JUDGMENT ALLAH DINO G. MEMON, The appellant was charged under section 156(1 )(8) of Customs Act, 1969 and tried before the learned Special Judge (Customs & Taxation), Karachi, who has convicted and sentenced him to suffer R.I. For five years and to pay fine of Rs. 20,000, in default of payment of fine to suffer further R.I. For one month vide judgment dated 11th October, 1989.
2. The brief facts giving rise to the present appeal are that on 14th October, 1984 the accused presented his baggage for examination before the Customs Officer Muhammad Rashid Khan at 9.00 a.m. He had arrived from Saudi Arabia and his baggage consisted of among others, three tape-recorders and 5 transistor radios. The Customs Officer suspected the tape- recorders and transistor radios as the same were abnormally leavy and therefore, he asked the accused whether he had any contraband items on his person or in his baggage to which he replied in negative. The Customs Officer, took search of the above articles in presence of Mashirs Muhammad Faruq and Muhammad Yaseen and recovered 25 tolas of gold and 50 wrist watches from the tape-recorders and prepared such mashirnama. He also served the accused with a notice under section 171 of the Customs Act. After necessary investigation the applicant was sent up before the Court.
3. A formal charge was framed against the appellant to' which he pleaded not guilty.
4. At the trial prosecution examined complainant Muhammad Rashid Khan P.W. 1, he has produced mashirnama of recovery as Ex. 3-A, inventory of articles recovered from the appellant as Ex. 3-B, copy of notice under section 171 of the Customs Act, 1969 as Ex. 3-C, Passport and two tickets as Ex. 3/D-l to 3/D-3 and F.I.R, as Ex. 3-E. Mashir Muhammad Yaseen P.W. 2, Investigating Officer Muhammad Zahoorul Islam P.W. 3, he has produced certificate issued by goldsmith as Ex. 5-A and letters dated 6th November, 1984 and 20th November, 1984, as Ex. 5-C and Ex. 5-C, photostat copy of Passport Form as Ex. 5-D. 5.
After the close of the prosecution case, the statement of the appellant was recorded in which he denied the allegations. He examined himself on oath as envisaged by section 340(2), Cr. P.C.
However, he did not examine any witness in his defence.
6. The learned trial Judge after taking into consideration the evidence produced by the prosecution, and the statement of the appellant has convicted and sentenced the appellant as described above and the present appeal is directed against the above judgment of conviction.
7. I have heard Mr. Sohail Muzaffar learned counsel appearing for the appellant, Mr. Niaz Ahmad Khan learned counsel appearing for the State and have gone through the R & P of the case.
8. It was contended by Mr. Sohail Muzaffar, learned counsel appearing for the appellant that the Customs Officer did not ask the appellant to submit declaration as envisaged by section 139 of the Customs Act, and therefore, the appellant could not be convicted for smuggling.
9. Mr. Niaz Ahmed Khan, learned counsel appearing for the State has contended that it was the duty of the passenger to make declaration himself and on his failure he was liable to prosecution. He has further contended that in the present case, the appellant had failed to make any declaration in writing or otherwise and the prosecution has proved its case against the appellant beyond reasonable doubt and, therefore, the appellant was rightly convicted. In this connection he has relied upon 1980 P. Cr.LJ. 318 and 1985 SCMR1677.
10. I have considered the contentions and have gone through the evidence produced by the prosecution.
The complainant Muhammad Rashid Khan, Preventive Officer Customs, P.W.1 has fully supported the contents of his F.I.R.; Mashir Muhammad Yasin has supported the recovery in examination-in- chief and has also stated that the accused present in Court was the same but in cross- examination he has tried to favour the accused by stating that the accused was not present on the spot when he was called by Preventive Officer Muhammad Rashid Khan and the gold and wrist watches were recovered from the transistors, tape-recorders and brief case. He has further stated that the name of the accused was not disclosed to him by the Preventive Officer and the articles were lying on the Customs' counter. Be that as it may, the fact remains that the Mashir Muhammad Yasin has admitted that the transistors, tape-recorders and brief case were opened in his presence and gold and 50 wrist watches were recovered. He has further stated that the passenger to whom the radio recorders, transistors and brief case belonged is the accused, present in Court.
He has further stated that mashirnama was read over to him and Faruq and they had signed the same. The Preventive Officer had also recovered other documents from the accused. The evidence has not been challenged even by the learned counsel appearing for the appellant and, therefore, I am of the considered view that the prosecution has proved its case beyond reasonable doubt. 11.
As far as the legal objection raised by Mr. Sohail Muzaffar was concerned, in the case of: 1.
Muhammad Rafiq v. The State (1980 Pakistan Criminal Law Journal 318) Zafar Hussain Mirza, J, of this Court (as his Lordship then was) was pleased to observe that:-- "Section 139 creates an obligation upon every passenger or a member of a crew to make declaration of the contents of his baggage and to answer questions with respect to the baggage as well as its contents including articles carried with him. The failure to do the aforesaid things or the failure to produce the baggage or any such article for examination, is liable to penalties." In the case of Khadija Begum v.
The Government of Pakistan and others (1985 SCM R 1677); wherein the lady accused was wearing heavy ornaments on her person but did not declare them. On her personal search and search of her baggage the golden ornaments were found out which were confiscated in favour of the Government. She filed Constitutional Petition, on the plea that the ornaments were visible and no declaration was necessary but the plea was repelled and it was observed that:-- "It was necessary for her to make a declaration and on her failure the ornaments were rightly confiscated." She filed Petition for Leave to Appeal before the Hon'ble Supreme Court but the same was dismissed.
12. In view of the above factual and legal position I am of the considered view that the appellant was rightly convicted and the judgment of conviction passed by the learned Special Judge does not suffer from any infirmity, as such does not call for interference from this Court. The appeal is accordingly dismissed. However, I have given my anxious consideration to the question of sentence, looking to the fact that the gold smuggled was only 25 tolas and 50 watches, I reduce the fine from Rs. 20,000 to Rs. 2,000 and in default thereof, the appellant shall suffer further R.I. For two days. The appellant will be entitled to the benefit of section 382-B, Cr.P.C, in respect of the period, he has remained in custody as under trial prisoner as well as after his conviction.
13. The learned Special Judge to issue warrants of arrest against the appellant, so that he should undergo the remaining part of his sentences.
14. I had decided the above appeal by a short order dated 2nd December, 1990 and these are the reasons for the same.