1. 'This order will govern the disposal of above-noted two Special Criminal Appeals filed against the judgment of Special Judge, Customs and Taxation, Karachi dated 13-3-1985. Appeal No,6/85 is filed by Appellant Zahid All son of Jamil Ali, Wazir Hussain son of Khurshid Mirza and Muhammad Ali son of Muhammad Ashraf while Appeal No,9 of 1985 is filed by Iqbal Talib son of Talib Hussain. All the above-named four appellants were tried on the allegation that they smuggled in Pakistan 216 slabs of gold each weighing 10 Tolas and were convicted under section 156(1) (8) of the Customs Act to undergo R.I. For 3 years and fine of Rs, One lac each and in default of payment of the fine to suffer further R.I. For one year. Learned counsel for the appellants contends that the appellants have been convicted on the sole testimony of seizing officer Khawaja Zeshan Hasan, which is not sustainable in view of provisions of Article 17 of Qanoon-e-Shahadat read with section 159(3) of the Customs Act, 1969. It is also contended by the learned counsel for the appellants that in view of the denial by the appellants that they owned the gold allegedly recovered from their possession there is no evidence on record to prove the recovery of the contraband gold from them as both the Mashris in whose presence the gold was allegedly recovered did not support the case of the prosecution. The learned counsel for the State on the other hand supported the convictions and sentences awarded by the learned Special Judge and contended that the testimony of seizing officer was fully corroborated by the recovery of the contraband goods and was also supported by the evidence of one of the Mashirs substantially who was not declared hostile by the Court. After hearing the learned counsel for the parties at length I am of the view that the convictions and sentences awarded by the learned Special Judge, cannot be sustained in law. The search under the Customs Act is to be made in accordance with the provisions of section 159 of that Act.
2. Subsection (3) of section 159 makes it necessary that before making a search under section 158 the officer of the Customs shall call upon two or more persons to attend and witness the search and for that purpose he is authorised under that section to issue an order in writing in that behalf to those persons. It is also provided in that subsection that search is to be made in presence of such Mashirs and a list of articles so seized shall be prepared by such Officer or other persons and signed by such witnesses. It is an admitted case of the prosecution that all the four appellants were searched separately by the seizing officer and different quantity of gold was recovered from them as a result of four different searches. It is also an admitted position that all the 4 searches made by the seizing officer were separately witnessed by the two Mashirs. In spite of these admitted positions I find that only one Mashirnama was prepared for all the four searches made by the seizing officer and it is not disputed by the learned State counsel that this Mashirnama was not prepared on the spot but in the office of Superintendent of Customs. Besides the fact that the failure of the seizing officer to prepare the Mashirnama for each search in accordance with the law amounted to an irregularity which created doubt as to its correctness of these searches otherwise could not be established at the trial as both the Mashirs who were examined by the prosecution in support of the recovery did not support the case of the prosecution. One of the Mashirs namely Gohar Rehman refused to identify the accused persons as well as the recovery of the gold from them and was declared hostile by the Court, but nothing could be brought out in the cross- examination of this Mashir by the prosecution counsel. The other Mashir Qasir Abbas also did not identify the accused persons though he confirmed the recovery of the contraband gold under the Mashirnama. This witness was not declared hostile and his evidence only supported the recovery and not the identification of the accused, which was necessary to sustain the convictions of these appellants if the evidence of the seizing officer was sought to be corroborated by the evidence of this Mashir. As search and recoveries could not be proved for want of evidence and non- compliance of requirement of subsection (3) of section 159 of the Customs Act the learned counsel for the appellants justifiably contended that the convictions and sentences awarded by the learned Special Judge, to the appellant could not be sustained on the sole testimony of the seizing officer. I accordingly accept both the appeals, set aside the convictions and sentences awarded by the learned Special Judge, Customs and Taxation Karachi. The appellants are on bail, their bail bonds are cancelled.