SAAD SAOOD JAN, J.-1. The respondent, Muhammad Ashraf, was tried by the Special Judge, Customs, Lahore, for an offence under section 156(1)(8), Customs Act, on the allegation that he was caught in the act of smuggling a very large amount of Pakistani and foreign money out of Pakistan.
By his judgment dated 28-4-1984 the learned Special Judge acquitted him. The Federal Government has preferred this appeal to challenge the order of acquittal.
2. Before I proceed further it seems appropriate that I should take notice of a preliminary objection raised on behalf of the respondent to the effect that there is no proper appeal before me in as much as the gentleman who has preferred it was not competent to do so. It may be mentioned that this appeal has been presented by Mr. Muhammad Nawaz Abbasi, Advocate, on behalf of the Federal Government. The contention for the respondent is that Mr. Abbasi was not authorised to prefer this appeal as this could only be done by a law officer appointed under the Central Law Officers Ordinance, 1970, and that Mr. Abbasi was not such a law officer. To examine the objection raised by the respondent it will be of advantage to refer to certain provisions of the Customs Act.
Section 185 and section 185-B establish the Court of a Special Judge and confer upon him exclusive jurisdiction to try cases under the Act. Section 185-F provides for an appeal from an order or decision made by the Special Judge. Sub-section (1) of this section reads as follows:-- "Any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898, may, subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code".
Mr. Abbasi has placed on record a photo-stat copy of a letter received by him from the Central Board of Revenue, directing him to file an appeal in this case. The letter incorporate; the opinion as well as the decision of the Law Division of the Federal Government. The relevant part of the note of the Law Division reads as follows:-- "We agree with the view of the C.B.R, that the judgment of the Special Judge should be impugned before the. Appellate Tribunal ...................... Mr. Muhammad Nawaz Abbasi, Advocate, 9, The Mall, Rawalpindi is not on our Panel but he is a Special Prosecutor for customs cases and is nominated for filing the appeal."
It may be mentioned that under the Rules of Business of the Federal Government the Law Division looks after legal proceedings and litigation concerning the Federal Government. The Law Division was therefore competent to nominate Mr. Abbasi to file an appeal on behalf of the Federal Government. It is also to be noticed that unlike the Pakistan Criminal Law Amendment Act, 1958, Section 185-F does not specify the person through whom alone the Federal Government can exercise its right of appeal. Thus it can nominate any member of the Bar for this purpose. For this reason the two unreported cases cited by the learned counsel for the respondent are distinguishable. The unreported cases are State vs. Zar Badshah (Crl. A. No. 6S4 of 1982) and State vs. Munawar-ud-Din, etc. (Crl. A. No. 473 of 1978). In these cases appeals were filed on behalf of the Federal Government by a person other than a Public Prosecutor whereas under section 10(2) of the Pakistan Criminal Law Amendment Act, 1958, the right of the appeal could be exercised by the Government only through a Public Prosecutor. On this ground alone a learned Single Judge dismissed the appeals. However that may be, as section 185-F, ibid, does not create any such restriction the appeal against the respondent could be filed by any advocate appointed by the Federal Government for the purpose.
3. In support of his objection the learned counsel for the respondent drew my attention also to sub- section (2) of section 185-G which is in the following terms:- "A Law Officer appointed under the Central Law Officers Ordinance, 1970, shall be competent to conduct proceedings before the Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government."
He contended that by operation of this sub-section only a Law Officer mentioned therein could present an appeal on behalf of the Federal Government. I find it difficult to subscribe to this contention. In my opinion the sub-section merely enables a Law Officer appointed under the Central Law Officers Ordinance to conduct proceedings before the Special Appellate Court by virtue of his office but it does not create any exclusive right in this regard in their favour. As I read the sub-section (1) can find nothing in it which would preclude the Federal Government from appointing counsel other than a Law Officer for conducting proceedings on its behalf before the said Court.
