ABDUL OADEER CHAUDHRY, J.---The point for consideration in these two appeals is when the.
Burden of proof shifts to the accused. Section .2(s) of the Customs Act has defined smuggling as follows: "Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon (i) gold bullion, silver bullion(ii)(iii)2 By Notification No.SRO 49(1)/85, dated 23-5-1985, Narcotic and psychotropic substances and arms and ammunition, have been added in the definition of "smuggling". There are three provisions in the Act which place burden of proof on the defence. These are sections (i)156(1)(89), (ii)156(2), and 187. These provisions are reproduced below:--
(i) Section 156(1)(89): If any person without lawful excuse the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods with respect to which there may be reasonable suspicion that they are smuggled goods."
(ii) Section 156(2): Where any goods specified in clause (s) of section 2 or in notification issued thereunder, are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized."
(iii) Section 187: When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit, licence or other document shall lie on him."
The burden of proof on a charge under section 156(1)(89) is restricted to the events mentioned in .This subsection. Though, in other two provisions burden of proof shifts to the accused but the scope of section 187 is much wider than section 156(2). According to section 156(2) the accused has to prove that the goods seized from him were not smuggled. But in order to attract the provisions of section 187 the accused must be facing trial on a criminal charge. According to these three provisions, burden of proof in all these cases shifts to .The accused. It is an elementary principle of jurisprudence that the burden is on the person who asserts the affirmative of any issue.
It is for the prosecution to prove the allegations against the accused and that onus is never shifted during the trial, but. a departure from the general rule has been made in these provisions.-The prosecution has to establish only that the goods are "seized under this Act in reasonable belief that they. Are. Smuggled". In order to draw a presumption under section 187, two ingredients must be proved, firstly, that there is reasonable belief that the goods are smuggled, and secondly, the goods have been seized from the accused. The burden that there was such reasonable belief is on the prosecution, but as Professor Brett has stated that all exactness is false or that it requires is the establishment of such a degree of probability that a prudent man may believe in the existence of the fact in issue. The sufficiency and the weight of the evidence is to be considered by the Court.
The attending circumstances may be kept in view, such as things are brought in a clandestine manner and the conduct of the accused. These things are sufficient to clothe the authority to raise a presumption against the accused that he was carrying the smuggled goods. Once the initial burden is discharged by the prosecution, the burden shifts to the accused and he has to rebut the prosecution evidence. He has to establish that he had not committed any such act as mentioned above. The justice delivery system involves a question of finding as to whether the offence is not committed. The accused has to prove that the goods are not of the category specified in 2(s). We may refer to Babulal Amthalal Mehta v. Collector of Customs, Calcutta and others AIR 1957 SC 877, Abdur Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others 1980 SCM R 114, Muhammad Rafiq v. The State 1980 PCr.LJ 318, Muhammad Iqbal v. The State 1983 PCr.LJ 1351, Muhammad Mahfooz v. Collector of Customs (Preventive), Customs House, Karachi and 2 others PLD 1986 Kar. 28, Oamar Ali v. The State 1975 PCr.LJ 797, Barkat Ali and another v. The State PLD 1973 Kar. 659, Taza Khan and another v. The State 1984 PCr.LJ 1308, Muhammad Yusuf v. Assistant Collector of Customs, Karachi and others PLD 1970 Kar. 97 and Azizullah v. The State PLD 1981 Kar.
250.
Criminal Appeal No.25-P of 1990
3. The facts of the case are that the Customs officials intercepted a truck on 16-1-1988 at 5-00 p.m.
And recovered 396 packets of Charas weighing 7920 kgs. Concealed under the bricks in the same truck. The goods were seized from the respondents and notices under section 171 of the Customs Act were served upon them. After usual investigation, the respondents were sent up to face the trial before the Special Judge Customs. They were convicted under section 156(1)(89) read with section 178 of the Customs Act and sentenced to two years' R.I. With a fine of Rs.3 lacs each and in default thereof, to undergo, further imprisonment of 1-1/2 years. The respondents challenged their convictions by way of appeal before the Peshawar High Court. The appeal was accepted and the accused respondents were acquitted of the charge.
4. The recovery from the truck has been established by the evidence produced by the prosecution.
According to the prosecution witnesses, the Charas was not of Pakistan origin. The respondents though denied the recovery of Charas, but admitted the possession of the vehicle. They had also admitted their thumb-impressions on the notices received under section 171 of the Customs Act.
The trial Court on the assessm ent of the evidence convicted the respondents. The High Court, however, took the view that the "essential ingredient of the offence under section 150(1)(89) of the Customs Act has not been proved. Under this section, it is mandatory for the prosecution to prove that the articles seized from the possession of the accused were smuggled goods". The High Court further observed that it was unable to hold that the Charas and heroin allegedly recovered from the truck were not of Pakistan origin. But under the notification dated 23-5-1985 such goods have been declared as "smuggled". .
5. The learned High Court has erred in shifting the entire burden on the prosecution. The prosecution has discharged its initial burden but the accused failed to rebut the same. No adverse inference can be drawn against the prosecution in the facts and circumstances of the case. The trial Court has properly appreciated the evidence. We, therefore, accept this appeal, set aside the order of the High Court and maintain that of the trial Court. The respondents shall surrender to serve the remaining sentence.
6. The respondents were not present at the time of hearing though repeated notices were sent to them. The intimation of this judgment be communicated to the respondents and they will be at liberty to move this Court for review of the judgment, if they so choose.
Criminal Appeal No.12-P of 1990
7. The facts of the case are that the respondent, Umar Hayat, was apprehended and he was found in possession of 1300 grams of heroin and one Russian shotgun. He was tried by the Special Judge Customs, who acquitted him. The appeal against the order of the Special Judge was dismissed by the High Court.
8. The respondent was carrying one brief case and attache box in the bus when the customs party checked the bus. It was held-by the two Courts that 1300 grams of heroin allegedly recovered from the respondent was not proved to be of foreign origin. Similarly about the shotgun it was held that mere writing on the gun that it was made in Russia, was not by itself sufficient because judicial notice could be taken of the. Fact that such like makes are inscribed on various types of weapons in the tribal areas for capturing the market.
9. The learned counsel for the appellant submitted that the prosecution has discharged its initial burden and it was for the accused to have rebutted the same, but the accused has miserably failed to contradict the allegations made by the prosecution. It has been established that heroin was recovered from the possession of the respondent which is a contraband article. The prosecution has discharged its burden. It is not at all necessary for the prosecution to have proved that it was of foreign origin because the definition of smuggling covers this article as notified in the aforesaid notification. The respondent has failed to discharge his burden. It was for the defence to have produced evidence, to rebut the prosecution case. We, therefore, set aside the orders of the two Courts in respect of heroin and remand the case to the trial Court for a decision after giving an opportunity to the accused.
10. As regards the shotgun a judicial notice has been taken by the two Courts in favour of the accused and there is nothing on record to dislodge this judicial presumption. The prosecution has not disputed this fact that such shotguns are manufactured in the tribal areas. We, therefore, maintain the order of the two Courts in respect of the shotgun.
11. The appeals are disposed of in the above terms.