' 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. On receipt of a secret information that a huge quantity of silver of foreign origin was being smuggled into Pakistan through launch 'Al Macca' from Al-Fajira Dubai, a patolling party was sent in Pakistan Coast Guards gunboat SAAD for strict surveillance in sea under the command of Lieut.- Commander Muhammad Iqbal. On 17-1-1990 at_about 8-00 p.m. The launch was spotted near Dabbo Creak at a distance of 30 miles from Karachi. The launch was signalled to stop but the Nakhuda accelerated its speed. It was, however, chased and was forced to stop at 8-30 p.m. A notice under section 163 of the Customs Act, 1969, was served upon appellant Ishaque, the Nakhuda of the launch (Appeal No,1 of 1991) and then the search of the launch was carried out in presence of all the appellants, who are Nakhuda and members of the crew, which resulted into the recovery of 5,463 Kgs. Of silver of foreign origin valued at Rs,3,01,63,075. The launch valued at Rs,20,00,000 was also seized and such inventory was prepared in presence of mashirs Subedar Muhammad Ralique and Naib-Subedar Chiragh Din. The notices under section 171 of the Customs Act, 1969, were also served upon the appellants. On return to H.Q. Marine Company, Pakistan Coast Guards, Lieut-Commander, Muhammad Iqbal lodged F.I.R. After completing the investigation the appellants were sent up to stand trial for the said offence in the Court of Special Judge (Customs and Taxation) Karachi. Accused Seth Faiz Muhammad, Seth Muhammad Yousuf, and Seth Muhammad Haneef, who could not be arrested were challaned in absentia.
3. The appellants pleaded not guilty and claimed a trial. At the trial the prosecution has examined Lieut.-Commander Muhammad Iqbal (P.W.1), Subedar Muhammad Rafique (P.W.2), Major Muhammad Akram (P.W.3), and Muhammad Aslam (P.W.4).
4. The appellants met the charge with a bare denial. They did not examine themselves on oath.
They also led no defence.
5. On the assessm ent of evidence available on record, the learned Special Judge found the appellants guilty for the offence under section 156(1)(8), read with section 178 of the Customs Act, 1969, and sentenced each of them to suffer R.I. For five years and to pay a fine of Rs,3,00,000 or in default to suffer R.I. For one year. Appellants Qasim, Abdullah, Dost Muhammad, Muhammad Ibrahim, Mamoon, Muhammad Siddique, Muhammad Ismail and Abdul Kalam who are members of the crew have challenged their conviction and sentence through Special Criminal Appeal No,16 of 1990, while appellant Ishaque who was Nakhuda of the launch has filed separate appeal, being Special Criminal Appeal No,1 of 1991.
6. I have heard Mr. Azhar Ali Siddiqui, learned counsel for the appellants and Mr. S. Ashique Ali Zaidi, learned counsel for the State. The )atter has supported the impugned judgment.
7. There is overwhelming evidence on record to prove that silver of foreign origin weighing 5,463 Kgs. Was recovered from the cold room of the launch 'Al Macca' in presence of the appellants who were the members of crew. Besides complainant Lieut.-Commander Muhammad Iqbal (P.W.1), there is evidence of Subedar Muhammad Rafique (P.W.2), which has practically gone unchallenged and except one question put by appellant Ishaque (Appeal No,1 of 1991), to Lieut.- Commander Muhammad Iqbal (P.W.1), no question was put by the appellants to any other witness.
The appellants have, therefore, accepted the evidence given against them. If any authority is needed the case of Qasim and others v. The State, reported in PLD 1967 Karachi 233, may be cited with advantage, wherein it was observed:- "It is a settled position of law that if some fact is deposed to in examination-in-chief which is not questioned in cross-examination the presumption is that that part of evidence is deemed to have been accepted by the party against whom that evidence has been given."