4. For the reasons stated above I would repel the objection with regard to the competency of the appeal before me.
5. Prior to January, 1985, there was only one Special Appellate Court for the whole of the Province, It was presided over by a Single Judge sitting at the Principal Seat of this Court. By a notification dated 30-1-1985 the Federal Government constituted the Senior Judges at Rawalpindi, Multan and Bahawalpur, also as Special Appellate Courts in respect of areas falling in the respective jurisdiction of these Benches and correspondingly curtailed the jurisdiction of the Special Appellate Court at the Principal Seat, in the appeal before me the respondent was allegedly caught at the Islamabad airport and the base was registered against him at Police Station Civil Lines, Rawalpindi.
Ordinarily, therefore, this appeal should have been heard at the Rawalpindi Bench but then I am informed by learned counsel for the respondent that at his request venue of the trial was shifted to Lahore. It was in Lahore that the judgment was announced and the record of the case was maintained. I should therefore think that the Special Appellate Court at Lahore has the jurisdiction to hear the appeal. In support of the view which I take I would refer to Valia Ambu Poduval vs. Emperor (I.LR. 30 Mad. 136) which was followed by the Allahabad High Court in Short Lal vs. State (A.I.R. 1952 All. 193) and approved by the Punjab Chief Court in Hira Lal vs. Emperor (44 I.C. 326).
6. The material facts in this appeal are mostly admitted and the main question for consideration is whether or not the respondent was smuggling Pakistani and foreign money out of Pakistan. To examine this question it seems necessary to set out the facts in some detail. The respondent is an original resident of Chichawatni in Sahiwal District but for the last 21 years he has engaged himself in business in England. He has taken British nationality and also holds a British passport. He has been frequently visiting Pakistan. For the last time before the present incident he came to Pakistan on 11-12-1981. The present incident occurred on the evening of 17-12-1981 when he arrived at the Islamabad airport in order to catch a flight for Dubai.
7. It was alleged by the prosecution that the customs authorities had already received information that an attempt was being made to smuggle a large amount of Pakistani currency out of the country. To foil the attempt two raiding parties were formed. At about 8.30 p.m., the respondent arrived at the P.I.A, counter. He had a suit-case and a brief-case with him. After briefing by the P.I.A, staff at the counter his suit-case was tagged. He was then approached by Mr. Iftikhar Ahmad Iqbal, Deputy Superintendent, Customs, Currency Cell, who inquired from him if he had any objectionable articles in his possession. When he replied in the negative he was asked to open his suit-case. The suit-case was secured by a combination-cum-key lock. The respondent took out the keys from his pocket and after using the combination number he applied a key to the lock. The suit-case contained Pakistani currency notes of the value of Rs. 9,00,000/-, wrapped in khaki envelopes together with some clothes. On his personal search a further sum of Rs. 200/- in Pakistani currency notes and 505 Dhirhams of U.A.E, were found. The brief-case was got opened but it did not contain any contraband articles. Consequent upon the recovery of such a large amount of Pakistani and foreign money, a report was prepared by Mr. Iftikhar Ahmad Iqbal (PW-1). On the basis of this report a case under section 156 (1)(8) of the Customs Act was got registered against the respondent at Police Station Civil Lines on the same night at 12.45 a.m.
8. The respondent pleaded not guilty to the charge of smuggling at the trial. He did not dispute the recovery of the Pakistani and foreign money from his possession but had his own story to narrate.
He stated that he and his brother were planning to install a cold storage and an ice factory at Chichawatni. For this purpose they collected Rs. 9,00,000/- partly by raising loans from a Bank and some relatives and partly by selling articles which he had from time to time brought to Pakistan.
