1. ' The two appellants, Captain Muhammad Younus and Muhammad Yakoob Khan were sent up along with Agha Mahmood Sheraai, Muhammad Islam, Abdul Karim, Muhammad Ismail and Akhtar Hameed, to stand trial before the City and A. D. M., Karachi for offences under sections 187
(il) and 212 of Sea Customs Act, read with section 120-B of the P. P. C. Three of the accused were discharged, while by a judgment dated 1-6-73, the City and A. D. M. Acquitted co-accused Muhammad Ismail, and convicted the two appellants end sentenced them each to five years' R. I.
2. And fine of Rs. 50,000, in default three years more R. I. The other co-accused Agna Mahmood Sheraai was also convicted, but was awarded a lesser sentence i. e. Till rising of the Court and a fine of Rs. 25,000 or in default R. I. For three years. This leniency in sentence was shown, as stated by the City and A. D. M. "on consideration of his youth and being an orphan ; otherwise he deserved the maximum period of imprisonment also and heavier fine". With regard to the two appellants however it was stated that they deserved no such leniency in the face of the reasons advanced although no such reasons appear in the body of the judgment.
3. ' The first information report for the offence was registered on 3-6-66, at 6-00 p.m. By P.
0. M. Y. Arab of the Customs House, Karachi and was in the following terms:- "Secret information has been received that Agha Mahmood Sherazi is engaged in smuggling of foreign sold. He takes trips under false names. It was further revealed that he will travel to Dacca on Flight No. PK/708, on 4-6-6, under the assumed name of Yousuf Suleman, carrying a large quantity of foreign gold concealed on his body and in his suit-case."
4. ' Pursuant to this information, the Officer visited the Karachi Airport and while watching the incoming passengers, he noticed two persons getting down from a motor rickshaw. One of those persons was of the description given to him by the informer and, therefore, he approached the P. I.
5. A. Traffic Officer, Riaffat Pasha to let him know as to which of the passengers was Yousuf Suleman.
6. After checking this passenger, he followed him and then communicated the information to another P. I. A. Official Muhammad Sabir. They all then went over to the examination hall of the Customs and took the personal search of that passenger who had disclosed his name as Yousuf Suleman. It was found that there was a specially made cotton jacket under his shirt, which on further examination was found to contain 80 bars of foreign gold stitched therein. His baggage bag, P. I. A, ticket, photographs and diary, besides a key were also secured in the search. They then went to the Aircraft and secured the suit case bearing the tag number which was identified by Yousuf Suleman as his own. He had by that time given his real name as Agha Mahmood Sherazi. The suit-case was opened with the key, and it contained one hundred gold bars of foreign origin; each one weighing 10 Toles. These were similar to those that were secured from the person of Yousuf Sulemati alias Agha Mahmood Sherazi. In all 1800 Toles of gold in the shape of 180 bars bearing the foreign marks of Johnsons Methey were secured and seized, Yousuf Suleiman alias Agha. Mahmood Sherazi was then arrested. Search was made for his companion who had come in the rikshaw but he was not secured.
7. ' The case was thereafter investigated by Syed Mazhar Sibtain, Preventive Officer, Customs. The arrested accused Agha Mahmood Sherazi who led him to the office of Messrs Khan Enterpriser in Federal B Area. Appellant Muhammad Younus was supposed to be the proprietor of that firm while appellant Muhammad Yakoob, the manager. The firm dealt in transport business. The Preventive Officer then visited the house of appellant Muhammad Younus and as he was absent he left a notice under section 171-A of the Customs Act, with his son Jawed. He also visited the house of appellant Muhammad Yakoob in company of Agha Muhammad Sherazi, but he was also absent.
