1. ' Brief facts leading to present appeal are that Coast Guard Authorities on 29-4-1990 received credible information communicating smuggling of huge quantity of Pakistani and foreign currency out of Pakistan towards Dubai through sea. A mobile patrol party headed by Lt.-Col. Moeenuddin Commandant First Battalion Pakistan Coast Guard Uthal was assigned task of strict vigilance on coastal area. It is the case of the prosecution that on 30-41990 at about 5-30 a.m. Near "spot- Bander", patrolling party saw a vehicle parked in close vicinity to a Hora standing at sea shore.
2. Ghasht Party rushed towards said place, whereupon on seeing them person based in Hora and said vehicle, opened fire. The patrol party also, responded. Meanwhile smugglers in the Hora managed to escape towards deep sea. However, Asghar Ali, a (convict) Javid Ali alongwith another person namely Muhammad, who expired during the penedency of proceedings were apprehended. According to prosecution Pakistani currency wrapped/packed in two polyproplyne bags and foreign currency lying in cavities of the vehicle bearing Registration No,282-291 were recovered. Besides a double-barrel gun with 14 live cartridges and six empties were also taken into possession. Details of currency recovered from possession and control of appellants is mentioned below:-- Pakistani currency Indian currency Japan (Yen) Saudi Arabia Switzerland
(6) Naderland
(7) Hong Kong
(8) Malaysia
(9) Scotland
(10) Singhapore
(11) Australia
(12) Canada
(13) France
(14) Kuwait
(15) Qater
(16) U.A.E.
(17) Oman ' Rs,1,09,99,000 Rs,17,85,200 10,000 ' 1,66,750 Rials
(a) 50 Dix Franc.
(b) 200 Zawanzig Frankin ' 700 Golden 17(R Dollars 500 Ringgist 180 Pound 700 Dollars 700 Dollars 1800 Dollars
(a) 16800 Cent
(b) 200 Ciguante Frances 2330 Dinars 400 Rials 17,600 Dirhams 100 Rials
(18) Bahrain 600 Dinars ' Convict-appellants and deceased Muhammad were arrested and given notices Exh./1-C, Exh.1/D and Exh.1/E under section 171, Customs Act, brought to Headquarter Uthal where F.I.R. Exh.P.1/F was lodged by Lt.-Col. Moeenuddin. After completion of investigation, they were sent up for trial before Special Judge, Customs, Khuzdar. At the commencement of trial, charge was read out to accused on 26-8-1989 which they refuted and pleaded not guilty. The prosecution has examined 3 witnesses namely (P.W.1) Lt.-Col Moeenuddin, (P.W.2) Maj. Shabir Ahmad and (P.W.3) Maj. Sobuh Sadiq, the Investigating Officer. Statements of accused under section 342, Cr.P.C. Were recorded on 7-11-1993 wherein they denied all the accusations. Accused, however, gave their statement on oath within the purview of section 340(2), Cr.P.C. Explaining their innocence and produced three defence witnesses, namely D.W.1 Muhammad Ayub Buledi M.P.A. D.W.2 Abdul Hamid and D.W.3 Dr. Hayat. It may be seen that at initial stage convicts/appellants submitted an application under section 265- K, Cr.P.C. Which was dismissed by Special Judge Customs, Khuzdar on 20-12-1989. Appeal filed by them before Custom Appellate Tribunal was also rejected on 5-8-1990. Subsequently after examination of two prosecution witnesses convict/appellants again submitted an application under section 265-K, Cr.P.C. Before trial Court which was, accepted vide judgment, dated 31-3-1991, whereby they were acquitted. Besides directions were made for the release of Pakistani currency and shot gun. The State had filed an appeal before Custom Appellate Tribunal which was accepted by means of judgment, dated 27-10-1991 whereby decision, dated 31-3-1991 was reversed, and on remand trial Court had been directed to ensure expeditious disposal. However, after completion of prosecution and defence evidence, learned Special Judge, Customs on appraisement of material brought on record found the appellants guilty and convicted them vide judgment, dated 2-2-1994 in following terms: "Therefore, accused persons committed offence under section 156(1)(8) and (92) of the Customs Act, 1969. The accused persons have been charged for offence under section 156(1)(8)(89) of the Customs Act. The charge is accordingly altered from section 156(1)(8)(89) to section 156(1)(8)(92) of the Customs Act. The accused persons are accordingly convicted under section 156(1)(8) and sentenced to 2 years' R.I. And fine of Rs,1,00,000 each in default of payment of fine to undergo further term of 6 months' R.I. And fine of Rs,50,000 each in default of payment of fine to undergo further term of 3 months' R.I. Both the sentences of imprisonment shall run concurrently. The accused persons are on bail, they are taken into custody. The case be kept in dormant against the absconding accused persons."