The construction work had already begun. On 16-12-1981 he came to Lahore with his cousin, Mehmood Ahmad (DW-4) with the money with the object of going to Karachi for buying machinery for the cold storage and ice factory. After making the purchase he was to proceed to London whereas his cousin was to return back. He had a case pending in Dubai. He had given the telephone number of his relative, Muhammad Jamil (DW-1) who lived in Lahore, to his lawyer at Dubai for contacting him whenever the case came up for hearing. Thus, when he arrived at Lahore on 16-12-1981 Muhammad Jamil (DW-1) told him that he had received a message from his lawyer at Dubai that the case had been fixed for hearing on 20-12-1981. On receipt of this information he changed his programme and decided to immediately proceed to Dubai. There was no flight available from Lahore or Karachi for Dubai during the next two days, but one was due to take off from Islamabad on the following day. Accordingly, on 17-12-1982 he and his cousin went to Islamabad by 6.00 p.m. Flight and reached there at 7.00 p.m. His reservation for Dubai was not a confirmed one but he had managed to get a ticket on chance. As to what happened at the airport he stated:- "................ As I was upset and in hurry I took suit-case Exh. P-2 inside the departure hall with me. I was told to wait by the P.I.A, staff at the checking counter as my ticket was on chance. 1 put my suit- case and brief-case near the counter of the P.I.A, and left my ticket with the P.I.A, staff. In my presence people were being checked in. I later on was intimated at a late stage by the P.I.A, staff that a seat on chance to me is available, so I went out to tell my cousin Mehmood Ahmad that I am leaving for Dubai where Mehmood Ahmad told me that I had taken wrong suit-case inside as he had checked suit-case available with me, both the suit-cases being of the same colour and make.
I rushed inside the departure lounge and requested the P.I.A, counter staff to hand me over my suit-case as I intended to change the same having brought in by mistake. One Muhammad Yousaf from Narcotics Board asked me that first I should show him after opening the suit-case Exh. P-2 whether 1 was not carrying any narcotics and only then he will allow me to take the suit-case from Hall for its exchange. I had explained to him that the keys of the suit-case were with his cousin Mehmood who is outside. The said Muhammad Yousaf after searching me taking the suit-case Exh.
P-2, keys with me, my passport and other documents including the P.I.A, ticket, etc. From the P.I.A, staff he allowed me after thorough search to go out from the (-fell along with a constable. I went out and brought the keys from my cousin Mehmood upon which Muhammd Yousaf P.W. Opened the suit-case, saw the currency for which I had explained him that I was carrying it for Karachi for bona fide purpose of purchase of machinery, etc. Muhammad Yousaf P.W. Went and called upon the Customs officials where Daud Awan, Customs Inspector turned who after listening my explanation and looking the currency went and brought few other officials who took me to a room of A.C. Customs situated in another building there after due deliberation and consultation they involved me in this false case. Islamabad airport was not a duly notified airport."
With regard to the possession of U.A.E, dirhams he stated:-- "the aforesaid U.A.E. Dirhams were mine .........................I am a British National and I arrived in Pakistan on 21-11-1981. I, twenty six days prior to the occurrence as per law, can keep the foreign currency i.e. This kind of small amount as the total value of 500 U.A.E. Dirhams come to about Rs. 1,800/- I was legally entitled to keep the same."
To substantiate his version he examined five witnesses.
9. In support of its case at the trial the prosecution examined Kh. Iftikhar Ahmad Iqbal (PW-1), Mian Noor-ul-Ghani (PW-2), Ch. Nisar Ahmad (PW-3), Muhammad Yousaf (W-4), Raja Abbas Ali (PW-5), Ashiq Hussain Bokhari (PW-6), Muhammad Akhtar (PW-8) and Daud Awan (PW-9). Of these, Ch. Nisar Ahmad (PW-3) and Muhammad Yousaf (PW-4) were declared hostile. Inspector Abdul Razzaq, Ata Muhammad Akhtar and Sepoy Ishaq, were also-mentioned in the F.I.R, to have been present on the occasion but they were not examined. The case was investigated by Inspector Taqi Mirza (PW-10) and the F.I.R, was recorded by A.S.I. Muhammad Shah (PW-7).
