' Since both these appeals filed under section 185(f) of the Customs Act, 1969, have arisen out of the same judgment, they are being disposed of together.
2. The case of the prosecution in brief is that on the night between 27-12-1977 and 28-12-1977, the Preventive Officer Customs stopped a Swissair station-wagon proceeding towards freight-gate at the Karachi Airport. On search amongst several mail bags in the station-wagon, two mail bags were found to contain suit-cases wherefrom imitation jewellery was recovered, valued at Rs,86,500.
The said station-wagon was being driven by appellant Syed Hussain ElEdroos. (Special Criminal Appeal No, 8 of 1979), while appellant Muhammad Salim Abdullah Nazkani (Special Criminal Appeal No, 7 of 1979), was sitting by his side. During the course of investigation it transpired that third accused, namely, Ayaz, a Tanzanian national, who had arrived by Swissair flight to Karachi from Hongkong had booked these suit-cases from Hongkong. Accordingly, he was also arrested and sent up alongwith two appellants to the Court of Special Judge (Customs and Taxation)
Karachi, to stand trial for the offence under clause (8) of section 156(1) of the Customs Act, 1969.
3. At the trial all the three accused pleaded not guilty. The prosecution has examined in all six witnesses. Appellant Muhammad Saleem Abdullah Nazkani examined Mr. Gubler Urs, Station Manager, Swissair, Karachi (D.W.1), while appellant Syed Hussain El-Edroos examined Mr. Karim Maklai, Deputy Station Manager, Swissair, Karachi (D.W.2), in their defence.
4. On the assessm ent of evidence adduced by the parties, the learned Special Judge (Customs and Taxation), Karachi extended benefit of doubt to accused Ayaz and acquitted him. He, however, convicted both the appellants for the said offence and sentenced each of them to undergo simple imprisonment for one year and to pay a fine of Rs,20,000 or in default to further undergo simple imprisonment for six months. This judgment dated 28-2-1979, is the subject-matter of these appeals.
5. There arc certain facts and circumstances in this case which are not in dispute. These are:-
(a) That both the appellants were officers employed with Messrs Swissair, Karachi.
(h) That both the appellants were on duty on the night of incident at the relevant time.
(c) That the subject suit-cases had arrived by Swissair flight from Hongkong during that night.
(d) That appellant Muhammad Saleem Abdullah Nazkani was detailed to off-load cargo from compartment No,1, of the belly of the aircraft.
(e) That the baggage and mail which was off-loaded from compartment No,4 of the belly of aircraft was handled by appellant Syed Hussain El-Edroos.
(f) That the officer working in compartments Nos. 1 to 3 of the belly of aircraft cannot see compartment No,4.
(g) That the officer incharge of compartment tallies with manifest of the number of the bags or baggages and then takes over the delivery.
(h) That both the appellants were present in the station-wagon of the Swissair when it was intercepted near the freight-gate.
(i) That appellant Syed Hussain El-Edroos was driving the said station-wagon when it was stopped by the Customs Officers.
(j) That appellant Muhammad Saleem Abdullah Nazkani was sitting on the front scat by the side of appellant Syed Hussain El-Edroos when the station-wagon was stopped by the Customs Officers.
(k) That the two mail bags secured from the said station-wagon containing suit-cases were found beneath other mail bags.
(1) That the suit-cases were searched on the spot and imitation jewellery was recovered.
(m) That the freight cargo office of Swissair is about 20 yards from the freight-gate inside the Customs area.
6. Let me in the light of these facts examine the case of the prosecution in juxtaposition to the version given by the appellants to sec whether I could reasonably reach a conclusion that the latter version about the placing of suitcases in mail bags and then keeping them in station-wagon without knowledge could be held to be true or that it in any appreciable measure rendered the case of the prosecution such which it might not be safe to accept for recording conviction.
7. The recovery of the smuggled goods from the station-wagon of Swissair not being disputed, the whole case of the prosecution now hinges upon the question, whether the possession of the goods by the appellants or any one of them, was conscious or accidental. Since the case of appellant Muhammad Saleem Abdullah Nazkani, is on different footing, I propose to examine it first. There is no dispute that this appellant was sitting by the side of the driver on A front seat in the station- wagon, when the same was stopped by the Customs Officers, and from the rear side two suit- cases containing smuggled goods, viz. Imitation jewellery were seized. The defence of the appellant as unfolded in his written statement (Exh.13/A) is as follows:- "(4) That on the night of the incident I was detailed to supervise cargo from compartment No,1 only.
This was cargo only. It had no baggage and no mail. That the said cargo from compartment No,1 was off-loaded by the loaders and removed to the Cargo Shed.
