This appeal under section 185-F (1) of the Custom Act 1969 (hereinafter to be referred as Act) is directed against the judgment, dated 7th April, 1982 of the learned Special Judge (Customs and Taxation) Karachi, whereby he convicted the appellant under section 1569(01) (8) of the Act and sentenced him to R.I. For one year and fine of Rs.15,000 (fifteen thousand) in default to undergo R.I.
For six months more.
2. Briefly stated the case of prosecution is that on 24-9-1980; complainant Habibur Rehman's, Senior Preventive Officer, Customs House, Karachi, was on duty at the out going passengers'
International Departure Lounge, Karachi, Airport. He suspected passenger Younus Khan who was bound to proceed, Honkong by LH. Flight No. 640. Appellant after completing all formalities of departure entered in the International Departure Hall and at the time of announcement of boarding of passengers he was intercepted and was found in possession of U.S. Dollars 19,574,00 which he kept in the shoes which he was wearing. On enquiry he stated that U.S. Dollars were purchased from local market. Mashirnama was prepared in presence of Muhammad Ismail Traffic Supervisor and Khan Khel Chief Security Officers K.L.M., Karachi Airport. A case under section 2(a) punishable under section. 156(1)(8) of the Ordinance was registered as CDC No. 89/80.
3. Prosecution in support of its case examined P. W. Habibur Rehman's, P.W. 2 Khan Khel Exh. 4, P.W. 3 Syed Muhammad Hashim Exh.
7. The appellant pleaded not guilty to the charge and denied the allegations. He stated that he alongwith his two friends Shahid Latif and Abdul Qadeer was waiting at the counter of Lufhtansa Counter at Karachi, Airport when Habibr Rehman's Customs Officer came and asked them if they have anything to declare to which appellant and Shahid Latif replied in negative. One Abdul Qadeer disclosed that he was having U.S.$ 20,000 which he brought from Afghanistan. He stated that complainant Habibur Rehman's arrested him for the case was concocted. Appellant examined Shahid Latif as Exh. 11 and Abdul Qadeer Exh. 12, in his defence.
Complainant Habibur Rehman's supported the prosecution case as disclosed in the F.I.R. And produced F.I.R. And stated that he secured 19, 574.000 U.S. Dollers from the shoes of the appellant and such Mashirnama Exh. 3-D was prepared in presence of Mashirs Muhammad Ismail and Khan Khel. He also stated that Mashirnama was prepared by Mr. Hashimi on his dictation. He served notice Exh. 3-A under section 171 of the Act on the appellant and appellant Produced passport, Identity card, Air Ticket and Boarding card which were secured from the trial and are at Exhs. 3-B/1 to 3-B/4. He lodged report which he produced as 3-C. In his cross-examination he stated that shoes of appellant were not secured. He denied the suggestion that currency was secured from the possession of one Afghan national Abdul Qadeer who was leave Karachi by the same flight. Mashir Khel Khan Ehan has stated that on the night of the incident Custom Officer did not search the person of any passenger in this presence. He has produced Mashirnama Exh. 4-A admitted his signature. He was declared hostile. In his cross-Examination he has stated that he had seen the appellant in the Customs Office at Departure Hall and 4 or 5 person's were also present and saw Mr. Hashimi in the Custom Office. He stated that he saw U.S. Dollars lying on the table and on the asking M. Habibur Rehman's he had counted the dollers. He stated that the contents of the Mashirnama Exh. 4-A are not correct and appellant was not searched in his presence. P.W. 3 Syed Muhammad Hashim Exh. 5 stated that on 24-9-1980 he was on duty at Karachi Airport from 8 p.m.
To 8 a.m. Lufthana flight No. LH. 640 was to leave at about 10-45 p.m. For Hongkong. The appellant's movement was suspected and Habibur Rehman's intercepted appellant and asked him whether he was in possession of any contraband article or any currency to which he replied in negative thereafter Habibur Rehman's searched his body and recovered 19,574 U.S. Dollars which appellant was concealing in his shoes worn by him and such Mashirnama was prepared. He has stated that on the dictation of Habibur Rehman's he prepared Mashirnama Exh. 4-A and also signed it. He has stated that Mashirnama is in his handwriting and also bears his signature. The inventory Exh. D-3 was also prepared by him. P.W. 4 Muhammad Ismail, second Mashir stated that on 24-9-1980 he came to perform his duty at Karachi Airport at 9 a.m. When he reached custom checking counter there was a great rush and Customs Officer Habibur Rehman's was sitting in that room where appellant was also present. He stated currency was lying on the table and another Mashir Khan Khel was also sitting there. He admitted to have signed the Mashirnama Exh. 4-A but stated that his signature was taken on blank paper. He was declared hostile. In cross--examination he denied the contents of Mashirnama and stated that currency was not secured from appellant in his presence.
P.W. 5 Saghirullah is Investigating Officer. He recorded statement of Khan Khel, Muhammad Ismail and Habibur Rehman's and Preventive Officer Hashmi. He challaned the case on 5-10-1980.
