' The appellant Qazi Manzoor Hussain son of Ghulam Rabbani was tried by the learned Special Judge (Customs and Taxation), Karachi who by his judgment, dated 25-2-1992 convicted the appellant under section 156(1)(8) of the Customs Act, 1969 and sentenced him to suffer R.I. For four years and fine of Rs,2,00,000 or in default to undergo R.I. For one year more. The appellant has now challenged his said conviction and sentence under this appeal.
2. The prosecution case is that on 23-6-1987 at about 9-30 a.m. The complainant who had received spy information that the appellant, who was engaged in smuggling of Pakistani and foreign currency, will make an attempt to smuggle Pakistani currency to Dubai on the said date.
The complainant was maintaining surveillance and on the date of incident he saw the appellant coming in a Toyota Corrolla car which he parked in the parking area of Terminal No,III, the accused took out a suit case and proceeded to Terminal No,III, he thereafter completed all formalities and was intercepted in the International Departure Lounge. The accused was asked to declare whether he was carrying any currency in his baggage or on his person to which he replied in negative.
Thereafter his baggage was examined in the presence of two independent witnesses namely Abdul Ghani Baloch and Rana Ahsanullah which resulted in the recovery of Pak. Currency of Rs,10,00,000. Accordingly the currency was seized, the car in question was impounded. A notice under section 171 of the Customs Act was served upon the accused and thereafter the complainant A.H. Farooqui (P.W.1) lodged the F.I.R. The investigation was conducted by P.W.4 Allah Wasayo Zubair who after completing the same challaned the accused in the Court.
3. The charge against the accused was framed for having committed an offence punishable under section 156(1)(8) of the Customs Act, 1969 to which the accused did not plead guilty and claimed to be tried.
4. At the trial the prosecution examined P.W.1 Abdul Haq Farooqui, complainant/seizing officer, P.W.2 Rana Ahsanullah, who is Mashir of recovery, P.W.3 Fozia Younus, Custom Officer and P.W.4 Allah Wasayo Zubair who is the Investigating Officer.
5. After the examination of these witnesses the statement of the accused was recorded under section 342, Cr.P.C. (Exh.7) in which the accused denied all the allegations. However, the accused wished to examine himself on oath and also wished to examine defence witnesses. Accordingly vide Exh.9 the accused was examined on oath under section 340(2), Cr.P.C. In his statement the accused has given a detailed explanation and has explained that the an aunt of Rs,10;00,000 was recovered by the Customs Officer P.W.1 from his louse from where the Customs Officer had also taken his car. And thereafter le was involved in this case. The accused has also produced an affidavit of one Dr. Shahid All Khan as Exh.9/A, the certificate issued by P.IA. As Exh.9/B. The defence witness examined by the accused is D.W.2 Muhammad Hameed. He was actually prosecution witness who has been examined by the defence. D.W.3 is Doctor Shahid Ali Khan. After the conclusion of the case the appellant was convicted and sentenced as already mentioned hereinabove.
6. I have heard Mr. Mir Nawaz Khan Marwat, Advocate for the appellant and Mr. Niaz Ahmed Khan, Advocate for DA.-G. For the State. The latter has supported the conviction and sentence of the appellant.
