such person shall be liable to penalty not exceeding ten times the value of the goods, and upon conviction, to imprisonment for a term not exceeding six years and fine not exceeding ten times the value of such goods and also to whipping besides the confiscation of the goods. Thus it is for the petitioner to prove that the watches found in his possession were neither smuggled by him nor were smuggled goods. He can do this only by leading evidence in trial Court. It is said that some evidence has already been recorded on behalf of the prosecution and some still remains to be produced. After the prosecution side is closed the petitioner will be given opportunity to produce his evidence. May be the watches found in possession of the petitioner are not a banned item. That does not automatically prove that they are not smuggled. The contention of the learned counsel for the petitioner was that they were readily available in open market at Panjgoor and that the petitioner had purchased them from the said open market of Panjgoor. In proof of such contention, the petitioner is expected to examine the shopkeeper from whom he has purchased the watches and also produce cash memo. Under which the said watches were sold to him. But the order passed by the Special Judge, Custom under section 265-K, Cr.P.C. Shows that the learned counsel for the petitioner had frankly conceded before the said Judge that the petitioner was unable to produce any cash memo. Or the receipt under which the said watches were purchased by him. The explanation given in this connection was that the traders at Panjgoor do not pass any receipt for sale of such goods. This fact is sufficient to create doubt about such goods being smuggled. In any case this point too can be decided in the light of evidence produced in the trial Court.
6. For above reasons I am convinced that the trial Court alone is competent to decide if the watches involved in the case pending before it are smuggled goods or not. Invoking of section 561-A, Cr.P.C.
7. For such decision is not called for, as the jurisdiction conferred by that section is an extraordinary jurisdiction which can be invoked only in exceptional cases when no other remedy is available to the parties. In the instant case the Special Judge, Custom who has jurisdiction to decide the case under consideration is already seized of the case so much so that some evidence has already been recorded by him. Consequently the trial Court should be allowed to decide the case in normal course after taking into consideration the evidence adduced before it by the parties. There is absolutely no justification for this Court to intervene and exercise the extraordinary jurisdiction and thereby usurp the jurisdiction which ordinarily vests in the Special Judge, Custom.
8. The learned counsel for the applicant has, in support of his arguments, placed reliance on two authorities namely, Pakistan v. Ziauddin PLD 1962 SC 440 and Anees Ahmed v. Government of Pakistan and 3 others PLD 1979 Kar. 709.
9. I have carefully considered these authorities which are distinguishable from the present case on facts and as such they render no assistance to the petitioner's case. The petition was therefore,