1. ' The appellant was charged and tried under section 156 (1) (8) of the Customs Act, 1969 before the learned Special Judge (Customs and Taxation) Karachi, who has convicted and sentenced him to suffer R.I. For five (5) years and to pay fine of Rs,1,00,000 in default whereof he was to suffer further R.I. For six (6) months. However, the accused was given benefit of section 382-B, Cr.P.C.
2. ' The brief facts of prosecution case are that on 20-5-1989 Mr. G.S. Mirani, Senior Preventive Officer, Customs House, Karachi lodged report inter alia alleging therein that on 20-5-1989 he received a credible information that one Bashir Ahmed son of Amanullah would arrive from Jeddah by PIA No,PK-732 and would make an attempt to smuggle gold into the country. In pursuance of the aforesaid information a strict watch was maintained and finally he succeeded in intercepting the aforesaid passanger Bashir Ahmed holding Pakistan Passport No, B-219186 who had arrived from Jeddah by P.I.A. Flight No, Pk-732. The said passenger was asked to declare whether or not he was carrying any contraband goods in his baggage or on his person to which he replied in the negative. Being dissatisfied with the passenger's declaration, his baggage comprising of one suit- case and one blanket bearing Tag Nos.P.LA-08-73-19 and P.I.A-08-06-79 respectively was examined in the presence of mashirs Akbar Khan and Ahmed Gul which resulted in the recovery of 2 slabs of gold each of one kg. Bearing foreign marks and numbers, which were cleverly stiched in a specially made cotton belt which was hidden in blanket bearing Tag No,P.IA-08-06-79 and 2 slabs of gold each of 10 tolas bearing foreign marks and Tag No,PIA-08-03-19. The gold so recovered was seized alongwith containers and travelling documents as shown in column No,4 above under the cover of proper mashirnama prepared on the spot. Accused Bashir Ahmed was arrested and was served with a notice under section 171 of the Customs Act, 1969.
3. ' After necessary investigation the appellant was challenged before the Court.
4. ' A formal charge was framed against appellant to which he pleaded not guilty.
5. ' At the trial prosecution examined complainant Ghulam Shabbir Mirani P.W.1, he has produced the copy of notice under section 171 of the Customs Act, 1969 served on the accussed as Ex.3-A. He has also produced mashirnama of seizure and arrest as Ex.3-B. He has also produced mashirnamas of recovery of passport, ticket, two baggage tags, two claim tags and two purchase receipts as Ex.3- C/1 to Ex.3-C/8. He has produced FIR as Ex.3-D, mashir Ahmed Gul P.W.2 he was declared hostile and cross-examined, mashir Akbar Khan P.W.3 he was also declared hostile and cross-examined, Investigating Officer Shakeel Haider P.W.4 he has produced valuation certificate of gold as Ex.6-A, Kashif P.W.5 who had issued the Valuation Certificate.
6. ' After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. In which he has denied the allegations, However, he did not examine himself on oath nor he examined any witness in his defence.
7. ' The learned Special Judge while relying upon the evidence produced by the prosecution has convicted the appellant as mentioned above and the present appeal is directed against the said judgment of conviction.
8. ' Complainant Ghulam Shabbir has reiterated the facts of his F.I.R. In Court in cross-examination. He has deposed that both mashirs are leaders in P.IA. The dates are mentioned on receipts Ex.3-C/7 and Ex.3-C/8. The dates are mentioned in Arabic. He had not mentioned the marks found on gold slabs in the F.I.R. He has also not mentioned the fact of recovery of purchase receipts in the mashirnama. He had not stated about the purchase receipts in his 161 Cr.P.C. Statement. He has denied a suggestion that he did not recover the purchase receipts from the accused. He had verbally asked the accused about the declaration and had not asked for his written declaration. He did not send gold to the analyser. He has denied that the gold recovered from the possession of accused was not gold. He has denied that the metal and baggage tags available in Court were not recovered from the accused. The claim tags do not bear the signatures of the mashirs. He has denied that he had obtained the signatures of the mashirs on a white paper.
9. ' Mashir Ahmed Gul has deposed that while he was on his duty at Terminal-II, Karachi Airport on 19- 5-1989, he was called by the Customs Officers and when he went there he found that the gold was lying on the table with suit-case. He did not remember if the present accused was present there or not. Mashirnama Ex.3-B, bears his signatures contents of which were not read over to him. Other mashir ,Akbar Khan had also signed the mashirnama in his presence. He was declared hostile and cross-examined by State Counsel. He has further stated that he is not subordinate to the Customs Officer. He had gone there voluntarily and was not compelled by the seizing officer to act as mashir. The mashirnama was not read over to him, but he had signed the mashirnama voluntarily.
