This is an appeal against the judgment of conviction passed by the City and Additional District Magistrate, Karachi, where the two appellants were convicted under section 167(81), Sea Customs Act and sentenced to R. I. For five years. Alongwith the two appellants, Haji Kassim had also been challaned, but he continued to an absconder and the case against hint has been kept on dormant file. Aggrieved by the said judgment and conviction, appellant Abdul Hamid has filed an appeal through Mr. Azhar Sated, Advocate and appellant Haji Ghulam Mohiuddin through Mr. M. A. Naqvi, Advocate. The State was represented by Mr. Usman Ghaaru Rashid, Assistant Advocate-General.
2. Briefly stated the facts of the case are that Customs Officers Syed Ibrar Ali (P. W. 1) and Asghar Hussain Shah (P. W. 4) of the Directorate of Customs Intelligence and Investigation. Karachi received information about smuggled foreign cloth, watches, etc., lying in house No. 40-41, Liaquatabad No. 10, Karachi. This house, a: per information received b 27-5-1967 by the aforesaid Customs Officers, was it joint occupation of the two appellants who are real brothers. A gliding party headed by the Superintendent rushed to the said premises without obtaining a search warrant as they feared that during the time that was likely to be consumed for obtaining the search warrant, the goods might be removed. On the same day at about 5-30 p.m. The Customs party picked up Muhammad Hanif (P. W. 2), Shamse-e-Alam (P. W. 3) and Shahid Hussain Salehi (not examined in Court); and went up to the house where the smuggled goods as per information of the Customs Officers were lying. These witnesses are residents of Liaquat--abad, the same locality where the house in question is situated. On reaching the house, the door was knocked and appellant Abdul Hamid came out and a notice of search as required under section 172-A of Sea Customs Act was served on him and his signatures were obtained on copy of the same in token of receipt of the notice. The notice has been produced on record as Exh. P/l. This house although covering two separate but adjoining plots bearing Nos. 40 and 41 is in fact one compact unit consisting of four rooms and a single set o1 conveniences. Out of the four rooms, one was locked and on a search of the remaining three rooms, nothing was found. The Customs Officers asked Abdul Hameed to open the lock but on expression of his inability on the ground that the key of the same was with appellant Ghulam Mohiuddin the lock was broken. From the looked room, the Customs party secured: besides 1203 yards of Tetron and 260 Titus wrist-watches, the following property:--
(1) Imitation Jewellery of miscellaneous items.18 Cards Rs.
36.00
(2) One sample card containing8 pairs of car tops (Imitation). 1 Card Rs. 8.00
(3) Bonus Playing Cards:Six Packs Rs.
30.00
(4) One card of ejector Cigarette holders.9 Pcs. Rs.
36.00
(5) Printed Rayon Silk Scarf 3l" x 31" made in Japan.2 PCs. Rs.
15.00
(6) Foreign neckties in different shades.9 Pcs. Rs.
140.00,
(7) Pakistan International Passport No. 232532 in the name of Hahi Ghulam Mohiuddin issued at Karachi on 27-1-1956.
(8) Miscellaneous documents and Photographs.
(9) Writing Pad printed heading Kassim Haji Kamen Exporters. Importer 3 Moolji Jetha Market, Karachi. One.
(10) Two travellers cheques of American Express Company bearing numbers .F. 30.740.684 & F.
30.740.686 in raxine cover of the First National City Bank of New York.
(11) One Golden Bank Note of Netherlands bearing No. 4VV015 , 38.
(12) Rupees 174 (One hundred and seventy-four) in Bank notes of Pakistan i.e. One hundred-rupee note bearing No. A 690740 and fourteen notes of Rs. Five denomination and four notes of Rs. One denomination.
(13) One Hessian cloth piece bearing marks.
(14) One steel box of black colour.
(15) One Bank note of Netherlands of 2-- Golden, No. 2DP040018."