8. On 5-6-66 he searched the house of appellant Muhammad Yakoob and served a notice under section 171-A on oue Aziz Abmad Khan who was present there. Nothing incriminating was secured in this search. He examined one Muhammad Mad who was pointe out by Agha Mahmood Sherazi and got his 164 statement recorded by S. D. M. Mr. Jumani. He also examined one Muhammad Ashraf and got his 164 statement recorded by S. D. M. Mr. Muhammad Khan Juriejo. On 10.6-66, he searched the house of appellant Youeus Khan in the presence of his son Jawed and seized his passport, his photographs, a piece of paper showing an address of quarter No. 980 P. I. B. Colony and a letter addressed to one Ibrahim by one Muhammad Ismail and six other letters addressed to Mr. And Mrs, Youmts were also secured. Oa 14 6- 966 he was informed on telephone that appellant Younus Khan was admitted in the Civil Hospital, and he proceeded to room No. 20 where he found him. He formally arrested him and posted a guard there. The appellant was then taken to Customs House after obtaining a etness certificate about his health. On 26-7-66, acquitted accused Muhammad Ismail was arrested at the pointing of appellant Muhammad Youeus. Appellant Yakoob Khan had surrendered before the City and A. D. M. And has been remanded to judicial custody. His custody was obtained by the Investigating Officer and on his pointing, the house of coe:ccused Muhammad Islam was searched, but nothing incriminating was secured. However, Islam was arrested; and at his pointing again co-accused hbdul Kareem was arrested on 12-7-66.
9. The Preventive Officer obtained the specimen of the writing of appellant Muhammad Younus Exh, 18 and of co-accused Mohammad Ismail, and sent the same for examination alongwith the questioned writing i.e. Bah. 9 letter secured by Rifat Pasha, at the Airport, from Agha Sherazi.
10. ' At the trial the prosecution examined ten witnesses. P. W. 1, Mat Pasha, while briefing the passengers for Dacca, on 4-6-1:66, had assigned the flight coupon of Agha Mahmood Sherazi, who had described himself as Yousuf Suleman. He issued the baggage ticket to him and subsequently, acted as a Masbir of seizure of property secured in search of that accused. This property consisted of gold secured from the person as well as the suitcase cf accused Ada Mahmoed Sterazi, besides three photographs, a diary, a piece of paper etc. P. W. 2 Syed Muhammad aabir, was the Traffic Officer at the Karachi Airport on 4-6-1966. He also witnessed the search of the accused Agba Mahmood Sherazi. P. W. 3 Khalil-ur-Rehmen, was a witness of the search of the house of appellant Khan Younus, from where some papers were secured. F. W. 4, Muhammad Asad, deposed that he knew Agha Mahmood Sherazi and was related te him. In the summer of 1966 he had offered him a job as a travelling agent but had made him swear oc the Holy Qur'an to maintain secrecy He then came alengwith appellant Yakoob who had at that time assumed the name of Salem; bcth of them took him to the roof of the house and administered an oath to him and then informed him that be was to carry gold to East Pakistan for which job he woul I be paid Rs. 1 per Tola. Appellant Yakoob had contacted him two dads later also and had asked him to go to East Pakistan. He again contacted him 3 or 4 times to remind him of the oath. He informed him on telephone that he had to go to East Pakistan with the gold. This witness had given his photographs to Agha Mahmood Sherazi when he was first administered the oath. As he was friendly with Agha Mahmood Sherazi, he used to go to ee pictures with him and on one such occasion, A gha Mahmood Sherazi had pointed out to appellant Captain Muhammad Younus and informed him that he was the employer of Agha Mahnaeod Sherazi, P. W. 5, M. Y. Arab bad received the information on 46-1966, that a person will carry foreign gold to Dacca under a false name Yousuf Suleman. He saw two persons arriving in rikshaw and suspected accused Agha Mahmood Sherazi as he tallied with the description given to him. He then approached witness Rifat Pasha and got this accused arrested, and witnessed the property secured from him. P. W. 6, Khawaja Ziaul Hassan had worked under S. D.
