Appellant Rifaqat Ali was tried by Special Judge (Customs and Taxation) Karachi, for the offence under section 156(1)(8) of the Customs Act, 1969, who found him guilty and vide judgment, dated 3- 12-PNI sentenced him to suffer R.I. For five years and to pay a fine of Rs.1,00,000 (Rs. One lac) or in default to suffer R.I. For six months. The benefit of section 382-B, Cr.P.C. Was, however, extended to him. By this appeal filed under section 185-F of the Customs Act, 1969, the appellant has challenged his conviction and sentence.
2. On 23-11-1990 Muhammad Aslam Awan, Senior Preventive Officer, Pakistan Customs, Karachi, received secret information that one passenger, namely, Rifaqat Ali, the present appellant, who was scheduled to arrive from Dubai by Lufthansa Flight No.LH-634 would attempt to smuggle a huge quantity of gold. Consequently a strict watch was maintained and at 4-30 a.m. The appellant was intercepted in Customs Examination Hall, Terminal No.1, Karachi Airport, who was asked to declare if he was carrying contraband gold in his baggage to which-he replied in negative. Being dissatisfied from his reply Muhammad Aslam Awan S.P.O. Examined the baggage of the appellant, but nothing objectionable was found. Before taking the personal search of the appellant he was informed about his right to be taken to a gazetted officer of Customs or Magistrate, but he declined to avail of this opportunity. The personal search of the appellant was taken in presence of Mashirs Ashraf Manda and Manzoor Murad and 5W Tolas of gold valued at Rs.17,50,000 wrapped with plastic tape; around his shins was recovered. Besides the above Mashirs Mr. Ali Sher Behan, Assistant Collector of Customs was also present at that time. Such inventory, was prepared on the spot and a notice under section 171 of the Customs Act, 1W9, was served upon the appellant. The appellant was taken into custody and a formal F.I.R. Was registered against him. After usual investigation the appellant was sent up to stand his trial.
3. Charge under section 156(1)(8) of the Customs Act, 1909, was framed against the appellant and he was asked if he wants to plead guilty or has any defence to make. The appellant pleaded not guilty and claimed a trial. At the trial the prosecution examined Muhammad Aslam Awan, S.P.O.
(P.W.1), Ashraf Manda (P.W.2), Manzoor Murad (P.W.3), Mr. Ali Sher Behan, Assistant Collector, Customs (P.W.4), Kanwar Khali Ali I.O. (P.W.5), and Muhammad Irfan Tahir (P.W.G).
4. The appellant admitted his arrest, recovery of travel documents and service of notice under section 171 of the Customs Act, 1969, upon him, but disputed the recovery of gold from hi, possession. He slid not step into the witness-box and also led no defence.
5. On the assessm ent of evidence available on record the learned Special lodge found the appellant guilty and convicted him accordingly.
6. I have heard Mr. Khawaja Adeel Ahmed, learned counsel for the appellant and Mr. Shamshad Alam Lari, learned counsel for the State. The latter has supported the impugned judgment.
7. The fact that the appellant was arrested on 23-11-1990 at 4-30 a.m. At Karachi Airport is not in dispute. Tic has also not denied the recovery of travel documents (Exh.3/B) and (Exh.3/C) from his possession. The service of notice under section 171 of the Customs Act, 1969, (Exh.3/D) is also not disputed by the appellant, who has simply denied the recovery of 50 slabs of gold, weighing 500 Tola from his possession. Muhammad Aslam Awan S.P.O. (P.W.1) and Ali Sher Behan A.C. (P.W.4) have, however, testified that these golden slabs were recovered from the possession (if the appellant who had wrapped them in plastic tapes around his shin. Nothing is brought out in cross- examination to shake the credence of these witnesses. The gold was valued at Rs.17.50,000 and it is beyond imagination that such a valuable property was foisted upon the appellant. Cases do arise no doubt, when false additions arc made but the implication of a person who is innocent in place of who is guilty is a very rare thing.