7. The learned counsel for the appellant has argued that the time of occurrence as given in the F.I.R.
Is 23-6-1987 at 9-50 p.m. While the place of occurrence is International Departure Lounge. He has submitted that the entire case is a managed affair and there are strong circumstances to support his case. In this regard he has submitted that the departure of the Flight PK223 of P.IA was to take place on 23-6-1987 at 8-30 p.m. As such there was no reason for the appellant to comply all formalities at 9-50 p.m. He has then referred to a very important circumstance and i,e. The accused is said to have been intercepted at International Departure Lounge. The outgoing passenger reaches the International Departure Lounge after submitting his luggage at the airlines counter from where boarding card is issued to him, and, on the strength of boarding card, the passenger then awaits boarding at the International Departure Lounge. In other words the learned counsel has tried to explain that after having handed over his luggage then only the appellant could proceed to the Departure Lounge, as such, while sitting in the Departure Lounge the appellant obviously is without his luggage but yet the Seizing Officer/P.W.1 claims to have checked his baggage in the Departure Lounge and this obviously was not possible. The learned counsel also submits that if the appellant was really intercepted in the Departure Lounge then the boarding card should have been seized but the Mashirnama Exh.3/A does not indicate seizure of the boarding card. In fact a duplicate boarding card has been obtained to strengthen the prosecution case. He refers to Exh.3-C/1 and to the cross-examination of P.W.4, in the last line of which the Investigating Officer admits that the said Exh.3-C/1 is a duplicate boarding card. The learned counsel further submitted that while manufacturing and giving details I.O. Lost sight of the fact that the date and time of occurrence as well as the date and time of preparation of Mashirnama is the same which was not possible. The learned counsel further submitted that keys of the said car were not produced in Court, declaration under section 139 of the Customs Act was never obtained from the appellant and section 159 of the Customs Act which is mandatory provision was also violated.
He has finally submitted that the burden of proving the prosecution case rests very heavily on the prosecution while the accused is only required to give a plausible explanation. Learned counsel submits that the accused in his statement on oath has given a plausible explanation and therefore, he is entitled for an acquittal.
8. On the other hand Mr. Niaz Ahmed Khan, learned counsel for the State has argued that Court should take into consideration the prevailing condition of the society, that the smuggling is a menacing business and should be dealt with a heavy hand. He further submits that the seizure of Rs,10,00,000 has been admitted by the accused in his statement and apart from some obliging statements and minor contradictions the charge stands proved against the appellant who has been rightly convicted by the trial Court.
9. I have given my anxious thought to the arguments advanced by the parties and I have gone through the entire evidence on record with the assistance of the learned counsel. I shall now refer to the evidence which has come on the record.
10. P.W.1 is the Customs Officer Abdul Haq Farooqui who is complainant as well as the Seizing Officer. His deposition appears as Exh.3. He has stated that on 23-6-1987 he was performing his duty when he received an information that the appellant was going to smuggle currency out of Pakistan and that he will come in a Toyota Corolla Car bearing No,217-248. He was keeping surveillance at the car parking area of Terminal No,III, Karachi Airport when he spotted the said car being driven by the appellant. The accused then entered Terminal No,III and after having completed all formalities he was intercepted and was asked to declare if he was having any currency in his possession, to which the accused replied in negative. Thereafter two Mashirs namely Rana Ahsanullah and Abdul Ghani Baloch were called, in whose presence the suit-case of the accused was searched which resulted in the recovery of Rs,10,00,000. He seized the currency, passport, ticket, boarding card, claim tag and baggage tag. He then prepared Mashirnama which he has produced as Exh.3/A. He also impounded the car in which the accused had arrived at the airport. He then issued notice to the accused under section 171 of the Customs Act and thereafter he 'lodged the F.I.R. Which he produced as Exh.3/F. In his cross-examination he admits that he has not given the Flight number in the F.I.R. He further states that no Gazetted Officer of Customs was present at the Airport. Further states that the accused did not request him that he wanted to be searched before a Gazetted Officer. He does not remember that Flight PK-223 was to depart at 20- 30 hours. He admits that time of preparation of Mashirnama Exh.3/A and the time of occurrence in the F.I.R. Is 9-50 p.m.
11. P.W.2 is Rana Ahsanullah, he is the Mashir of recovery. His deposition is Exh.4. He states that on 23-6-1987 he was called by the Customs Officer at 8-00 p.m., he states that Preventive Officer Fauzia Sarwar had asked Abdul Ghani Baloch to provide boarding card to the accused. He states that the boarding card was given to the accused and the suit-case was tagged. In his presence the Customs Officer secured Rs,10,00,000 from the suit-case of the accused. The Customs Officer prepared Mashirnama which is Exh.3/A which bears his signatures. He does not remember if the car of the accused was taken in possession. In his cross-examination he admits that the Customs Officer searched the suit-case of the accused in the Customs Room, he denies that a duplicate boarding card has been obtained by the Customs Officer, he admits that he went alongwith Customs Officer to the Customs Room. He denied that the Customs Officer called him at 9-50 p.m.