10. As already indicated the factum of recovery of a very large sum of Pakistani currency from a suit-case which the respondent had brought in at the P.I.A, counter just prior to catching the flight for Dubai is not disputed by the parties and the only question for consideration is whether the respondent was attempting to smuggle the said Currency notes out of Pakistan or was it a case of innocent switching over of suit-cases resulting from respondent's anxiety to reach Dubai as early as possible to prosecute his law suit there. The star witness on behalf of the prosecution was Kh.
Iftikhar Ahmad Iqbal (PW-1) who was at the relevant time posted as Deputy Superintendent Customs (Currency Cell) at the Islamabad airport. He stated:- "At about 8.30 p.m. Muhammad Ashraf accused now present in the Court came alongwith his brief case Ex. P-1 and suit case Ex. P-2 and produced the same for briefing. After briefing his luggage was stagged which bears No. P.I.A. 72-82-61 which is Exh. P.A. After the completion of the briefing formalities I asked Muhammad Ashraf accused as to whether he had any objectionable articles in the brief-case or in the suit-case at which he replied in the negative. Then he was asked to open his suit-case and brief-case. His suit-case Exh. P-2 was opened by combination No. 000 and with help of the keys which were handed over by the accused. The keys were produced by the accused from his pocket. From the suit-case Pakistani currency of the value of Rs. 9,00,000/- wrapped in khaki envelopes and pasted with the bottom or to.........."
It appears from his statement:--
(i) that just before the recovery of the money the respondent produced the suit-case in question at the P.I.A, counter as part of his luggage;
(ii) the P.I.A, accepted the suit-case for putting it on the air-craft and for that purpose placed a tag on it;
(iii) the suit-case was secured with a combination-cum-key lock;
(iv) the respondent knew the combination number of the lock; and
(v) the respondent carried the keys of the lock on his person.
The version of this witness was supported in its entirety by Raja Abbas Ali (P.W. 5), Superintendent of Customs and Ashiq Hussain Bokhari (P.W. 6) a Custom Inspector. Mr. Muhammad Akhtar (P.W. 8) who was an Assistant Collector also made a similar statement although in his cross-examination he was unable to recall if the respondent had gone out of the departure lounge to bring the keys of the suit-case in question. Although Mian Noor-ul-Ghani (P.W. 2), a Security Supervisor in the P.I.A., did not appear to remember the details of the incident his deposition was off the same line as the case of the prosecution. Both he and Daud Awan (P.W. 9), Deputy Superintendent of Customs stated that the respondents suit-case was opened by Muhammad Yousaf (P.W. 4), although the keys were provided by the respondent.
11. As already mentioned two of the witnesses produced by the prosecution were declared hostile.
They were Ch. Nisar Ahmad (P.W. 3) and Muhammad Yousaf (P.W. 4). One of them, namely, Ch. Nisar Ahmad (P.W. 3), was Assistant Security Officer in the Islamabad Airport Security Force and the other, namely, Muhammad Yousaf (P.W. 4) was a field investigating officer in the Pakistan Narcotics Board. They gave their own version of the incident. They stated that the respondent was held up by one of them, namely, Muhammad Yousaf (P.W. 4) and was asked to open the attache/suit case.
According to Ch. Nisar Ahmad (P.W. 3) the respondent at first denied that the suit-case belonged to him. However on the insistence of Muhammad Yousaf (P.W. 4) the respondent produced a key from his possession but it did not fit in the lock. The respondent, then, according to Muhammad Yousaf (P.W. 4), stated that the suit case had been changed with that of his cousin who was standing outside the hall. Both witnesses, deposed that the respondent then went outside the hall to bring the proper key. The lock was opened with the second key. They also stated that at the time of the recovery of the currency notes no employee of the customs department was present.-
12. As noticed earlier the respondent examined five witnesses in his defence. Of these the testimony of Niaz Hussain (DW-5) was only to the effect that, the respondent held an open ticket on the Syrian Arab airlines on Karachi-Damascus-London route. Muhammad Aslam (DW-3) is the brother of the respondent. He is a halvai at Chichawatni. He deposed that he and the respondent had planned to set up a cold storage and an ice factory and for this purpose they had, after obtaining loans from different sources, started the construction work. They had earmarked Rs. 9,00,000/- for the purpose of buying machinery, etc. Abdul Shakoor (DW-2) is the brother-in-law of the respondent. He stated that he had advanced a loan of Rs. 2,00,000/- to the respondent for the installation of a cold storage at Chichawatni.