3. ' Mr. Yahya Bakhtiar, learned counsel for convicts/appellants strenuously urged that prosecution evidence has glaring contradictions and circumstances mentioned by the witnesses are highly improbable. He, however, stressed that defence evidence consists of independent witnesses which has been ignored by the trial Court without assigning cogent reasons. Learned counsel thus urged that impugned conviction and sentence was not maintainable. Additionally it was canvassed that, under the Islamic Criminal Justice, version of prosecution witnesses who were subordinate to complainant is not reliable or trustworthy. Reference was made to comments in the book, (i)
4. Islamic Jurisprudence An International Perspective by C.G. Weeramantry pages 79-80 and (ii) The Islamic Criminal Justice System by M. Cherif Bassiouni, page 118. It was also argued that foreign currency had been foisted against convicts/appellaiits, which factually was being claimed by Abdur Rashid, before competent adjudicating authority under Customs Act. According to learned counsel movement with Pakistani currency inside the country did not constitute any offence, therefore, impugned conviction was defective.
5. ' Whereas learned Deputy Attorney-General vehemently opposing the appeal contended that preponderant evidence involving the appellants with commission of offence exists on record as rightly held by trial Court. He maintained that evidence of prosecution was independent and impartial. According to him absolutely no motive was ascribed to either of prosecution witnesses during cross-examination, therefore, their version was quite reliable and trustworthy. It was argued that defence evidence was deeply interested and manipulated as such could not be relied upon.
6. He thus prayed for enhancement of sentence awarded to convicts/appellants by the trial Court.
7. ' I have carefully perused the record and considered arguments advanced by learned counsel for parties. For properly appreciating respective stand of either party, it would be necessary to mention salient features of evidence brought on record.
8. ' P.W.1 Lt.-Col. Moeenuddin deposed that pursuant upon information from headquarter he moved with patrol party towards coastal areas for strict vigilance around 5-30 morning, they noticed from some distance that a landcuriser parked near sea-shore where a Hora was also beached. On witnessing patrol party they started firing from the side of Land Cruiser and Hora patrol party also fired in exchange. The witness expressed, that Hora escaped towards deep sea and persons from land cruiser namely Asghar Ali, Javed and Muhammad were apprehended. Pakistani currency worth Rs,1,09,99,400 lying in polyproplyne bags was seized and on pointation of accused persons, huge foreign currency of different countries concealed in cavities of land-cruiser was also recovered. According to his version, necessary notices were given to accused persons, and recovery memo. Prepared in presence of Maj. Shabir and Capt. Wajahat Hussain. Besides six empties lying on the ground were also taken into custody. Licensed shot gun was also produced by the accused.
9. ' Subsequently after completion of interrogation accused were brought to Headquarter Uthal where F.I.R. Exh.P./1-B was lodged. During cross-examination it was admitted that coast guard has got Helicopter and other facilities which are at the disposal of Headquarter and could be utilized by special permission subject to demand and priority in each case. But no demand in that behalf, was made in the instant case. Assertions that appellants were apprehended from highway about fifteen kilometres away from Uthal was specifically disputed. However, it was not challenged that Spat Bander is located within Pakistan. Allegations about obtaining thumb-impression on plain paper, preparation of notice or recovery memos. At Headquarter office at Uthal was categorically denied. Suggestion of defence counsel that five persons namely (i) Abdul Hamid son of Qazi Usman, Nasir Ali, (iii) Ghulam Yasin, (iv) Abdul Hamid son of Gohram and (v) Muhammad Hayat were present -at the site when appellants were apprehended, has been specifically refuted.
10. ' P.W.2 Maj. Shabir deposed that on 30-4-1989 he was assigned patrol duty in the area Spat Bander around 5-30 a.m. They heard firing and rushed towards said place. They found that patrol party headed by Col. Moeenuddin had reached near a Land Cruiser of black colour No,282-291 which was standing near sea shore. They saw three accused persons whose names were disclosed to be Asghar Ali, driver, Javid Ali and Muhammad. Two polyproplyne bags containing Pakistani currency were in the vehicle. On account of darkness in the early hours, no civilian was present there. Thus, witness Maj. Shabir and Capt. Wajahat became Mashirs of recovery. He deposed that on counting Pakistani currency was found to be Rs,1,09,99,400, vehicle (Land Curiser No,282-291) was searched at the instance of appellant Javid Ali, whereupon a double-barrel gun alongwith 14 cartidges and huge amount of foreign currency was discovered from the cavities. During cross-examination the witness stated that incident was at about 5-30 a.m., however, counting and preparation of memo.
