' Appellant Mehboob Ali was tried alongwith Dilshad Muhammad and S.M. Ilyas by Special Judge (Customs & Taxation) Karachi, for the offence under section 156(1)(8) read with section 178 of the Customs Act, 1969, who found Dilshad Muhammad and S.M. Ilyas not guilty and acquitted them, but found the appellant guilty for the said offence and sentenced him to suffer R.I. For five years and to pay a fine of Rs,2,00,000 (Two lacs) or in default to suffer R.I. For a further period of one year.
The benefit of section 382-B, Cr.P.C. Was, however, extended to him. This judgment dated 14-5-1991 is the subject-matter of the present appeal filed under section 185- F of the Customs Act, 1969.
2. The case of thc prosecution, in brief, is that on 8-2-1989, Pervaiz Ahmed Bajwa, Senior Preventive Officer (SPO), Pakistan Customs, Karachi, received a credible information that gold in huge quantity had arrived from Dubai by P.I.A. Flight No,PK-224, which was removed to P.I.A. Engineering Hanger in P.I.A. Suzuki Van No,1210, driven by appellant, who at that time was working as cleaner in P.I.A.
Engineering Department. Acting on this information Pervaiz Ahmed Bajwa, SPO, raided the P.I.A.
Engineering Hanger under the supervision of Khursheed Qamar, Inspector and intercepted the appellant who was present there. On interrogation the appellant led the Seizing Officers and mashirs Fida Hussain and Mawaz Khan to the toilet of the Hanger and pointed out two leather pouches which contained golden slabs. For security reasons the seized gold was brought to Terminal II, Karachi Airport. The thorough search of pouches led to the recovery of 240 slabs of foreign origin gold, weighing 2,400 tolas, valued at Rs,78,24,000 (Rs, Seventy-eight lacs, twenty-four thousand). Such inventory was prepared on the spot. The preliminary investigation revealed that co-accused Dilshad Muhammad and S.M. Ilyas (since acquitted) both employees of P.I.A. Had conspired with the appellant to smuggle gold. On the same day at 7-00 p.m. After two hours of the incident the report of this case was lodged. After usual investigation all the three accused were challaned.
3. At the trial the prosecution examined Pervaiz Ahmad Bajwa, S.P.O. (P.W.-1), Mawaz Khan (P.W.-2)
Fida Hussain (P.W.3), Khursheed Qamar, Inspector (P.W.4), Syed Asad Ali (P.W.5), Hafeez Ahmed (P.W.6), Muhammad Ilyas (P.W.7), Syed Mahfooz-ul-Hasan (P.W.8), Abdul Razak Tahir (P.W.9) and Nasir Alam I.O. (P.W.10).
4. The appellant met the charge with a denial by professing innocence. He did not examine himself on oath. No evidence in defence was also led.
5. On the assessm ent of evidence available on record, the learned Special Judge found the appellant guilty for the offence with which he was charged and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. Suleman Habibullah, learned counsel for the appellant and Mr. Nazir Alam, learned counsel for the State. The latter has not supported the impugned judgment.
7. Pervaiz Ahmed Bajwa SPO (P.W.1), who is the main witness of the prosecution has testified the facts leading to the arrest of appellant and recovery of 2,400 tolas of foreign gold at his pointation in presence of mashirs Fida Hussain and Mawaz Khan. The evidence of this witness further makes it clear that Khursheed Qamar, Inspector Customs was present when the said recovery was made.
He had prepared the Mashirnamas of recovery which are on record (Exhs.3/A and 3/B). The witness was subjected to a searching cross-examination. Some questions were asked conveying innuendo but it brings out nothing substantial to shake his testimony. Much capital was sought to be made out from the fact that the name of Khurshccd Qamar, Inspector was not disclosed in F.I.R. (Ex.3/D) meaning thereby that he was set up at a subsequent stage to lend support to the case of the prosecution. The seizure report dated 8-2-1989 (Ex.12/A) submitted by Khursheed Qamar, Inspector (P.W.4) is self-explanatory. It may be noted that the F.I.R. Is never per se a statement of the case for the prosecution, and the absence of the name of any witness is not fatal to the case of the prosecution. I consider that if the evidence of Khursheed Qamar, Inspector (P.W.4) is left out of account there is ample evidence which will support the prosecution.
