Appellant Abid A.I was tried by Mr. Muhammad Ishtiaque Hussain, Special Judge (Customs and Taxation), Karachi for the offence under section 156(1)(8) of the Customs' Act, 1969, who vide judgment, dated 29-8-1984, convicted and sentenced him to suffer R.I. For one year and to pay a fine of Rs.20,000 or in default to suffer R.I. For another six months. The appellant has challenged his conviction and sentence by filing this appeal.
2. The case of the prosecution as unfolded in F.I.R. Lodged by Choudhry Muhammad Rafique, Senior Preventive Officer, Customs, on 24-2-1982 at 6 a.m. Is as follows:- "During the night of 23/24 February, while I was on duty at Karachi Airport, received an information that a passenger named Abid A.I would smuggle a huge quantity of wrist watches into Pakistan and would arrive by flight PR-716 from Manila. Strict surveillance was maintained on all the passengers of the said flight and finally passenger Abid A.I was spotted in the Customs Examination Hall Terminal-I, Karachi Airport. His baggage was comprising of two suit cases bearing Baggage Tag Nos. CX-447643 and CX-447644 and one brief case (Tourister) without tag were segregated. He was asked to declare whether he was carrying contraband wrist watches etc. To which he replied in negative. Being dissatisfied with his statement, his two suit cases and one brief case were examined in presence of two Mashirs namely Mashkoor H. Khan and Abdul Waheed which resulted in recovery of 396 Nos. Gents wrist watches and 3 packets of pins and clips for watch chains, from the brief case only. The personal search of the passenger was also conducted in the presence of aforesaid Mashirs which resulted in recovery of travelling documents and purchase voucher as mentioned in column 5. The offending 396 Nos. Wrist watches and travelling documents and purchase vouchers mentioned in column 5 were seized under a Mashirnama prepared on the spot. Accused Abid A.I son of Abdul Samad was arrested accordingly.
Notice under section 171 of Customs Act, 1969 was served upon him.
Investigation is in progress. F.I.R. Is lodged accordingly."
3. After completing the investigation the appellant was sent up before Special Judge (Customs and Taxation), Karachi, to stand his trial.
4. At the trial the prosecution examined Mashkoor Hassan Khan (P.W.l), Choudhry Muhammad Rafique, Senior Preventive Officer (P.W.2) and Muzzamil Hussain, 1.0. (P.W.3).
5. The appellant met the charge by a denial. According to him, the watches alleged to have been secured from his brief case were foisted upon him.
6. I have heard Mr. Ata-tir-Rehman, learned counsel for the appellant and M. Syed Ashique A.I Zaidi, learned counsel representing the State.
7. There is satisfactory evidence on record connecting the appellant with this crime. Choudhry Muhammad Rafique (P.W.2), who is Senior Preventive Officer, Customs, was on duty at the Airport when the appellant, a passenger from Manila, brought his baggage, which was examined by him and from the brief-case which he was carrying 396 watches were recovered. On personal search the Customs Officer secured purchase voucher of these watches. Such memo. Was prepared in presence of Mashirs Mashkoor Hassan (P.W.1), who is working as Inspector in Plant Quarantine Department and was on duty at the Customs Examination Hall, Terminal No.1, Karachi Airport. He has fully supported the case of the prosecution. Admittedly Mashkoor Hassan Khan (P.W.1) has acted as Mashir in 5 or 6 customs cases prior to this case, and this factor alone has been made as basis to challenge his evidence labelling him as `stock witness'. This plea was also raised before the trial Court and the same was rejected for good reasons, which may be reproduced below:- "In cross-examination this witness frankly admitted that in some other customs cases also he had figured as Mashir. This fact by itself does not react upon the reliability of this witness. .Since this witness had been having his duty at the Airport, his acting as a Mashir in cases detected by Customs officials during his duty hours, therefore. Is not improbable and unbelievable. On the contrary he is natural witness and his truthfulness cannot be doubted on account of his respectability. This witness emphatically denied the suggestion that he is a professional Mashir and that he had been contacting the accused and his relations for some settlement and since no settlement could be arrived at he deposed falsely against the accused. His evidence also in my opinion is trustworthy and in complete conformity with the. Testimony of P.W. Rafique Choudhry on all material aspects of the case."
8. The object in requiring the presence of two persons to witness the search is to ensure that searches are conducted fairly and to exclude the possibility of any malpractice. In such cases, the services of persons employed at, the Airport or connected with such persons can 'only be 'procured, and, therefore, the Court should not start with any presumption against them and discard their evidence simply on the ground that such a witness has acted as Mashir in few other cases also. The right way of judging such evidence is to consider the evidence on merits in each particular case. No hard and fast rule can be laid down as to how such evidence should be appreciated.
9. The real question which falls for determination is regarding the recovery of smuggled watches worth Rs.1,38,000 from the possession of the appellant, which the prosecution has successfully established. The brief-case which contained 396 watches was secured from the possession of applicant. On personal search the purchase voucher of these watches (Exh.38/11) was also secured. I have considered the criticism made on behalf of the appellant and have also considered the arguments in detail urged before me to persuade myself to discard the evidence relied on by the trial Court but I do not feel impressed with the arguments, nor I can see any way to discard the evidence by reason of the criticism that has been offered against it. The trial Court has dealt exhaustively with the evidence. The contradictions are not of material kind. After all Choudhry Muhammad Rafique, Senior Preventive Officer (P.W.2) had no reason to implicate the appellant falsely. From the above it seems to me as clear as day light that the appellant is guilty for the offence with which he was charged. He was, therefore, rightly convicted by the learned Special Judge.
10. Lastly it was half heartedly suggested that the appellant was entitled to leniency. In my view he was dealt with leniently and there is no occasion to show him more leniency. The appeal has no merits and is accordingly dismissed. The sentence of imprisonment and fine is maintained. The trial Court shall take necessary steps for the arrest of appellant.
N.H.Q./A-545/K