10. He has denied that he has changed his statement in order to favour the accused. In cross- examination of the Defence Counsel he has stated that when his signatures was obtained on mashirnama only date was written on it.
11. ' Mashir Akbar Khan P.W.3 has also given identical evidence to that of mashir Ahmed Gul. He has also admitted in cross-examination of the State Counsel that he was not subordinate to the Customs Officer. Customs Officer had not compelled him to sign the mashirnama. He has also stated that he had signed the mashirnama voluntarily. He has denied that he had changed the statement in order to favour the accused.
12. ' Shakeel Haider, Preventive Officer, Customs P.W.4 has carried on the investigation and obtained Valuation Certificate Ex.6-A from Messrs Almas Jewellers and had challaned the accused in Court.
13. In cross-examination he has stated that he did not give piece of gold but had given entire gold to Mr. Kashif for examination. He did not send gold to Mint Government of Pakistan. He has admitted that he has not mentioned the date of recording statement under section 161, Cr.P.C. Mr. Kashif P.W.5 has deposed that he is partner in Messrs Almas Jewellers, Ishtiaque and Erum are his other partners. He deals in jewellery, gold present in Court was shown to him by the Customs Officer. He had informed the Coustom Officer that gold is of foreign origin. He had also told him about the price of the gold and issued certificate which has been produced in Court as Ex.6-A, in cross- examination he has deposed that he has been dealing in business of gold since eight years. He had issued the certificate on letter-head. He has admitted that he had issued the disputed certificate. He has admitted that he has issued the Valuation Certificate regarding the price of gold in market. He has no concern with Government Mint. No piece of gold was taken for chemical examination but he checked the entire gold and the same was found as gold.
14. ' I have heard Mr. Sohail Muzaffar, learned counsel appearing for the appellant, Mr. Niaz Ahmed Khan, learned counsel appearing for the respondent and have gone through the R & P of the case.
15. ' It was contended by Mr. Sohail Muzaffar learned counsel appearing for the appellant that marks and number of the gold was not mentioned in the mashirnama as well in the F.I.R. And therefore, there was no assurance that the property produced in Court was the same. He has further contended that the mashirs of recovery have not supported the prosecution, and therefore, the conviction of the appellant was illegal on the solitary evidence of complainant Mr. Ghulam Shabbir Mirani. He has further submitted that the gold which is alleged to have been recoverd from the appellant was not sent to the Chemical Examiner for examinations and reports and therefore, the evidence of the complainant that the metal recovered from the appellant was gold could not be relied upon. In support of his contentions the learned counsel has relied upon PLD 1982 Kar. 352, PLD 1987 Kar. 399 and 1989 P Cr. L J 1319.
16. ' Mr. Niaz Ahmed Khan, learned counsel appearing for the State has contended that Mr. G.S. Mirani complainant had no enmity with the appellant nor he had any reason to implicate the appellant falsely. It cannot be believed that the complainant could foist 2 Kgs of gold on the appellant and for no reasons. That the evidence of Mr. Mirani is further supported by the admission of the mashirs that they had signed the mashirnama voluntarily and that they were not coerced by any one to sign the mashirnama. That the mashirs were educated persons and the fact that they admit their signatures on the mashirnama goes a long way way to show that gold was recovered from the appellant and the mashirs have been won over. He has further contended that even otherwise the evidence of complainant being straightforward, natural and reliable could form basis for the conviction of the appellant. In this connection he has relied upon PLD 1981 SC 635 and 1986 P.Cr.0 1693.
17. ' I have considered the contentions of the learned counsel. Complainant Ghulam Shabbir Mirani P.W.1 has fully supported the contents of his F.I.R. And his evidence has not been shaken in cross- examination. As far as recovery was concerned, the evidence of mashir Ahmad Gul shows that he was on duty at Terminal No,II on 19-5-1989 from 11-00 p.m. To 7-00 a.m. He was called by the Customs Officer and when he went there, he found that the gold was lying on the table. He has futher stated that he could not remember if the present accused was present there or not.