8. The main argument addressed to this Court was to the effect that no opportunity was provided to the appellant to be taken before a gazetted officer of customs or a Magistrate in terms of section 159 of the Customs Act, 1969, which rendered the alleged recovery illegal. The answer to t- his objection is provided by Muhammad Aslam Awan S.P.O. (P.W.1), who has testified as follows:-- "An opportunity was given to accused to be searched in presence of a gazetted officer or a Magistrate and the accused did not avail that opportunity."
9. The F.I.R. (Exh.3/E) which was lodged with great promptitude also shows that an opportunity in terms of section 159 of the Customs Act, 1969, was provided to appellant who did not avail of the same.
10. Mr. Khawaja Adeel Ahmad, learned counsel for the appellant realising the above situation has contended with force that such information is to be conveyed to the person to be searched in writing. To appreciate this argument it is necessary to rend section 159 of the Customs Act, 1969, which provides as follows:- "Persons to be searched may desire to be taken before gazetted officer of Customs or Magistrate.
(1) When any officer of Customs is about to search any person under the provisions of section 158, the officer of Customs shall inform such person about his right to be taken to a gazetted officer of Customs or Magistrate, and if such person so desires, take him without unnecessary delay to the nearest gazetted officer of Customs or Magistrate before searching him, and may detain him until he can be so taken.
(2) The gazetted officer of Customs or the Magistrate before whom such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person and record reasons for doing so, or else direct search to be made.
(3) Before making a search under section 158, the officer of Customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do, and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.
(4) A female shall not be searched except by a female."
11. It is thus apparent that order in writing in terms of subsection (3) of section 159 of the Customs Act, 1969, is to be issued to the witnesses required to attend the search and not to be person who is going to be searched.
12. The perusal of the record, however, shows that the search of the appellant was taken in presence of Mr. Ali Sher Behan, Assistant Collector who is a gazetted officer of Customs. Mr. Ali Sher Behan (P.W.4) has testified to this effect and the only fact that his statement was not recorded during the course of investigation is not by itself sufficient to discredit his testimony. Likewise the evidence of this responsible officer of Customs cannot be brushed aside only because his name was included in F.I.R. Afterwards. A cursory glance at the F.I.R. (Exh.3/E) is enough to show that the name of Mr. Ali Sher Behan was written in handwriting after the contents thereof were typed. This addition is not necessarily an act of forgery. Mr. Ali Sher Behan, Assistant Collector, Customs (P.W.4) has supported the contents of this document and, therefore, any overwriting on (Exh.3/E) is not going to detract its value.
13. Much capital was sought to be made out from the fact that the personal search of the appellant was taken in the office of Shahabuddin, Superintendent, Preventive Services, although the place of search as per the Mashirnama (Exh.3/A) is the Custom Examination Hall. It may be noted that the golden slabs were recovered tied with shins. Obviously, therefore, the appellant must have undressed himself at the time of search and for that privacy was necessary. Even otherwise it is no body's case that the office of the Superintendent, Preventive was outside the Customs Examination Hall.
14. In the last a feeble attempt was made to show that since both the Mashirs, namely, Ashraf Manda (P.W.3), and Manzoor Murad (P.W.3) had not supported the case of the prosecution, it was highly risky to rely upon the testimony of two Customs officers. The evidence in support of a charge is to be judged, not by the number of witnesses but by its inherent worth. Both Muhammad Aslam Awan S.P.O. (P.W.1) and Mr. Ali Sher Behan. A.C. (P.W.4) had absolutely no reason to depose falsely against the appellant, who was a total stranger to them. The evidence of both these witnesses is consistent, and the learned Special Judge was impressed by their demeanour.
15. Taking all the surrounding circumstances and probabilities into consideration, I am of the view that the appellant was rightly convicted and sentenced. The appeal has got no merits and is accordingly dismissed.
N.H.Q./R-215/K