11. M. Mr. Jamaluddin Jumani and knew his handwriting. As Mr. Jamaluddin Jumani had died and could ot be examined, he was examined. He saw 1 /1, P/11, P/16 and P/17 and identified the signatures of air. Jamaluddin Jumani. He also identified the seal of his Court. P/18 was the specimen of the handwriting of appellant Khan Muhammad Younus, which had been taken before, Mr. Jamaiuddin Jumani, the S. D. M. And bore the seal of his Court. P. W. 7 Muhammad Inam was the son of acquitted accused Muhammad Islam, but he did not support the prosecation, and was declared hostile. P. W. 8, Khawaja Shujaul Hassan was the reader to the S. D. M., Cantt Mr. Jamaluddin Junrani and was conversant with his handwriting. He produced Exh. P/21 as being the confession made by Muhammad Islam and P122 the letter of compliance sent to A. D. M. He also identified the signature of S. D. M. Jamaluddin Jumani on P/18 which was the specimen of the handwritiug of appellant Khan Younus taken before him. P. W. 9, Vsukhtar Ahmad Handwriting Expert deposed that he received the disputed handwriting 'A' on 20th March 1971, alongwith the specitnan writing 'B'. He also reviewed disputed Urdu writing 'C' and the specimen Urdu writieg 'D'.
12. After examining the same he gave his report Exh. P/25, P. W. 10, Syed Mazhar Subtain which is as under :- "The examination of the case has revealed as under: the English disputed writing marked 'A' [(Foth.
13. P. 13(a)] are in agreement with those of the author of specimen marked 'B' (Exh. P. 17)
(2) So far Urdu disputed writing marked 'C' (Exh. P. 9) is concerned more specimen writing of the suspect be furnished for further detailed examination and report."
14. ' Preventing Officer was entrusted with the investigation of the case on .=-6-1966, at t2-00 p.m.
15. After Agha Mahmood Sherazi had been arrested. The accused and the relevant papers had been handed over to him along-with F. I. R. Agha Mahmood Sherazi led him to the ()Tice of Khan Enterprisers to make a search for appellant Muhammad Younus the proprietor of that firm and also appellant Muhammad Yakoob the manager. He later on searched the house of appellant Yakoob but nothing incriminating were secured. He examined witness Muhammad Asad and got his 164 statement recorded before S. D. M. Jamaluddin Jurnani. He also searched the house of appellant Khan Younus, seized his passport and photographs, a piece of paper showing address of Q. No. 980, P. I. B. Colony, a letter addressed to Ibrahim from Khan Younus and also other letters addressed to Khan Younus. On 14-6-66, receiving information that Khan Younus was in Room No 20 in the Civil Hospital, he visited him and foratally arrested him. After obtaining a fitness certificate about him he was taken to the Customs Office and interrogated on 26-7-1966. On 30-7-66, he seized the car of appellant Khan Younus whereafter he submitted the charge-sheet before the Court.
16. ' Appellant Yakoob examined D. W. 1, Raza All and D. W. 3 Azizur Reisman; Major Muhammad Ahad Khan, D. W. 4 was examined to say that he knew appellant Khan Younus, who had remained under his treatment for diabetes and other ailments. On 10-9-1966 when he had found this appellant in serious condition he had telephoned Dr. Paracha, requesting him to examine the appellant and also admit him under his treatment. He deposed that the appellant had informed him that this condition was due to shock on account of the search made in his house. D. W. 7, S. M. Iqbal Ahmad Senior Supervisor Flight Operation P. I. A. Produced the medical report regarding appellant Captain Khan Younus of P. I. A. Who had been permanently grounded on 19-10-1965 and also he was subsequently dismissed on account of his absence from duty.
17. ' The trial Court in the appreciation of evidence against the accused stated "There is in fact not much of direct evidence against any of the accused except Agha Mahmood Sherazi who was caught red-handed with 1800 Toles of gold at the Airport, about to leave by Dacca bound P. I. A.