13. Muhammad Jamil (DW-1) is also a relative of the respondent. He stated that on 16-12-1981 at about 2.00 p.m., he received a message from the respondent's lawyer at Dubai that the respondent's case was to come up for hearing on 20-12-1981 and that the latter's presence was required on the occasion. On the same day at 4.00 p.m., the respondent came to his house and he passed on the message of his lawyer to him. There was no flight available from Lahore for Dubai on 17-12-1981. The respondent decided to go to Rawalpindi for catching a plane for Dubai. On 17-12-1981 he drove the respondent and his cousin Mehmood Ahmad (DW-4) to the Lahore Airport.
14. Mehmood Ahmad (DW-4) is the main defence witness. He is a cousin of the respondent. He stated that the respondent was constructing a cold storage and an ice factory at Chichawatni and had to purchase machinery for the same. On 16-12-1981 he alongwith the respondent came to Lahore for the purpose of making inquiries about the machinery. The respondent was also to go to Karachi for the same purpose. The respondent brought Rs. 9,00,000/- with him for buying the machinery. At Lahore Muhammad Jamil (DW-1) informed the respondent that he was required at Dubai in a civil case. The respondent then purchased a ticket from the P.I.A. He and the respondent stayed for the night in the house of Muhammad Jamil (DW-1) as the respondent fell ill. On the following da\ -hey went to Islamabad by air. As. To what happened at the Islamabad airport he stated:- "Ashraf asked me to stand outside, he left one, attache-case with me and the other he took inside to take a chance on Dubai flight. I tried to open the attache-case which was with me as I felt cold.
The attache-case could not be opened as the same had been changed, and Ashraf accused in hurry by mistake had taken the other attache-case inside the departure lounge. I tried to convey it in the departure lounge to Ashraf but I was forbidden by gate constable. After a short while Ashraf told, me from a distance' that he has got seat for Dubai. I told him that suit-case had been changed at which Ashraf rushed back and after some time he came with a constable and asked me to deliver him the keys of the suit-case which I accordingly did. I kept standing outside but after a considerable time I came to know that Ashraf had been involved in a false currency case. I was not allowed to go inside by the guard man. Then I went to the arrival side from another door where I met the Customs Officials and told them that Ashraf is innocent."
It may be mentioned that this witness is a resident of Faisalabad where he runs a shop. He did not care to state the circumstances in which he had gone to Chichawatni on 16-12-1981.
15. While recording the order of acquittal the learned Special Judge rightly observed that where there was possibility of the defence version being true the accused was entitled to the benefit of doubt. In coming to the conclusion that this was the case here he expressed the view that the defence version found support from the evidence led by the prosecution itself. In this regard he also took notice of the conduct of the respondent in not avoiding the flight when he saw that the passengers were being searched. He found that the prosecution had failed to produce important witnesses to substantiate its version, in this context he particularly referred to the omission of the prosecution to examine Mr. Atta Muhammad Akhtar and Sepoy Muhammad Ishaq. Mr. Akhtar was not only the airport manager but also exercised magisterial powers. According to the F.I.R. Mr. Akhtar was also present at the time of the recovery of money from the respondent's possession.
Sepoy Muhammad Ishaq had according to one version (not preferred by the prosecution) accompanied the respondent when the latter went out to bring the key from his cousin. The learned Judge castigated the prosecution for producing only a copy and not the original F.I.R. He drew an inference adverse to the prosecution on the latter's inability to produce the original key of the suit-case which was taken into possession at the time of the incident. As regards the quality of evidence led by the prosecution the learned Judge observed that its witnesses could be divided into two categories, namely, employees of the customs department and employees serving in other department. The testimony of employees of the customs department was suspected inasmuch as they stood to gain monetarily by way of awards in the event the prosecution succeeded in securing the respondent's conviction. He observed that there were contradictions and improvements in the statements of PW 1, PW 5, PW 6 and PW 9.