(5) On the night of the incident I never saw the baggage or the concerned mail bags as they were in compartment No,4 which was on the other side of the aircraft. As a result anyone in compartments Nos.1, 2 and 3 could not see compartment No,4 from there.
(6) That after finishing my work I in the normal course of my duty, was proceeding towards the cargo office which is adjacent to the freight-gate, I saw Mr. Al-Edroos co-accused driving the Swissair vehicle in the direction of the freight-gate. As it is usually done by the staff I asked for the lift up to the cargo shed and sat into the vehicle with him in the front seat. Before we reached the Swissair Cargo Office we were intercepted by the Customs Officials who on inspection of the rear of the vehicle recovered 8 or 9 mail bags out of which two were found to contain the alleged imitation jewellery. I state that it is at this point of time that I saw for the first time the two mail bags containing imitation jewellery. I had never seen them before either at the aircraft or in the vehicle. I had neither seen them being off-loaded nor had any occasion to come into contact with them or see them. Following the recovery I was detained under suspicion alongwith co-accused El-Edroos. I was as much surprised as shocked at the recovery of this jewellery. In these circumstances I became an innocent victim. I am innocent and I have not committed any offence nor abettd or attempted commission of such offence."
8. The defence of appellant Muhammad Saleem Abdullah Nazkani gets full' support from the evidence of Mr. Gubler Urs (D.W.1), who had obviously no reason to depose falsely. He was Station Manager, Swissair posted at the airport and was summoned by the Customs Officers to the Arrival Lounge soon after the incident. At any rate the admitted facts stated by me at para. 5 ante lend support to the plea advanced by this appellant that his presence in the station-wagon was B by chance. There is, therefore, good deal of force in the contention of Mr. Kaikobad, learned counsel for the appellant when he states that the prosecution has failed to prove possession, knowledge or concern of the appellant vis-a-vis,. The goods secured from the suit-cases. The learned Special Judge also erred in placing the burden of proof on appellant Muhammad Salim Abdullah Nazkani without discharging of the burden by the prosecution. In criminal cases the onus is on the prosecution to prove beyond all reasonable doubt the guilt of the accused. And there is only one standard of proof for all charges, and that is that the State must prove the charge beyond all reasonable doubt. It is true that under sections 156(2) and 187 of Customs Act, 1969, the burden of proof shifts upon the accused in certain specified circumstances, but that did not mean that the prosecution need not prove that the offence was committed by the accused. Where an accused person is called upon to prove the facts within the meanings of sections 156(2) and 187 of the Customs Act, 1969, the law treats the onus as discharged if the accused person succeeds in proving a preponderance of probability.
9. There are circumstances on record indicating that appellant Muhammad Salim Abdullah Nazkani may have committed the offence or may not have, and in such a situation he is entitled to benefit of doubt. Appellant Muhammad Salim C Abdullah Nazkani is, therefore, acquitted. He is on bail and is discharged from his bail bond. The fine, if paid, be refunded to him.
10. The case against appellant Syed Hussain El-Edroos is very simple. Admittedly he was the driver of the station-wagon which was intercepted and smuggled goods were secured from the suit- cases lying concealed in mail bags. , He was the Officer Incharge of compartment No,4, from where the mail bags were collected. According to Mr. Gubler Urs (D.W.1), who was the Station Manager of Swissair, the Officer In charge of the compartment tallies with manifest of the number of bags or baggages before taking the delivery. It is also the case of the prosecution that there were eight mail bags destined for Karachi, " but only six of the genuine mail bags were off-loaded and in place of remaining two, bags similar to mail bags were concealed under the genuine mail bags in the station-wagon. All this could not have been done without the actual complicity of appellant Syed Hussain El-Edroos. The witness examined in his defence in no way improves his case. The plea of valuation of smuggled goods was raised for the first time during the course of arguments, which is basically a question of fact and cannot be agitated at this stage. In this view of the matter, the learned counsel for this appellant has prayed for reduction of sentence. Appellant Syed Hussain El- " Edroos has remained in custody as under-trial prisoner from 28-12-1977 to 30-7-1978, when he was released on bail under the orders of the Supreme Court. He had to suffer the ordeal of the prosecution for more than eleven years. He has E also lost his job. Taking all these factors into consideration, the substantive sentence is reduced to that already undergone as undcrtrial prisoner. The sentence of fine is however, maintained. Appellant Syed Hussain El-Edroos is allowed one month's time to deposit the amount of fine before the trial Court, failing which he shall suffer S.I.
For six months.
11. In the result the appeal filed by appellant Muhammad Salim Abdullah Nazkani is accepted. The appeal filed by Syed Hussain El-Edroos is dismissed, with the above modification in sentence.