18. Mashirnama Ex.3-B bears his signature but it was not read over to him.The other mashir Akbar Khan had also signed the mashirnama in his presence. In cross-examination to State Counsel he has stated that he is not subordinate to the Customs Officers. He had voluntarily gone there, and was not compelled by seizing officer to act as mashir. He has admitted that he voluntarily signed the mashirnama. Similar is the evidence given by mashir Akbar Khan. From the evidence of the mashirs it is clear that not only they had seen the gold lying on the table but they had voluntarily acted as mashirs and had signed the mashirnama. They were not compelled by Customs Officer nor they were his subordinates. There is nothing on record to show that from the date they signed the mashirnama, till they were examined in the Court, they moved any application before any authority that the gold was not recovered from the accused in their presence and the contents of the mashirnama were false.It clearly appears to be a case where the mashirs have been won over by the appellant for the reasons which one can conveniently understand. It is unbelievable that the Customs Officer will foist 2 Kgs of gold on a person with whom he had no enmity. The case of the appellant is simple denial and when a question was asked from him about recovery of his Passport, Air ticket, 2 baggage tags, 2 claim tags and 2 purchase receipts as Ex.3C/1 to 3C/8 from him he admitted the same. To a question as to why the PWs have deposed agianst him, his answer was "No PW has deposed against him". There is another important aspect which cannot be over- looked and i.e, a specific question was suggested to Ghulam Shabbir Mirani complainant in cross- examination that the gold secured from the possession of the accused was not gold and the witness replied in negative. In the case of Maqsood Ali v. The State PLD 1982 Kar. 352, the recovered gold was neither sent to the official mint nor it was sent to another expert for chemical examiner to determine whether the same was gold, it was held "A bald statement of `Appraiser' that what he examined was gold, would not be sufficient evidence to prove that the article was gold and the appellant was given benefit of doubt and acquitted." With utmost respect the facts of the above case are distinguishable and the same are not applicable to the facts of the present case inasmuch as in the present case one Kashif partner of M/s. Almas Jewellers was examined and he has specifically stated that he deals in jewellery. The gold present in Court was shown to him by Customs Officer and he had informed the Customs Officer that the gold is of foreign origin. He had also informed him about the price of the gold and had issued such certificate which has been produced as Ex.6-A and therefore it cannot be said that no expert was examined to prove that it was actually a gold.
19. ' In the case of Zahid All and 2 others v. The State PLD 1987 Karachi 399, wherein different quantity of contraband gold was recovered from 4 accused separately on search but only one mashirnama was prepared that also not at place of recovery but in the office of Custom Superintendent. Both mashirs did not support the prosecution case but only seizing Officer testified about recovery, it was observed that: "The search and recovery held could not be proved for want of evidence and non-compliance of provisions of Section 159(3) and the accused were acquitted."
20. However, in the present case as pointed out above the mashirs have not denied their signatures on the mashirnama nor they have denied the presence of gold.
21. ' They have further admitted that they had acted as mashirs voluntarily and therefore, there was no non-compliance of subsection (3) of section 159 of the Customs Act, 1969.
22. ' In the case of Saleem v.The State 1989 PCr.LJ 1319, wherein one mashir of recovery of pistol with bullet was not examined, while the other mashirs did not support the prosecution. The mashir were also not respectables of locality and therefore, it was observed that: "When the law requires that the search should be made in presence of respectable persons of the locality, it should be insisted upon and the conviction should not ordinarily be based on the uncorroborated testimony of a Police Officer and the appellant was acquitted."
23. However, in the present case according to the prosecution the recovery was made in presence of 2 mashirs whose presence was natural as they happened to be on duty at .Terminal No,11 and they were PIA Loader. Moreover the mashirs have supported the prosecution case to some extent.
24. ' In the case of Muhammad and others v.The State PLD 1981 SC 635 relied upon by Mr.Niaz Ahmed Khan learned counsel, it was observed by their Lordships of the Supreme Court that: "Even if the testimony of Mehnga, P.W.9, one of the recovery witnesses, is discarded, the evidence of Asghar Ali, S.1. P.W.11, is sufficient to prove the recoveries, because as held in a number of cases the testimony of a policeman cannot necessarily be disbelieved merely because he is a policeman."
25. In view of the above discussion, I am of the considered view that the prosecution has proved its case against the appellant beyond reasonable doubt and he has been rightly convicted. There are no reasons to interfere with the judgment of conviction passed by the learned trial Judge and the appeal is accordingly dismissed.