The property was seized as it was smuggled and/or furnished valuable evidence in the case. It may be stated that a Passport in the name of appellant Haji Ghulam Mohiuddin was found from a box in which the watches and some other items out of the seized property were found. It may also be mentioned that the seized cloth was lying in a corner of the room in a heap and was covered with cloth. The total value of the property secured amounts to nearly Rs. 1,00,000. The mashirnama of seizure was prepared on the spot and the same has been pro--duced in evidence as Exh. P/2.
3. Among other documents, the Customs party also found writing pad with the printed heading which read as follows:-- ---Kassim Haji Kareem Exporter and Importer 3 Moolji Jetha Market, Karachi.--- The Customs party thereafter proceeded to a house in a building known as Sky View Building. Frere Road, Karachi, perhaps, because Kassim whose letter-head was found in the raid at the house of the appellant, was living in that building. The prosecution evidence however disclosed that some foreign cloth was recovered from the said: Flat but the same was later returned by the Customs party to Kassim.
4. After the seizure, a F. I. R. Was registered at the customs Directorate by Asghar Hussain. In this report, the names of the appellants appear along with the name of .Absconder Haji Kassim. On 9- 6-67, the Directorate of Customs submitted an interim charge-sheet wherein, they showed appellant Abdul Hamid as a person sent up for trial. And .Appellant Haji Mohiuddin and absconder Haji Kassim as a person not sent up for trial. Subsequent to the submission of this interim charge- sheet a final charge-sheet was submitted in Court, under the signature of P. W. Ibrar Ali, wherein both the present appellants were shown as the accused sent up for trial and Haji Kassim was shown as a person not sent up for trial. It seems that during the trial, the prosecutor incharge of the conduct of the case made an application for summoning Haji Kassim as an accused person and this application was granted, but Haji Kassim could not be secured. The case thereafter proceeded against the present two appellants.
5. At the trial the prosecution examined the two Customs Officers and two Mashirs whose names have been mentioned above. Their evidence is mainly to the effect of recovery of the property and occupation of the premises from where the smuggled goods were recovered.
6: Appellant Abdul Hamid in his statement before the trial Court admitted that a raid had been conducted at the 3' house in question, but no notice as required by section 172-A, Sea Customs Act was given to him. He further stated that appellant Haji Ghulam Mohiuddin did not live with him but three other brothers of his lived in the same house. With regard to recovery of property he stated that he was not shown what was recovered and was only informed of the recovery at the Customs Office after his arrest. He alleged that mashirnama was not prepared at the spot. To a question whether he had been arrested by the customs authorities on the spot after the recovery of the seized articles in presence of Mashirs, his reply was in the affirmative. He further stated that witnesses gave evidence against him because they were Customs employees. Appellant Haji Ghulam Mohiuddin denied any knowledge about the raid or recovery and stated that in those days he wed to live with his in-laws at Embankment Road, which locality is at a distance of about 4 miles from the place where the goods were seized. He further stated that although the house from where the recovery had been effected was not occupied by him he had one box in that house in which articles belonging to him and his wife along with his passport lying. When asked to explain the reason for false implication he stated that, he did not know why the witnesses were deposing against him. After the charge was framed against the two-- appellants, they examined defence witness Muhammad Hussain in, r their defence. This defence witness who is related to the appellants --stated that he lived in Quarter No. 50-A in the same locality and that he saw some persons in the house of appellant Abdul Hameed. He further stated that those persons took out a-- Passport and some cash from a suitcase lying in the house and thereafter went away. After the examination of this witness, the learned Magistrate re-called and re-examined Mohammad, Hanif (P. W. 2). The witness stated that about a year before the date of his examination, he was taken by appellant Haji. Ghulam Mohiuddin to the house of defence Advocate and. Was tutored to give evidence. The reason for re-examination of Muhammad Hanif appears to be that the prosecution wanted to show that Muhammad Hanif had been won over by the: appellants and had given evidence of an obliging nature in favour of the appellants. Another witness Zamiruddin Ahmed; of the Customs Directorate was also examined to prove that-- Kassim had absconded. The first point that the learned, Advocates for the appellants have taken before me is in regards to the property being smuggled property i.e. Whether this is, such property, the import whereof is restricted or prohibited, within the meaning of section 3 of the Imports and Exports. (Control) Act, XXXIX of 1950.
