TUFAIL ALI A. RAHMAN, C. J.----The prosecution case is that on the 23rd April 1967 information was received by P. W. Syed Ghulam Abbas, who is a Preventive Officer at Customs House at Karachi that some contraband cloth and gold in liquid form wag concealed in premises said to be occupied by the appellant and one Zafar A.I. The address of these premises was not known but it was stated that there would be a big board displaying the words "Central Public School" and the premises would easily be located. Accord--ingly the witness organised a raiding party consisting of himself and two other Customs Officers namely Karamat A.I and Arbab besides two mashirs one of whom was Samidad Khan. The party found the premises easing enough and when they knocked at the door the appellant came out. The witness Ghulam Abbas informed him that he bad information that contraband goods were concealed in their premises and the appellant allowed the party to enter the premises. On entering and crossing a gallery they came into a room in which they found several items of cloth and clothing and 999 bottles of what had been described as liquid gold. I have not been quite able to understand nor were counsel in the case able to advise me as to what the expression "liquid gold" means. I imagine it cannot mean metallic gold for metallic gold at normal temperature and pressure would not be liquid and possibly this may be a chemical preparation of which gold is the main ingredient and from which gold can be easily extracted so as to make the preparation commercially attractive for persons in the trade of buying/ selling gold or manufacturing articles there from. However, this does not very much matter in the present case for the Assistant Advocate-General candidly said that inasmuch as this preparation has not been examined by a chemist he would not be able to say what it really was and was content to argue the case upon the basis that the other items found were of such a nature that their import was prohibited.
2. The customs party served a notice under section 172 of the Sea Customs Act, 1878, upon Qamar A.I but not upon Zafar A.I who was also present. It would be convenient to mention here that these premises are situate at 126-B, Federal 'B' Area, Karachi. It is then alleged that the appellant led the customs party to Mithadar and pointed out the house of one Siddique from where nearly 5000 fountain pens of foreign origin were recovered. The appellant then proceeded to other places also from where other goods were secured and as a result eventually the appellant, Zafar A.I and the persons alleged to be concerned in the possession of the various other goods pointed out by the appellant were put up for trial before the City and A.D.M. Under section 167(81) of the Sea Customs Act.
3. The prosecution then examined four witnesses namely Ghulam Abbas, Karamat A.I and Samidad Khan whom I have already mentioned and another Customs Officer, namely Khurshid A.I Khan who was concerned, however. Only with the investigation of the case. After all this evidence was over the then City and A. D. M. Was transferred and Mr. S. M. Mutahir succeeded him. This latter learned Magistrate came to the conclusion that the case in relate on to the articles found in the building in Federal 'B' Area could not be tried with the other cases and therefore split them up and, in regard to the case relating to these goods, the only persons alleged to be concerned being the appellant and Zafar A.I, a charge was framed against them. There after the two accused persons led some defence evidence and the learned Magistrate then acquitted Zafar but convicted the appellant Qamar A.I of the offence charged and sentenced him to suffer rigorous imprisonment for five years.
The present is an appeal against this conviction and sentence.
4. The learned Magistrate framed two points for determination, the first being, whether the property in question was smuggled property and the second "whether the accused were concerned with keeping or concealing that property as smuggled property". Answering the first point in the affirmative and the second in the affirmative only as regards to the appellant, he naturally reached the conclusion that the appellant was guilty. Now the appellant denied his presence at the place and denied also all connection with the premises in question. He claims to be employed in and living in a tuition centre which is located at 443/14 Federal B Area. Now the evidence of the prosecution was merely that the appellant was present at the premises which they searched and they themselves say that it is alleged that he was in occupation. They go on to say that there were some other rooms which did look as if they were being used as a school and also that there were some ladies living there. No evidence whatever has come on record as to the ownership of these premises or as to who is the tenant or who is the occupant. I am wholly unable to see therefore how it can be said that the appellant was in possession of the articles in question. Even assuming that he was present, the mere fact of a person's presence at particular place or the fact that he opened the door upon a knock does not show possession of the premises or of any goods lying in the premises in question.
5. Before me great stress was laid upon the presumption which arises under section 177-A of Sea Customs Act, subsection (1) of which reads as follows:- "(1) Where any goods to which this sL1.Petition applies 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.".