18. Flight No. PK-708. The customs bounds had received authentic information and succeeded in locating him through P. I. A. Officers and then haulding him up for those anti-State activities which is viewed with grave concern internationally. Much has been said at the end by D. W. 8 about his mental state but his glaring unlawful act nullifies the well-thought out defence plan. He not only did it himself, but also tried to get Asad into it as disclosed by P. W. 4 (Mad) who gave an ccount of the ordeal of each taking on the roof in the evening by Yakoob in the presence of Sherazi for carrying out the lawful mission but escaped very narrowly from being in place of his relation Agha Mahmood Sherazi. The testimony of P. Ws 1, 2, 3, and 5 leaves no room in my mind as to the daring act of Agha Mahmood Sherazi, the background of which has been fully disclosed by Asad P. W.
4. This deed was not impulsive and based on any timely emotion but, as already stated it was committed by a well-woven plan.
19. ' There is circumstantial and also direct evidence against accused Khan Younus as stated by Asad whose status as true witness cannot be challenged and the circumstantial evidence he is supposed to be the financer, remaining in the background advancing his nefarious methods through Yakoob ant Sherazi, who have done their best to entangle others in this cobweb of unlawful dealings. Nothing incriminating was found in his house directly except letters written by him to others and vice versa. The Handwriting Expert Squarden Leader Khalilur Rehman had died and his report was not brought on record in his lifetime, though it speaks for itself and was produced by P. W. 10 Mr. Sibtain as Exit. P/43. Mukhtar A hmad, Handwriting Expert P. W. 9 bad shrowded his report in mystery by saying that more Urdu Handwriting was required, but judging by process of elimination it goes in favour of the prosecution and against the defence, and thus my finding against him as the sponsor and financer and propagator of a scheme which is against the economy of the Nation.
20. ' As far as Muhammad Islam is concerned, there is no evidence against him to justify conviction and the prosecution has totally failed to bring out any act committed by this aged man, who has suffered the suspense of trial for seven long years, I, therefore acquit him under section 258(1), Cr. P.
21. C.
22. ' Accused Muhammad Yakoob has played a very active part in the entire affairs by acting as the main tool for recruitment, for procuring, for trans; orting and encourgaging the aims and objects of his employer Khan Younus as his very loyal servant. He is very correctly defined and identified by P.
23. W. 5 M. Y. Arab to have accompanied Sherazi in the rickshaw in which they both came to the Airport carrying the forbidden items. P. W. 4 Asad has given a full account of him that all his activities were sufficient to corrupt the youth of society to a degree of reducing them into worst criminals against the State. He partly succeeded by making Agha Mahmood Sherazi his instrument for carrying out the scheme of smuggling of foreign gold to the other wing of the country. He has been very careful all along, as the evidence shows. Nothing incriminating was found from his house and he had carefully disappeared from the scene as his employer Khan Younus had chosen to he hospitalised but was dragged out from the Ward and taken to Customs Intelligence. In the same way under a concerted plan Yakoob made himself not available anywhere, but at last had to face the consequences of the activities. The evidence against him is sufficient to justify his conviction and therefore my findings."
24. ' I have given above some details of the investigation and the prosecution evidence alongwith the portion of the judgment of the trial Court, to show the scanty nature of the evidence available against the appellants and the peculiar type of the approach of the trial Court to that evidence, in coming to a conclusion adverse to both of them, Even if it be held that the appellant Yakoob was in the rikshaw with Agha Mahmood Sherazi and accompanied him upto the Airport to see him off, that fact had nothing incriminating in itself so as to be used against the appellant. P. W.