My attention was invited to a Notification bearing No.335/260/24 dated 12th June 1951 issued by the Ministry of Commerce and Education, Government of Pakistan, appearing in the Gazette of Pakistan (Extra--ordinary) at page 411. In the Schedule appended to the-- Notification item "clocks and watches" appears at page 413 and the item "textile and textile manufactures not otherwise specified" appears at page 414. The Notification clearly states that the Central Government had prohibited the import of the-- goods specified in the Schedule from any country outside Pakistan.
This clearly shows that the import of watches and foreign textiles has stood restricted since 12-6- 1951. Under --section 377-A of the Sea Customs Act, the burden then shifts to the appellants to show that the goods were imported in a valid manner on payment of duty and after compliance with other formalities in regard to import. This burden, the accused: have not discharged and, therefore, I have no hesitation its holding that the import of textiles and watches was banned or -- restricted from 12-6-51. It is also dear on record that clone and watches are foreign. No doubt this Notification was --superseded by a subsequent Notification of the Ministry of Commerce Government of Pakistan, by a Notification bearing No. R.S.O. 1264 (K)/68 dated 24th July 1968 but since this offence was committed on 27-5-1967, the earlier Notification dated 12-6-51 applies to this case. It may be mentioned that even in the latter Notification, textile fabrics and watches are prohibited items.
7. With regard to recovery of the articles from house, No. 40-41 in Liaquatabad No. 10. No doubt can be entertained. --The two Customs Officers and two Mashirs have clearly deposed to the fact of this recovery. Nothing has been brought out in evidence of these witnesses to cast a doubt on their evidence relating to this recovery. Even P. W. Mohamed Hanif has supported the prosecution on the point of recovery. In fact even in cross-examination, the suggestion of the defence has been to the effect that the property was recovered from the house of absconder Kassim and not from the house as stated by the witnesses. There is hardly any material on the record to show that the property was recovered from the house of absconder Kassim and on the other hand there is evidence on the record that property recovered from the Flat of Haji Kassim was shown in a separate Mashirnama (Exh. P/4). It is further in the evidence of P. W. Asghar Hussain Shah that even this property was claimed by Kassim on the basis of documents sowing lawful import and who returned to him. There is as such no reason whatsoever to come to the conclusion that the property in question had been recovered from absconder Kassim, but has been falsely shown to have been recovered from the present two appellants. The value of the property is about Rs.
1,00,C00 and even for that reason it would be inconceivable that the Customs party would foist the property on the present appellants.
8. Coming to the case of appellant Abdul Hamid, he has admitted that he was present in the house when the Customs Officers had come for the raid. He also admits that he was arrested from his house by the customs officers. The house in question consists of four rooms and is a single unlit.
There is evidence that the room from where the property in question was recovered is not separated by any partition or dividing wall. The property having been found in one room out of these four rooms and this one room being locked must to the knowledge of appellant Abdul Hameed. It is inconceivable that appellant Abdul Hameed could not be having a knowledge about the goods lying in tile room. The nature of the good (12.03 yards of cloth) is such that the bringing in of the goods I the house must have come to his knowledge by which I mean that he must be knowing that the goods are lying in that room. He admits that he is living in that house. Under section 167 (83) of the Sea Customs Act, it is sufficient if the prosecution shows that a person is in any way "concerned" in the depositing or keeping or concealing of any goods. The word 'concerned' is of wider import than the word 'possession'. ---Concerned' defined in the Chambers Dictionary means "to relate or belong : to effect or interest: to involve by interest, occupation or duty." So that if a person is involved by interest in any manner, he would be deemed to be concerned in that particular matter. In a case decided by the Supreme Court and reported in PLD 1970 SC 282, it was held that the question of a person being concerned in an offence falling under item 8 (a) of section 167, Sea Customs Act depends upon the facts and circumstances of each case. In that case, the conviction of the accused was upheld when contraband goods were recovered.' from the boot of the Taxi in which 10 s travelling along with other passengers and on evidence it was established that he was concerned in the keeping of the contraband, goods. Even in this case it is clear on facts that appellant Abdul Hamid was concerned with the keeping and concealment of the property in the house where he was admittedly staying. I have as such no difficulty in holding that Abdul Hamid has been rightly convicted.