8. Mawaz Khan (P.W.2), who was security guard at Bay No,6 has testified that he was on duty when Flight No,PK-224 arrived at 3-40 p.m. The evidence of Mawaz Khan (P.W.2), which fully connects the appellant reads as follows:- "I know accused Mehboob Ali. He is present in Court. He had come to me at that time and started talking. While I was busy in some work, accused Mehboob without permission entered the hold of aircraft. After about 10 minutes I saw Mehboob coming back from hold of the aircraft. I intercepted him and asked him as to why he had gone in the hold of the aircraft without my permission. The accused did not give me any reply and remained silent. Thereafter I asked him to give me his personal search. From personal search of accused Mehboob, I secured four packets. I did not know that what those packets contained. Those packets were concealed by accused in his Dangri. When I asked accused Mehboob Ali as to what was in those packets, he replied that it was gold. He offered me that I could take two out of those four packets. I turned down his offer. I asked the accused to sit near me. In connection with work I had gone for few minutes to a loader who was about 5/6 yards away from me. Meanwhile a Suzuki van of an engineer had arrived there and accused Mehboob Ali sat down in the said van. The Engineer, who had brought said van had left the van there and went away. Accused ' Mehboob after driving said van ran away and took away those packets of gold"
9. Except the recovery of gold at the instance of appellant in his presence, Mawaz Khan (P.W.2) has fully implicated the appellant. Fida Hussain (P.W.3) who was co-Mashir while disowning the contents of the Mashirnamas has deposed as under:- "Thereafter, I, Mawaz Khan, duty officer Shamshad and Customs Officers had gone to P.IA.
Engineering Hanger. When I and loaders had reached P.I.A. Hanger, we saw that the Customs Officers were coming back from P.I.A. Hanger. I had seen some packets in the hands of Customs Officers. The people who had gathered there were saying that those packets contained gold.... ... ..."
10. Both these witnesses were declared hostile and were cross-examined by ) the prosecutor. A hostile witness who is permitted to be cross-examined does not necessarily lose his credibility. His evidence can be relied upon by either party and the Court can come to its own conclusion after a consideration of whole of his evidence. In fact what I smell from the record is that there was a tussle between the Security Staff and the Customs Officials, each of them wanted to get credit of this huge recovery and to earn reward for the same. This fact was also noticed by learned Special Judge who disposed of the same in the following words:- "Learned counsel for accused also argued that both the Mashirs of recovery, namely, Mawaz Khan and Fida Hussain were declared hostile and this fact, according to learned counsel, is sufficient to conclude that the case against the accused is false. This contention is also without any force.
Mawaz Khan Mashir, in fact, has implicated the accused. He tried to take exclusively the entire credit of seizure probably for cash reward. He, however, clearly admitted that Mashirnama bears his signature. From his evidence innocence of accused is not established. Likewise, the evidence of Fida Hussain mashir does not demolish the case of prosecution. He has also admitted signatures on the Mashirnama."
11. Syed Asad Ali (P.W.5) is another important witness who has implicated the appellant. He was working as Engineer in P.I.A. When on the relevant day at 3-45 p.m. He had gone to air bus to remove some fault. He left his Suzuki van in front of the aircraft, but as soon as he left it there the appellant who was working as cleaner in Engineering Department took away the van without his permission. Admittedly Syed Asad Ali (P.W.5) was detained in this case as suspect but he was found innocent and was left off. There is nothing unusual in his conduct. As I look into his evidence, I can see no reason for not accepting his version.
12. The appellant who was afforded an opportunity to disprove the charge I under section 340(2), Cr.P.C. Did not step into the witness-box and in view of the rule laid down by the Federal Shariat Court in cases reported as Khalid Iqbal v. The State (1991 P Cr.LJ 443), Javed and another v. The State (1991 PCr.LJ 843), adverse inference is to be drawn against him.
13. On the evidence before me, which I consider to be reliable in its nature, there is hardly any force in the contention of learned counsel for appellant when he states that the case against the appellant is doubtful. In the elegant words of Lord Coleridge expressed in Rex v. Dickson (a case cited in Will's Circumstantial Evidence), that-- "The law does not demand that you should act upon certainties alone In our lives, in our acts, in our thoughts, we do not deal with certainties. We ought to act upon just and reasonable convictions founded upon just and reasonable grounds."
14. In view of what I have stated above, the appeal has got no merits and is accordingly dismissed.