11. Continued almost up to 6-30 p.m. Suggestion of defence counsel that appellants were apprehended at a distance of 15 kilometres from Uthal was specifically denied. The witness stated that register showing patrol duty concerning officers is regularly prepared which can always be produced. Copy of said Register was placed on record. The witness admitted that Spat Bander is located within Pakistan territory. The assertions that foreign currency belonged to Abdur Rashid or that he had claimed it from Customs authorities has been categorically refuted. Witness also denied the suggestions concerning preparation of seizure memo. Etc. At the Headquarter office.
12. ' The testimony of P.W. Maj. Suboh Sadiq who is Investigating Officer discloses that accused were entrusted to him on 1st May, 1989 and he took their remand upon 13-5-1989. He recorded statement of Lt.-Col. Moeenuddin, Maj. Shabir and Capt. Wajahat under section 161, prepared Mashirnama of case property, collected relevant data, interrogated the accused persons who disclosed the currency was to be smuggled out towards Dubai through sea. During cross-examination copy of register for investigation was brought on record. The original register was produced whereas its extract Exh.P./3-A has been placed on record. The witness on enquiry informed that initially empty cartridges and gun was sent to Ballistic Expert on 2-5-1989 and further information was conveyed towards 12-4-1982. It was, however, mentioned that during this period, articles remained in the custody of coast-guard authorities. According to this witness, none of the appellants during investigation had informed that foreign currency recovered from them belonged to Abdur Rashid.
3. Appellants Asghar Ali and Javid All in their respective statements on oath have stated that, they were coming from Karachi when their staff of Coast Guard stopped their vehicle about 15 kilometres from Uthal. They were carrying Pakistani currency in the bags and unjustifiably apprehended.
13. ' Dr. Hayat and Hameed were present at the check post when they were stopped. Muhammad Ayub M.PA. Also reached there. When people left, Capt. Wajahat demanded Rupees three lacs which were refused. Accordingly they have been unjustifiably implicated. They explained that gun recovered from their possession was licensed one.
14. ' D.W.1 Muhammad Ayub deposed that while coming from Karachi he met appellants at 9-30 p.m.
15. Near Al-Noor Hotel about 15 kilometres towards Bella and road was blocked due to checking of vehicles by coast guard staff. The witness further stated that, on the pointation of appellants, he had explained to coast guard authorities that carrying Pakistani currency did not constitute any offence, whereupon they told that after satisfying themselves accused shall be released. Thus, he left away. Subsequently witness came to know that accused were not released. During cross- examination he stated that no one pointed out at the relevant time that appellants had foreign currency.
16. ' Testimony of D.W.2 Abdul Hamid discloses that he alongwith Dr. Muhammad Hayat were going from Buleda to Karachi when near Bella they were stopped by Coast Guard. Some trucks and vehicles were already parked there, and accused persons who had two bags of Pakistani currency were being interrogated. Witness denied recovery of foreign currency from the possession of appellants. He also disputed apprehension of appellants from Spat Bander.
17. ' D.W.3 Dr. Muhammad Hayat also corroborated the version of D.W.2 Abdul Hameed. Prosecution has mainly examined P.W.1 Lt.-Col. Moeenuddin and P.W.2 Maj. Shabir Ahmed for substantiating recovery of Pakistani and foreign currency from control and possession of appellants near sea shore of Spat Bander intended for smuggling out of Pakistan through sea. Both these witnesses in their respective depositions have categorically asserted that pursuant upon reliable information they kept strict vigilance over all directions near sea shore. Lt.-Col. Moeenuddin expressed that on 30th April, 1989 at about 5-30 a.m. He witnessed black land-curiser parked near sea shore where Hora was also beached. Appellants and persons sitting in Hora opened fire towards Coast Guard Gusht Party headed by him. He affirmed that appellants were overpowered, meanwhile Hora alongwith its occupants escaped towards deep sea. They recovered Pakistani currency of Rs,1,99,99,400 packed into polyproplyne bags and huge foreign currency from cavities of land- cruiser when Maj. Shabir Ahmad and Capt. Wajahat acted as Mashirs. His version has been fully corroborated by P.W. Maj. Shabir Ahmad. It was affirmed that he alongwith Patrol Party on hearing firing rushed towards place of incident near sea shore at Spat Bander where black land-curiser was parked and appellants apprehended by coast guard Mobile Patrol Party. Whereas' Hora escaped towards deep sea. Witness proved recovery of six empties and gun shot from appellant.
18. Similarly recovery of Pakistani currency and foreign currency intended for smuggling out of country has also been reaffirmed by P.W. Major Shabir Ahmed. During arguments minor contradictions about location of polypropylene bags containing Pakistani currency, name of culprits who handed over shot gun and existence of cavities were highlighted. Except above-referred minor variations testimony of both these P.Ws. Unambiguously established recovery of Pakistani as well as foreign currency from appellants at Spat Bander near Sea Shore. Their testimony concerning presence of Hora at the site and its escape is also unshaken despite lengthy and searching cross-examination.