9. Coming to the case of Haji Ghulam Mohiuddin, the learned Magistrate while discussing the case has besides other circumstances, taken into consideration a circumstance which he could not have taken into consideration. On the point of Haji Ghulam Mobiuddin staying in the house in question or being in possession of the same, the learned Magistrate has taken into consideration a Bail Application made on behalf of Haji Ghulam Mohiuddin by the Advocate for, the appellant. This application which has been exhibited as Exh. P/8 shows that Haji Ghulam Mobiuddin and his brother Abdul Hamid had been living in the house from where the recovery has been made. The learned Magistrate has sought to use this admission by the Advocate for the appellants by virtue of section 18 of the Evidence Act. To my mind, the learned Magistrate committed an error in law by taking into consideration an admission made by the Advocate for the accused in a Bail Application, when the admission is to the detriment of the accused. The question of admissions made by Agents in Criminal Cases was considered by Mr. Justice Mohammad Munir in his book "Law of Evidence", 1969 Edition, and at page 62, the following passage appears:- "Admission by agent in criminal cases.---An Admission by an agent is never evidence in criminal cases as it sometimes is in civil cases. An exception to this general rule is found in section 30, according to which the confession of an agent may be admissible against the principal if both are jointly tried for the snipe offence."
10. In my humble opinion, such a statement could not be admitted even under the provisions of section 30 of the Evidence Act. Under section 30, what can be admitted against the accused is a confession made by the co-accused. In this case admittedly the Advocate for the accused was not on trial and whatever statement he had made could not be admitted under section 30 of the Evidence Act.
Furthermore, section 126 of the Evidence Act completely bars disclosure of a communication made by the client to the Advocate unless the client expressly consents to such disclosure. In the present case there is nothing on record to show that appellant Ghulam Mohiuddin had permitted his Advocate to disclose the fact. Even in the statement of appellant Ghulam Mohiuddin under section 343, Cr. P. C. No question had been asked from the appellant as to whether he had instructed, his Advocate to make such a statement" or had instructed his Advocate regarding occupation of the house in question In this Context, my attention was drawn to the case of Ali Nawaz Gardezi v. Lt.-Col. Mob& Yousuf (PLD 1962 Lah. 558). In this case, Mr. Justice Shabbir Ahmed had examined the Advocate for the accused who was being tried before him on charges under sections 497 and 498, P. P. C. The statement with regard to which the Advocate was examined was the statement made by a witness and not an accused and surely the Advocate was not representing that witness nor had he been professionally engaged for that witness. The facts of that case apart from the proposition are entirely different and distinguishable from the facts of the present case.
I, therefore, hold that the circumstance based on the admission contained in the Bail Application made on behalf of appellant Haji Ghulam Mohiuddin by his Advocate. Cannot taken into consideration for the decision of this case.
11. The other point that has been urged before me by the learned Advocate for the appellant Ghulam Mhoiuddin is that in the interim charge-sheet submitted by the Intelligence Officer on 9-6- 1967, he had not been sent up for trial and for that reason the final charge-sheet submitted on 1-8- 1967 wherein he had been shown as an accused person arraigned before the Court for trial did not authorize the Court to try him. In my view the contention is completely misconceived and fallacious. The question of 4 person being placed on trial or having been shown in column 2 of the charge-sheet has recently been the subject-matter of several decisions of superior Courts. In the case of Falak Sher v. The State (PLD 1967 SC 425) the facts were that in the report under section 173, Cr. P. C. The Investigating Officer had placed the name of the accused in column 2 indicating that the accused had not been arrested and was not sent up for: trial. The trial Court on receipt of the report was of the view that it was not bound by the report and summoned the accused so shown in column 2 for trial and proceeded with the trial which resulted in conviction. The matter ultimately went up to the Supreme Court and their Lordships observed that a Magistrate may or may not agree with the police report and in case he disagrees with the report, there was nothing to prevent the Magistrate from acting under clause (b) of section 190, Cr. P. C. Which authorizes a Magistrate to proceed even against such persons who are shown in column 2 of the report. The same view was affirmed by Mr. Justice Muhammad Yaqub Ali and Mr. Justice Waheeduddin Ahmed in a Leave Petition in the case of Mohammad Arif v. The State (1970 P Cr. L J 896). Even in the case of Zaffar Sarwar v. The State (1969 P Cr. L 1181) the point was considered and the con--census is that a Magistrate has the power of disagreeing with the Police report. In another case Noor Mohammad and others v. Mohammed and another (1969 P Cr. L. J 567) my Lord the present Chief Justice upheld the judgment given by the High Court wherein the High Court had taken the view that it was open to a Magistrate to take cognizance under section 190 (b), Cr. P. C. In spite of the Police having placed the accused in column 2 of the report under section 173, Cr. P. C.