16. An appeal from an order of acquittal lies both in respect of finding of facts and law. In our Courts an accused is presumed to be innocent unless he is proved to be guilty. The presumption of innocence gets further strengthened when the trial Court after a fair appreciation of the evidence led before it finds him not guilty. An Appellate Court would not interfere with the decision of the trial Court merely because on the same evidence another view unfavourable to the accused can be formed, for, apart from other considerations, the trial Court has the advantage of seeing the witnesses when they appear to give evidence. But, then, as observed by the Supreme Court, if the reasons given by the trial Court in support of its finding are speculative or of artificial nature or the findings recorded by it are based on no evidence or misinterpretation of evidence or the conclusions drawn by it about the guilt or innocence of the accused persons are perverse or foolish resulting in miscarriage of justice the Court of Appeal will in such a case re-examine the evidence and draw its own conclusions from it. (See Ghulam Muhammad vs. Muhammad Sharif, (PLD 1969 SC 398). In Sheo Swarup and others vs. King Emperor (A.I.R. 1934 P.C. 227) the Judicial Committee of the Privy Council observed:- "Sections 417/418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal would be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judges as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."
This view of the Judicial Committee was cited with approval in a number of judgments by the Supreme Court, in this context I may only refer to the case of Billu vs. The State (P.L.D. 1979 S.C. 956).
17. In the light of the principles mentioned in the preceding paragraph I have re-examined the evidence and find that the learned Special Judge has ignored many material circumstances having a bearing on the charge against the respondent and has instead based his findings entirely on peripheral considerations. As already mentioned, it is not disputed that at the time of leaving Pakistan for Dubai the respondent had presented a suitcase at the P.I.A, counter as part of his luggage. It was duly tagged. Soon thereafter, a very large amount of Pakistani currency was recovered from the suit case. That being so, the question that the suit-case was opened by officers of the customs department or an official of the Narcotics Board (Muhammad Yousaf, PW-4),is of little significance. For the same reason the non-production of Mr. Atta Muhammad Akhtar, Airport Manager, or of the original key with which the suit-case was opened can have no bearing on the guilt or otherwise of the respondent. It is true that the prosecution did not place the original F.I.R, on the record but, considering that the person on whose report the F.I.R, was recorded and the police officer who recorded the F.I.R, were both produced by prosecution, I do not see how the said lapse prejudiced the defence of the respondent in any manner. The fact that the employees of the customs department had a monetary interest in the conviction of the respondent, too, does not detract in any manner from the fact that a very large amount of Pakistani currency was recovered from the possession of the respondent at the time of his departure from Pakistan.
18. As stated earlier the main question for consideration in this appeal is whether it was an innocent case of switching over of suit-cases or it was an attempt to smuggle Pakistani currency out of the country. The answer to this question depends upon the intention of the respondent at the relevant time. The clue in this regard is furnished by his conduct prior to and at the time of the recovery of the money from the suit-case. The version of the respondent is that soon after getting a seat in the plane he went out to inform his cousin that he was leaving for Dubai. His cousin told him that he had taken the wrong suit-case. Immediately thereafter he returned to the departure lounge and asked the P.I.A, staff to hand over the suit-case back to him as he wanted to change the same. On this, Muhammad Yousaf (PW-4) who was present there insisted that the suit-case be opened. He told Muhammad Yousaf (PW-4) that the keys of the suit-case were with his cousin. He was permitted to go out in the company of a constable and fetch the keys from his cousin. With these keys the suit-case was opened and the Pakistani currency notes recovered. In support of this version, he relied upon his own statement and the testimony of Mehmood Ahmad (DW-4), Ch. Nisar Ahmad (PW-3) and Muhammad Yousaf (PW-4). As mentioned earlier, Ch. Nisar Ahmad (PW- 3) and Muhammad Yousaf (PW-4) were declared hostile by the prosecution. Ch. Nisar Ahmad (PW-3) stated that he was on patrol duty in the departure lounge. At the checking counter he heard the respondent saying to Muhammad Yousaf (PW-4) that the suit-case did not belong to him. Qn the other hand, Muhammad Yousaf (PW-4) insisted that the respondent should open the suit-case. The key which the respondent had did not fit in the lock. The respondent was allowed to go out and fetch another key. With the help of the key brought from outside suit-case was opened.