I entirely agree, that there was in this case a seizure in such reasonable belief as the subsection speaks of and I agree also, that that being so, the presumption is against the person from whose possession the goods were seized. There is no presumption however as to possession itself. That is a fact which the prosecution must itself prove and there has been in this case not even a faint attempt to prove anything of the kind. There is not even so much as oral evidence of neighbours to say that the appellant used to live in the premises in question.
6. The learned Magistrate's own discussion of the question is very short and may conveniently be reproduced:- "The evidence against the accused on this point has been discussed above in details. There is prosecution evidence to show that the board of Central Public School was hanging outside the premises and when the property was recovered from one room, while in the other room there were desks and stools which obviously were being used for the students. The prosecution has not been able to produce any evidence to show that how the accused were connected with that School. It has been alleged by the prosecution that both the accused are cousins and that they were concerned in keeping or concealing the property within that premises. However, no evidence has been produced by the prosecution that what was the connection of accused Zafar and Qamar with that premises. The only evidence that the prosecution could produce is regarding the presence, at the time of the recovery of the accused persons. The evidence against accused Qamar A.I is that of P. W. 1, S. G. Abbas, Samidad and Karamat. The evidence of S. G. Abbas is also corroborated about the service of the notice under S. 172-A which was served on accused Qamar A.I at the time of entering the house in question. P. W. 1 in his whole Examination-in-chief did not state anything against accused Zafar and only deposed against accused Qamar A.I. He also deposed that it was Qamar A.I who took him to various places where other portions of the consignment were kept or concealed. It was only in the cross-- examination when he named the accused Zafar being present in that premises. The reasons of not serving the notice on accused Zafar has not been explained satisfactorily. According to case of the pro--secution it was accused Zafar who was running that school and Qamar was with him. In fact it was incumbent on the seizing officer to serve the notice under S. 172-A on both the accused persons if they were present at the time of search. This fact that the notice was not served on accused Zafar and he did not lead the Customs party to various places creates doubt about his physical presence in the premises at the time of search, and the recovery of the smuggled property."
7. As will be seen the learned Magistrate himself came to the conclusion that there was no evidence to show how the accused were connected with that school.
8. It would seem that the learned Magistrate is greatly impressed by the fact that the notice under S. 172-A was served upon the appellant. Section 172-A however merely gives authority to search without warrant and requires that where a customs officer needs to do so, he shall serve a notice on the occupier of the premises. The mere fact that the customs officers chose the appellant for the service of the notice would not make the appellant the person who was in possession. The absolute of that possession is highlighted by the fact that the other accused, Zafar A.I, was also present and as the learned Magistrate himself says, notice was not given to him. Supposing in this case then, the notice has been served on Zafar A.I and not Qamar A.I, would that make the accused Zafa A.I responsible?
9. It would also seem that the learned Magistrate has been influenced by the fact that the appellant then took the customs party to other places where smuggled goods were also recovered. Now that evidence, if true, establishes some other crime but in the present case I am concerned only with the question whether the appellant was guilty in relation to the goods found at the premises at 126/B, Federal Area. The possibility that he was guilty in some other cases does not affect the propriety of conviction in this case at all.
10. The learned Magistrate then after discussing the defence evidence says:-- "The prosecution has, therefore, proved that property which was recovered from the premises of Central Public School was the smuggled property and it was concealed there and it was a property valued at several lace of rupees. The prosecution has also established beyond reasonable doubt that accused Qamar A.I was present at the time of the search and the seizure of the property and he was duly served with a notice under S. 172-A of the Sea Customs Act."
This is the sole other reference in the judgment to any question of possession. I am wholly unable to see, how it can be said that the appellant was in possession of the goods in question, and, therefore, cannot hold that the present conviction can be sustained.
11. In view of this conclusion I have not thought it necessary to examine the question whether the goods have been shown to be of foreign origin or imported in violation of any orders of the Central Government. Nor have I thought it necessary to examine the defence evidence and I have assumed the complete truthfulness of the prosecution story as deposed to in Court.
12. In the result I therefore allow this appeal and set aside the conviction and sentence imposed upon the appellant. If he is in custody he shall be released forthwith unless required in some other case.