For signing the Mashimama Exh.3/A.
12. The next witness is P.W.3 Fozia Younis. She states that accused was known to her as he is her family friend. She states that accused had told her that he was going to Dubai and that he wanted her help. On that day accused came at about 8-00 p.m., she asked the P.IA. Staff to expedite the briefmg of the accused. Thereafter she went to her office. After some time she came to know that the accused had been arrested and Rs,10,00,000 have been secured from the suit-case of the accused. In her cross-examination she states that accused had got security screening of his suit- case, she admits that by screening the contents of the suit-case are visible.
13. The last witness examined is P.W.4 Allah Wasayo Zubair, who is the Investigating Officer. He states that on 27-6-1987 he received the case papers and on 28-6-1987 he recorded statement of all the witnesses as well as P.Ws. Qayyum Bhatti, Ishrat Asif and Muhammad Hameed. On completion of investigation he submitted a challan in the Court. In his cross-examination he states that the F.I.R. And Mashirnama do not indicate that the currency was sealed. He also admits that the F.I.R. And Mashiranam do not mention about car parking receipt. He admits that the Seizing Officer had not issued any letter to the P.IA. Authorities for segregating the suit-case of the accused from other suit-cases. He admits that many Gazetted Officers remain on duty at Karachi Airport. He also admits that P.W.1. A.H. Farooqui who is the Seizing Officer has not stated before me that he had informed the accused that he could have the benefit of presence of a First Class Magistrate or a Gazetted Officer of Customs. He admits that Exh.3-C/1 is a duplicate boarding card.
14. The accused has examined himself on oath as D.W.1. His deposition appears at Exh.9. He states that on 23-6-1987 he was going to Dubai by P.IA. Flight No,PK-223 and he had a confirmed seat. He reached the airport at 7-45 p.m. By a taxi as his house is about a mile away from the Airport. On reaching the Airport he got his baggage examined on the screening machine and as it contained marble pieces the A.S.F. Staff checked his suit-case. He states that when he was proceeding towards P.IA. Counter a Customs Officer stopped him and asked him to open the suit-case on which he informed him that it was nearly 8-30 and if he delayed he will miss the flight. On this there was quarrel and he asked the Customs Officer to show him identity car which annoyed the Customs Officer whose name he later on came to know as A.H. Farooqui. He states that thereafter the Cusoms Officer called four Sepoys who forcibly took him to a room. He states that he told the Customs Officer to call some superior Officer for checking his baggage but that was not done and the Customs Officer checked his baggage. In the meantime he missed the flight. Thereafter the Customs Officer had asked him as to who had taken away Rs,10,00,000 abroad, on which he informed him that his information was incorrect but as he was in the business of cars he had received a payment of Rs,10,00,000 and the amount was available at his residence. Thereafter the Customs Officer took him to his residence in a jeep. At that time Col. Shahid who is a doctor was available at the resident of the accused who had come to see his wife as she was under his treatment. He then showed the said amount to the Customs Officer who took the same in custody and also informed him that the receipt of the said currency will be given at the Airport. The Customs Officer then asked him to accompany them to the Airport in his car, therefore, he took his car and reached the Airport where another Customs Officer removed his car to the car parking area. Thereafter he was involved in this ease. He has produced affidavit of Dr. Shahid Ali Khan as Exh.9 which was filed in the High Court and he has also produced the certificate of P.IA. As Exh.9/B, both were produced in the High Court in Special Criminal Bail Application No,48/87. In his cross- examination to the State Counsel he has explained how the money was obtained and from whom it was obtained. He has admitted that he is a partner of Neclum Motors. He also admits that the amount of Rs,10,00,000 was claimed by him and he was contesting adjudication proceedings. He has preferred appeal against the order of confiscation of the said amount. He admits that the appeal was dismissed but he has now preferred revision before the Secretary Finance.