The suit-case contained the Pakistani currency notes and some clothes. After the recovery of the money the customs officers arrived and took charge of the case. Muhammad Yousaf (PW-4) deposed that after briefing the suit-case of the respondent it was tagged and placed on the conveyor belt. The suit-case was then brought to the counter and the respondent was asked to open it. The respondent applied the key in his possession but it did not fit in the lock. On this he stated that the suit-case belonged to him but it had been changed with another suit-case. The respondent was permitted to go out of the lounge with a constable to bring the key of the suit- case from his cousin. The lock of the suit-case was then opened with the key brought from outside.
19. Even though learned counsel for the respondent relied upon the version of Ch. Nisar Ahmad (PW-3) and Muhammad Yousaf (PW-4) neither of them has fully supported his story. Thus, according to the respondent and his cousin the respondent had himself approached the P.I.A, staff with the information that the suit-case had been exchanged with another one. On the other hand, the story of Muhammad Yousaf (PW-4) is that the suit-case had been, after having been tagged, placed on the conveyor belt. It was only when he had been asked to open it that the respondent took the position that it had been changed with one lying outside the departure lounge with his cousin. According to Ch. Nisar Ahmad (PW-3) he reached the counter after the suit-case had been picked up for search.
20. Mehmood Ahmad (DW-4) has made an improvement in his deposition which, though slight, is meaningful. The story of the respondent was that after getting a seat in the plane he went out to inform his cousin about his departure; it was then that his cousin told him that he had taken the wrong suit-case with him. On receiving this information he rushed inside and requested the P.I.A, staff to return the suit-case as he intended to change the same. If that were indeed so then the respondent should have brought the other suit-case with him when he returned to the P.I.A, counter for the exchange. It was no body's case that he had d<^ne so. In order to get over this possible weakness in the defence version Mehmood Ahmad (DW-4) came up with the assertion that he had told the respondent only from a distance that he had taken the wrong suit-case inside the hall.
21. However that may be, even, if it be assumed that the defence version was more acceptable with regard to what actually happened at the Islamabad Airport two inferences, one favourable and the other unfavourable to the respondent, can be drawn. The favourable inference is that the respondent was in a hurry to get to Dubai and that in his anxiety not to miss the plane he took the wrong suit-case inside the departure lounge. The error resulted partly from the fact that he had brought two suit-cases of the s me make and colour to the airport. The second inference which is unfavourable to the respondent is that he wanted to smuggle Pakistani currency outside the country and with this object he had hatched a plan with his cousin. In accordance with this plan he brought two suit-cases of the same make and colour to the airport. He purposely left one of the suit-cases outside the airport with his cousin and took the one containing the Pakistani currency notes inside to the P.I.A, counter with the wrong set of keys in order to provide him with a ready explanation of innocent switch over in the event his attempt at smuggling was detected. If the second inference is correct then his conduct, noticed by the trial Court, in not attempting to escape when the luggage of other passengers were being checked becomes easily understandable.
22. It is the cardinal principle of administration of criminal justice in our country that if on the same set of facts two explanations are possible the one which is favourable to the accused is accepted and he is given the benefit of doubt. In this case there are number of circumstances which persuade me to hold the second inference, that is, the one unfavourable to the respondent, to be true. But before I set out these circumstances I may take notice of the provisions of sub-section (2) of section 156 of the Customs Act which are in the following terms:-- "Where any goods specified in clause(s) of section 2 or in a notification issued thereunder 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."