Defence witness Shahid Latif Exh. 11 stated in his evidence that he, appellant and Qadeer Khan Adghani came by the same flight from Peshawar and stayed in Gulf Hotel of Karachi and their seats of Hongkong were confirmed by the flight of Lufthansa Air Line on the night of 21-9-1980. He produced photostat copy of the air line ticket Exh. 11-A. They proceeded to Airport but due to non availability of Visa Abdul Qadeer Khan was not allowed to go by that flight, therefore, they all returned back and on 24-9-1980 they again went to the counter of Lufthansa Air Line at the Airport and handed over tickets at Lufthansa Air Line-counter where Abdul Qadeer informed the incharge of the counter that he intends to go to India because he was not allowed as to go Hongkong. He deposed that Inspector Habibur Rehman's came there and made enquiry if they have excess money or other contraband articles to which were replied negative. He stated that all of them had only one hand bag which was searched by Habibur Rehman's and recovered 19, 575 U.S. Dollars. He stated that Qadeer Khan informed 1975 the Custom Officer that money belongs to him and there is such entry in his passport. They were taken to the Custom Cabin. The ticket of Qadeer Khan, was not O.K., therefore, Inspector consulted with other Custom Officer thereafter Customs Officers allowed him and Younus Khan to complete formalities of immigration. They completed such formalities. Inspector Habibur Rehman's again took applicant in Cabin and asked to go to aircraft.
Thereafter, he did not know as to what happened to Younas and Qadeer Khan. He in his cross- examination stated that Qadeer Khan was not known to him. D.W. Abdul Qadeer Exh. 12 stated that on 11-9-1980 he came from Peshawar and was going to Hongkong. He came to Karachi on 11-9- 1980 and he was booked for Hongkong but he could not proceed as he did not possess double Visa. He got his ticket extended to 23rd or 24 September, 1980. He alongwith appellant and other person reached at Karachi Airport and contacted to Lufthansa Air Line counter. They all had a common suit-case which was with appellant in which he kept 19,575 U.S. Donors. In the meanwhile some Customs Officers came and asked him to show currency to which he disclosed that 19,575.
U.S. Dollars are in the suit case which was with the appellant. He insisted that money which were in the suit case belongs to him and his statement was not believed and was allowed to go. He stated that he tried to get back money but subsequently came to know that appellant was arrested. He produced passport coupon of the ticket Exhs. 12-A and 12-B and a declaration form as Exh. 12-C.
5. I have heard Mr. Sohail Muzzaffar appearing for the appellant. He contended that both the Mashirs have not supported the case of prosecution and declaration was not sought from the appellant and no opportunity was afforded to appellant to declare the currency, therefore, there is clear violation of mandatory provision of Customs Act. He relied on a case reported in 1984 P Cr. L J 1133. It is also contended that there is also violation of section 159 of the Customs Act. He relied on a case reported in PLD 1971 SC 124. It is also argued that there is non-compliance of section 171 of the Act and he referred to a case reported in 1980 P Cr. L J 349, PLD 1978 Kar. 774, 1983 CLC 786 and 1980 SCMR 114.
6. Mrs. Salima Nasiruddin appearing for the State has supported the cafe and stated that appellant was rightly convicted and in his possession huge quantity of foreign currency was recovered.
7. The presence of the appellant in the Departure Hall of International Airport is not denied. The Defence wherein Qadeer Khan had himself admitted in his evidence that currency was secured from the suit-case which appellant was having at the time of departure but he states that currency belonged to him. This witness has been contracted by D.W. Shahid Latif and has stated that Qadeer Khan intended to got to India. In these circumstances there was no reason for all these 3 persons to carry one hand bag and each of them to wait and proceed together. The complainant Habibur Rehman's who was on duty of International Department Hall had fully supported the case of prosecution. Two Mashirs though declared hostile and stated that they found appellant in the Departure Hall of Airport. Syed Muhammad Hashim, Preventive Officer who prepared the Mashirnama and also signed have fully supported the case of prosecution and stated that currency was recovered from the appellant. His evidence got support from evidence of defence witness Qadeer Khan who stated that currency was secured from the bag which A appellant was carrying. In the circumstances evidence of the Mashirs is material and it is clear that both the Mashirs were appeared to won over. The notice under section 171 of the Act was served on the appellant as it is Exh. 3-A and appellant in his statement Exh. 14-.a admits his signature but states that he does not know what was written in the notice. The legal requirement has been fulfilled. The defence plea that Abdul Qadeer Khan was let of and appellant was substituted in his place is unbelievable. No enmity has been alleged with complainant and Muhammad Hashim. They have no reason to implicate appellant falsely. It has been also clearly stated in the evidence of complainant and Hashmi that appellant was directed to make a declaration. It was also pointed out by the learned State counsel that complainant was senior preventive officer, therefore, it was of no use, to take the appellant to another Custom Officer. The authorities cited by Mr. Sohail Muzzaffar are not relevant. Moreover, neither Qadeer Khan nor another defence witness left Karachi on the night for the reason best known to them. The learned Special Judge has fully discussed the evidence of all the witnesses and also cited relevant law while deciding the case. The prosecution in these circumstances have proved the case and the appellant has rightly been convicted by the learned Special Judge (Customs and Taxation) Karachi. The appeal is dismissed. Appellant is on bail. He shall be remanded custody to serve out remaining sentence