19. Additionally Major Shabbir Ahmed, Investigating Officer mentioned description and produced copy of Register Exh.P.3-A confirming details leading to recovery of Pakistani and foreign currency from appellant and submission of challan. It is pertinent to mention here that appellants in their statements have alleged demand of Rupees three lacs by Maj. Wajahat, but no such suggestion was made to prosecution witnesses who have categorically involved them for attempting to smuggle out of Pakistan huge amount of foreign and Pakistani currency. It may be seen that learned counsel for appellants, referring to observation in aforequoted celebrated commentaries has canvassed that testimony of prosecution witnesses cannot be elided upon. I am afraid that above-referred commentary have no direct elegancy and do not strictly apply in present case because absolutely no motive as been attributed by appellants either to Lt.-Col. Moeenuddin, the prosecution witnesses examined in the instant matter. Besides question regarding reliability of testimony given by the official witnesses has been repeatedly considered in several reported judgments by Honourable Supreme court which certainly has a binding effect. For reference some of said decisions are mentioned here:--
(1) Muhammad and others v. The State PLD 1981 SC 635,
(2) Shah and others v. State PLD 1984 SC 278,
(3) Abdul Hameed v. The State 1986 SCM R 11,
(4) Malik Aman v. The State 1986 SCM R 17,
(5) Safdar Abbas and 2 others v. The State PLD 1987 SC 467.
20. ' Now looking to defence evidence it may be seen that three defence witnesses have been adduced who deposed that they saw appellants stranded 15 kilometres from Bela where Coast Guard Officials were conducting extensive checking of all vehicles. Witnesses also disclosed that appellants were carrying Pakistani currency. D.W. Muhammad Ayub, claimed to have approached Coast Guard authorities pointing out that carrying Pakistani currency within the country did not constitute offence. According to said witnesses the authorities wanted merely to ascertain actual legal position. None of these witnesses have deposed about arrest of appellants in their presence from place near Uthal or Bella. Additionally none of these witnesses gave any indication that coast guard authorities had demanded illegal gratification to release them or Pakistani currency. In the peculiar background of circumstances even if testimony of all defence witnesses is fully believed same at best discloses that appellants were seen by them 15 kilometres from Uthal on 29th April, 1989 towards 'evening hour where normal checking was being conducted by Coast Guard Authorities. It is obviously possible for appellants to reach at Spat Bander around the period when prosecution asserts to have apprehended them alongwith Pakistani and foreign currency. If prosecution case and defence version is kept in juxtaposition, both these situations being mutually exclusive, and relating to time period are independently possible. Thus, even accepting defence evidence validity of prosecution case, where absolutely no motive is ascribed to witnesses, showing recovery of Pakistani and foreign currency in a Land Cruiser near sea shore at Spat Bander where Hora was also beached has remained unimpeached as such fully established. Additionally discrepancy in the statement of appellants and impact of defence evidence, being another possible situation as discussed the impugned judgment, also cannot be easily ignored.
21. ' From thorough scrutiny of whole material and critical analyses of prosecution evidence as well as defence version, I am fully convinced that recovery of foreign and Pakistani currency from the possession of appellants in the manner described by prosecution witnesses is proved beyond reasonable doubt. An effort was made to suggest that foreign currency belonged to Abdur Rashid and copy of the notice given by his Advocate has also been placed on record. It is surprising that during cross-examination of D.W.2 held on 18-7-1990, it was suggested that foreign currency belonged to Abdur Rashid, but no explanation has been furnished why he was not produced in defence, so that his veracity would be effectively tested. Failure to examine him in defence tends to lead adverse inference and appellants cannot avail its advantage.
22. The appellants have been undergoing rigours of trial for the last 5-1/21 years, therefore, while maintaining conviction; the sentences of imprisonment and fine awarded to them by learned Special Judge, Customs, Quetta is reduced to half in each count in the following manner:- "The accused persons are accordingly convicted under section 156(1)(8) and sentenced to one year's R.I. And fine of Rs,50,000 (Rupees fifty thousand) each in default of payment of fine to undergo further term of three months' R.I. Accused persons are also convicted under section 156(1)
(92) of the Customs Act and sentenced to six months' R.I. And fine of Rs,25,000 (Rupees twenty-five thousand) each in default of payment of fine to undergo further term of forty-five (45) days' R.I.
23. Both the sentences of imprisonment shall run concurrently."
24. ' Appeal No,2 of 1994 disposed of in the above terms, whereas Appeal No,4 of 1994 filed by State, for the aforementioned reasons is dismissed. The appellants shall also have benefit of section 382-B, Cr.P.C.