15. The next witness is D.W.2 Muhammad Hameed, he states that he was employee of the Contractor Karachi Airport and used to issue receipts for vehicles which were parked at Karachi Airport. He admits that on that particular day he had issued receipt of car bearing No,217-248 which was issued by him to a Customs Officer who had parked the said car there. The Customs Officer had brought that car. He further admits that receipt was issued on that day at about 9-30 p.m. In his cross-examination he admits that a Customs Officer had told him that he will be cited as witness in this case.
16. D.W.3 is Dr. Shahid Ali Khan. He admits that on 23-6-1987 he had gone to the house of accused as his wife was under his treatment. He reached there at 9-00 a.m. And at that time accused alongwith 3/4 persons came there. While the accused was leaving he had a briefcase in his hand.
He also admits to have given his affidavit in the High Court. In his cross-examination nothing worthwhile has come but he has admitted that he does not know the contents of the briefcase.
17. From the evidence discussed above it will appear that the prosecution case is full of loopholes and there are material irregularities and illegalities, which are not reconcilable. In this regard I may first refer to the F.I.R. According to the F.I.R. The complainant has clearly shown that he had seen the accused coming in his car and he had seen the car being parked by the accused in the parking area at Terminal No,I11. In the F.I.R. It is also mentioned that car was impounded by the complainant.
While in the Mashirnama it is mentioned that after the arrest of accused and recovery of currency it was the accused who had taken the Customs Officer to the parking area and on the identification and pointation of the accused the car was seized by the Customs Officer. This is really very surprising when the Customs Officer had already seen the accused coming and parking his car, therefore, the question of pointation of the car to the Customs Officer did not arise. Again referring to the F.I.R. As well as the Mashirnama it will appear that the place of occurrence as given in Column 2 of the F.I.R. And the place of seizure as given in the Mashirnama of recovery is the "International Departure Lounge" It is to be noted that a passenger enters the Departure Lounge after having handed over his luggage to the airlines counter where the passenger is issued the boarding card. This means that the passenger concerned will be without his luggage if he is intercepted in the Departure Lounge. Obviously the luggage of the appellant could not have been examined in the Departure Lounge as claimed and it also appears that the Customs Officer P.W.1 A.H. Farooqui having realized this error on his part has tried to create an explanation by stating that the luggage of the appellant was got segregated. In this regard it may be noted that there was nothing in writing to prove that luggage was called by the Customs Authorities. This is not the only folly on the part of the Seizing Officer. It may be noted that according to the Seizing Officer he had first of all detained the appellant whereafter he allegedly called for his luggage, then he called two witnesses, then in the presence of the said witnesses he searched the baggage, the alleged recovery of Rs,10,00,000 was made, it is obvious the amount must have been counted thereafter according to the Mashirnama Exh.3/A the appellant alongwith the Seizing Officer and the witnesses went out of the Terminal No,III where the car of the appellant was allegedly parked, thereafter the car was searched, the entire party again returned back to the Customs Room where the Mashirnama Exh.3/A was prepared. The above details will obviously go to show that from the time of occurrence i,e. 9-50 p.m. As given in the FIR. At least about 45 minues to one hour must have been consumed and thereafter the Mashirnama of seizure may have been prepared. Surprisingly the date and time of preparation of Mashirnama and the date and time of occurrence is exactly the same i,e. To say 23-6-1987 at 9-50 p.m. This obviously is not possible too. How could this time of preparation of Mashirnama and the time of occurrence be the same. Specific question has also been put to the Seizing/Investigating Officer but he has also failed to explain the same. This is such a lacuna in the prosecution case for which there is no reasonable explanation. In fact it fits in with the explanation given by the appellant in his statement on oath. At this stage I may also refer to a very material fact. The appellant had stated that he had never handed over his luggage and therefore boarding card was never issued to him. On the other hand the prosecution case is that boarding card was issued to the appellant. If that is so then the boarding card which was issued to the appellant should have been secured by the Seizing Officer. Though the Seizing Officer P.W. I claims to have secured the boarding card but Exh.3-C/1 which is the boarding card, is not the original. In this regard the Investigating Officer P.W.4 has clearly admitted that the said Exh.3-C/1 is a duplicate boarding card. Now the question is if the original boarding card was secured where is it and why it was suppressed. There is no explanation as to what was the need for obtaining a duplicate boarding card. The only plausible explanation is that, the duplicate boarding card must have been obtained to strengthen the prosecution case. It is very important to observe at this stage that in order to make it a case of smuggling it is always incumbent upon the prosecution to show that the accused in a given case had completed all the formalities and was about to board the aircraft when he was detected, in such an eventuality it becomes a case of making an attempt of a smuggling any contraband article out of the country. Again if such evidence is lacking then it will not be a case of smuggling. It seems that an effort has been made in the present case to show that the appellant was trying to smuggle Rs,10,00,000 out of the country.