8. Faced with this situation, the learned counsel for the appellants has not seriously assailed the above evidence, but has confined his arguments to the search, which according to thim was conducted in violation of the relevant provision of law. Section 163 of the Customs Act, 1969, which deals with powers to search and arrest without warrant provides as follows:-- "163. Power to search and arrest without warrant.--(1) Whenever any officer of customs not below the rank of an Assistant Collector of Customs or any other officer of like rank duly employed for the prevention of smuggling has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under section 162, he may, after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search is to be made, search or cause search to be made for such goods, documents or things in that place.
(1) Any officer or person who makes a search or causes a search to be made under sebsection (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address.
(3) All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898.
(4) Notwithstanding anything contained in the foregoing subsections and subject to previous authorization by an officer of Customs not below the rank of an Assistant Collector of Customs, any officer of Customs or any person duly empowered as such may, with respect to an offence related to exportation of such goods as the Federal Government may, by notification in the official Gazette, specify in this behalf--
(a) arrest without warrant any person concerned in such offence or against whom reasonable suspicion exists that he is about to be concerned in such offence;
(b) enter and search without warrant any premises to make an arrest under clause (a),, or to seize any goods which are reasonably suspected to be intended for exportation contrary to any prohibition or restriction for the time being in force, and all documents or things in which his opinion will be useful for or relevant to any proceedings under this Act; and
(c) for the purpose of arresting, detaining or taking into custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.
(5) The provisions of subsection (4) shall apply only to the areas within five miles of the land frontier of Pakistan, and within a five miles belt running along the sea-coast of Pakistan.
(6) No suit, prosecution or other legal proceedings shall be instituted except with the previous sanction in writing of the Federal Government, against any person in respect Of anything done or purporting to be done in exercise of the powers conferred by subsection (1) or subsection (2) or, in the areas specified in subsection (5), by subsection (4)."
9. A bare perusal of this section makes it clear that the powers so conferred upon the officers are to be exercised only when there is danger that the goods might be removed before a search-warrant could be obtained. In the present case the seizing officer had a secret information that silver of foreign origin is likely to be smuggled into Pakistan in launch 'Al Macca'. The circumstances attending to this case clearly indicate that a timely action was necessary to seize the launch and search it without obtaining a search-warrant.It was, therefore, a fit case to exercise powers under sections 163 and 164 of the Customs Act, 1969. The facts of the cases reported as S.M.Yousuf and others v. Collector of Customs and others PLD 1968 Kar. 599, Shaukat Hussain v. Zulfiqar Ahmad and 2 others PLD 1981 Lah. 13 and Muhammad Mahfooz v. Collector of Customs (Preventive)
Customs House, Karachi and 2 others PLD 1986 Kar. 28, which are cited on behalf of appellants are, therefore, clearly distinguishable.
9. Mr. Azhar Ali Siddiqui, learned counsel for the appellants has laid much emphasis upon the provisions of subsection (5) of section 163 of the Customs Act, 1969, reproduced above, in an attempt to show that the search of the launch 'Al Macca' beyond the area of five miles from sea- coast of Pakistan was illegal and consequently the prosecution of the appellants had no legal sanctity. He has, however, lost sight of the fact that this subsection controls the provisions of subsection (4) of section 163 of the Customs Act, 1969, which are not attracted to the facts of the present case.
10. The territorial jurisdiction of the Court of Special Judge (Customs and Taxation), Karachi, is also questioned, but there is nothing on record to lend support to this contention.
11. Lastly it was half-heartedly suggested that the sentence awarded to appellants was severe and oppressive. The learned Special Judge has, however, met this question in the following words:- "The Federal Government, as per notification dated 12-2-1983 listed the silver, as goods essential to the life of the community for the purpose of section 156(1)(8) of the Customs Act, 1969. Clause (8) provides that in case of goods essential to the life of community the sentence of imprisonment shall not be less than five years."
12. Section 178 of the Customs Act, 1969, does not provide any separate punishment and it is only an enabling provision of law making such persons found together and having knowledge of possession of the goods liable to confiscation, guilty of an offence punishable in accordance with the provisions of this Act, as if the goods were found on such persons.
13. On all the above score the appeals have got no merits and are dismissed accordingly. The appellants who are in custody be informed through the concerned Superintendent of Prison.