12. Since even in such cases where police had shown a person in column 2 of the report under section 173, Cr: P. C., the Court has the power of trying such person despite police abstaining from putting him on trial, I see no reason why person could not be tried for the reason of his being mention in column 2 of the interim charge-sheet, and moreso, when I the final charge-sheet, his name was shown in the column of the persons sent up for trial. I find no force in this contention and disagree with the submission of the learned counsel, who raised this argument.
13. ' On facts the case against Haji Ghulam Mohiuddin is based on the evidence that he is shown to be in occupation of the - house from which the contraband goods have been recovered. P. W.
Mohammad Hanif has stated that house in question belongs to appellant Ghulam Mohiuddin. The appellant in his own statement has stated that he had one box lying in the house wherein he had kept some articles belonging to him and has wife and he had also kept his expired Passport there.
In the Mashirnama Exh. P/2, the recovery of a steel box of black colour is specifically mentioned. All the witnesses have stated in evidence that 260 watches were recovered from the box, There is no evidence and not even a suggestion in cross-examination to show that besides this one box from which these watches were recovered, there was some other box in the room from where the contraband goods were recovered. With regard to this box, the appellant has claimed ownership and this is a very strong circumstance against the appellant in this, case. The recovery of the Passport, which is also admitted by the appellants a further link in the chain of circumstances against the appellant Ghulam Mohiuddin. The appellant has in hisstatement said that in those days he was living with his u in-laws on Embankment Road. The appellant has not produced any 'witnesses in defence to substantiate this defence. He has not named any person in whose house he was living nor has he mentioned the survey No. Or name of the building where he was living.
Furthermore it is highly improbable that being 43 of age and in service in National Bank of Pakistan, he would go to live with his in-laws when he had a house of his own in Liaquatabad. The fact of the house belonging to him has been deposed to by the witnesses. In fact if he had been living with his in-laws, there would be no reason for keeping any articles belonging to him and his wife in the house from where the recovery was made. In his statement before the trial Court n 14-1.1-1970 he had shown himself to be an inhabitant of the house from where the recovery was made. The mere fact of his absence from the house at the time of raid and recovery will not absolve him of the liability of being concerned in the keeping of contraband goods. I; therefore, find that he has bee rightly convicted by the trial Court.
14. In the result, appeal of both the appellants is dismissed. The sentence of five years' R.I. Awarded to them appears to be severe and I reduce the sentence to three years R. I. Appellant Haji Ghulam Mohiuddin is on bail and he shall surrender and serve out the sentence. Appellant Abdul Hameed is in custody and he shall serve the remaining portion of the sentence.
(1) Imitation Jewellery of miscellaneous items.18 Cards Rs.
36.00
(2) One sample card containing8 pairs of car tops (Imitation). 1 Card Rs. 8.00
(3) Bonus Playing Cards:Six Packs Rs.
30.00
(4) One card of ejector Cigarette holders.9 Pcs. Rs.
36.00
(5) Printed Rayon Silk Scarf 3l" x 31" made in Japan.2 PCs. Rs.
15.00
(6) Foreign neckties in different shades.9 Pcs. Rs.
140.00,
(7) Pakistan International Passport No. 232532 in the name of Hahi Ghulam Mohiuddin issued at Karachi on 27-1-1956.