Currency is an item specifically mentioned in clause(s) of section 2 of the Act. Taking a very large amount of Pakistani currency to the departure lounge and offering a suit-case containing it as part of his luggage to the P.I.A, staff when he was due to board a plane for Dubai did give rise to a reasonable belief that the respondent wanted to smuggle the said currency out of the country.
Consequently, by operation of the provisions of the above-cited sub-section the burden of proving that he had no intention of smuggling the Pakistani currency abroad fell on him. However, I may mention that in a criminal case the burden which falls upon an accused to prove facts indicating his innocence is always a light one and in doing so he can even take advantage of circumstances appearing from the evidence led by the prosecution.
23. The respondent's case is that he had left Chichawatni to buy machinery for his cold storage and ice factory. Considering the risk involved, carrying of a very large amount in cash was somewhat unusual on his part for on his own showing he was a businessman conducting his business in Manchester for about 21 years. He must have been therefore aware of the facilities which the banks provide to the trading community in this regard. In Chichawatni the National Bank of Pakistan from which he and his brother had obtained a very large loan was located in his brother's house. He could have therefore found no difficulty in obtaining a bank draft which was much easier to carry and a safer way of transferring money from one place to another. Further, it was strange on his part to take such large amount all the way from Lahore to the Islamabad Airport where he was hoping to catch a plane for Dubai. According to his own version he had received information on 16-12-1981 at 4.00 p.m., about the fixation of his case at Dubai. He did not leave Lahore till the evening of the following day. Chichawatni is not too far off from Lahore.
Besides, he had his cousin Mehmood Ahmad (DW-4) with him. That he had full faith and confidence in his cousin is indicated by his stance at the trial that he was prepared to hand over the money to him in the event he was successful in getting a seat for Dubai. It is surprising that while making preparation for leaving for Dubai he did not make any effort to deposit the money at Lahore in a safe place or at Chichawatni during the intervening period, that is, between afternoon of 16-12-1981 and the evening of 17-12-1981 when he left Lahore for Islamabad. It may be mentioned that 17-12-1981 being a Thursday was a working day. The explanation of the respondent that he took the money to Islamabad as he did not have a confirmed seat for Dubai is not impressive.
According to Mehmood Ahmad (DW-4) the respondent was to make inquiries about the machinery for the plant at Lahore also. He himself stated that from Karachi he was to go to London.
Thus, in the event he was unable to go to Dubai he had to come back to Lahore.
24. Buying machinery for a cold storage or an ice factory is not like shopping for a pair of shoes or a car. It requires detailed planning. According to the respondent the construction work for the project has already started. The respondent had come out of Chichawatni to purchase machinery for the proposed plant. Ordinarily he should have been in possession of the plans of the construction. It is surprising that from his suit-case and the brief-case no such plans were recovered. The defence did not allege at the trial that these plans had been left back at Lahore. On the other hand the contents of his suit-case and brief-case consisted of his wearing apparels and personal kit which one would normally carry while going on a journey.
25. In this judgment the learned trial Court did not notice any of the circumstances mentioned- above but instead proceeded to base his order on considerations which became insubstantial after the matter of recovery of the Pakistani currency from the possession of the respondent remained no longer controversial. I am therefore unable to support his judgment. On the contrary I am satisfied that it was a case of smuggling Pakistani currency notes out of Pakistan. Accordingly, I set-aside the order of acquittal and instead hold that the allegation of smuggling has been established beyond any reasonable doubt against the respondent. Therefore, I convict him of an offence under section 156(1) (8) of the Customs Act. For this offence I sentence him to suffer rigorous imprisonment for a period of six years and pay a fine of Rs. 1,00,000/-. In default of payment of fine he shall suffer further rigorous imprisonment for a period of two years. As required by the said section he shall also suffer five strips. The Pakistani currency notes recovered from the suit-case and his person shall be forfeited to the Federal Government. I make no order with regard to the U.A.E. Dhirhams As in its appeal the Federal Government has not referred to them at all.