18. The evidence of P.W.2 Rana Ahsanullah who has acted as a Mashir of recovery does not fit in with the circumstances of the case. For instance he states that he was called by the Seizing Officer at 8-00 p.m. In his evidence while narrating the facts he has stated that he has not seen the interception of the appellant in the International Departure Lounge. As per his evidence the appellant was at the place where the boarding card was to be issued. This means the appellant was at the P.I.A. Counter. According to this witness at that time the Customs Officer intercepted the accused. This belies the prosecution case and contradicts the evidence of the Seizing Officer that the accused was intercepted in the International Departure'Lounge. Furthermore according to this witness the Customs Officer after the seizure of Rs,10,00,000 had prepared the Mashirnama Exh.3/A and he does not remember if the car of the accused was also taken into possession. This will go to show that this witness is not aware that the Customs party had gone out of the building to the parking area where car was seized. This witness has admitted in his cross-examination that Customs Officer searched the suit-case of the accused in the Customs Room which is no body's case. He denies that the Customs Officer had called him at 9-50 p.m. For signing the Mashirnama Exh.3/A. But the fact remains that the Mashirnama was prepared at 9-50 p.m. And the Mashir could sign the same only at or about 9-50 p.m. On that day, but surprisingly this witness who has acted as Mashir denies to have signed the same at or about 9-50 p.m.
19. Now it is an admitted position that the recovery of Rs,10,00,000 is not denied by the appellant. His detention as well as the seizure of his car is also not denied by the appellant. But the appellant has denied the manner and the circumstances under which the said seizure was made and how he was detained. In a case like this when the explanation given by accused fits in with the other circumstances of the case, then the case of the accused is to be kept in juxtaposition with the prosecution case and then the entire evidence is to be appraised. Following this principle, as already discussed above the case of the prosecution is full of loopholes and the explanation given by the accused appears to be plausible specially so when there is evidence of D.W.2, Muhammad Hameed who was originally a prosecution witness but the prosecution failed to examine him and he has been examined by the appellant in his defence. The appellant has stated that the car in which he had gone to the Airport was driven to the parking area by the Customs Officer is supported by this witness Muhammad Hameed who states that he had issued a parking receipt to a Customs Officer who had driven the car of the accused to the parking area. The fact that the accused alongwith the Customs Officer had gone to his house where they were seen by Dr. Shahid All Khan who is a totally independent and respectable person, this witness has stated that he had seen the accused alongwith 3/4 persons in the morning of 23-6-1987 and he had seen the accused again leaving his house with a briefcase. Though he did not know the contents of the briefcase but his evidence supports the explanation given by the accused that he had gone to his house alongwith Customs Officers from where the seizure of Rs,10,00,000 was made which was carried by them in the briefcase.
20. From the above circumstances I am of the considered view that the explanation given by the appellant is possible as well as plausible. Since the explanation given by the appellant is possible, therefore, it cannot be said that the prosecution has proved its case beyond all reasonable doubt.
It is the duty of the prosecution to prove the case beyond any shadow of doubt and prosecution case should not be capable of being explained by means of any possibility. As already stated that prosecution case has been explained by means of another possibility as suggested by the appellant in his deposition on Oath. The duty cast upon the appellant is very light, he has to only show that the defence set up by him is reasonably possible. I am satisfied by the explanation given by the appellant and therefore, I am of the considered view that the charge against the appellant appears to be doubtful.
21. Accordingly I give the benefit of doubt to the appellant and consequently set aside the conviction and sentence awarded to the appellant. The appellant is on bail, his bail bond stands discharged. The appeal is allowed.