4. Muhammad Mad a relation of Agha Mahmood Sherazi had spoken of appellant Yakoob but he oely said that he had accompanied Agha Sherazi at the time when an oath was given to him on the roof of the house, but, when the witness had inquired about the nature of the job he was warred that it would be lefal and proper. At his instance, however, it was Agha Mahmood Sherazi who had told him that amongst others he would have-to carry gold to East Pakistan and at that time he bad offered him a rate of Rupee one per Tola for the job. The withess was then informed by Saleem who according to him was the appellant Yakoob, on telephone, that he was to carry gold to East Pakistan. This is all that this witness had to say about the appellant Muhammad Yakoob. With regard to appellant Capt. Younus, he stated that accused Sherazi had on a certain .Occasion pointed out to accused Capt. Younus and had said that he was working for him. This he had done when the witness and Agha Mahmood Sherazi were proceeding to visit a Cinema. In his cross- examination the witness admitted that he did net remember whether he met accused Saleem by whom he meant appellant Muhammad Yakoob, after he had seen him on the roof of the house at the time of administering oath by Agha Mahmood Sherazi. He saw him for the second time after n years when he appeared in the Court. He was able to recognise him because he had met him at the roof and also because he was shown his photographs. He added: "It is correct to state that the word gold was not used over the telephone in the conversation between him and Saleem, but that he had told him that I should be ready for consignment". With regard to appellant Capt. Younus, he had not said what he had deposed to in Court, in his earlier statements, He admitted in his cross- examination "it is correct that the name of' Capt. Younus is not mentioned in my section 104 statement. I have not mentioned that I knew Capt. Younus as he was pointed to me by accused Agha Mahmood Sherazi. I added the fact about the pointation of accused Capt. Younus as I was asked in the Court by the prosecution as to who else did I recognize among the accused."
25. ' Certainly this type of evidence, howsoever much, it may be stretched in favour of the prosecution could not be said to connect the appellants wi h the alleged offence. If any association is intended to be shown between Agha Sherazi and the two appellants it cannot be said with certainty that it had any tinge of criminality. The description of the association given by the witness can easily be concieved as compatible with any ordinary and innocent behaviour.
26. ' The other part of the evidence wherein a reference is made to the two appellants, is the confession alleged to have been made by the co-accused Muhammad Islam. It may at once be stated that co-accused Muhammad Islam was acquitted by the trial Court on the ground of there being no evidence against him. In his statement in Court he had retracted from the confession and as already stated above the trial Court also was of the view that the prosecution had totally failed to bring out any act committed by this aged man. However, the relevant parts from the confession of this accused may stilt be mentioned. In reply to the question as to why the Custom Authorities arrested him, he stated "I used to bring gold from the market and give to Cap'. Younus's man Yakoob on commission for which Capt. Younus used to give me commission of four annas per Tola" and further, "conversationally Capt. Younus asked me of my business. I told him that I was 2ufferiog from Asthma. He asked me to joie in his busisess of gold and that he would given me a commission of four annas per Iola". Evidently this statement does not give any clue, that the procuring of gold by this accused Muhammad Islam was intended to be smuggled or sent over to East Pakistan by any of the appellants in violation of any law prevalent et tr at time. Purchase of gold from the local markets in any quantity has not been pointed out to be an offence or even a prohibited act under any provision of law. This part of evidence also cannot therefore be considered to advance the case of the prosecution. It is not necessary to add that the evidentiary value of a statement made by a co-accused in a confession made by him which is retracted is not of any substance. Such a statement could only be considered to strengthen any other evUence available on record, and may lend assurance to the same. This is however subject to there being some other evidence. In the present case even that much use cannot be made of this statement as its intrinsic value obviously is not much and the whole statement is devoid of any criminal allegation against the two appellants.
27. ' Confronted with this difficulty the learned Assistant Advocate-General attempted to rely upon the language used in section 167;81) as well as section 212 of the Sea Customs Act, and argued that the evidence available against the appellants was sufficient at least to show that they were 'concerned' in the carrying, of gold to East Pakistan and further that in that case the burden of proof of lawful excuse for such an act was on the appellants. The appellants have not discharged that burden and in his submission they wei e rightly convicted. In this context the two sections may usefully be reproduced:- "Section 167(81). If the 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, any goods which have been unlawfully removed from a warehouse, or which are chargeable with duty which has not been paid, or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened; or ' If any person is in relation to any such goods in any way, without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods ; and ' Section 212.-If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such parson having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if the goods were found such person."
28. ' A bare reading of the above provisions, shows, that the argment which is attempted to be built on an interpretation of the word 'concerned' with regard to the two appellants is hardly well concieved.
29. In its legal conception the word 'concerned' would be applicable to the case of a person who in fact is involved in the act and is actually engaged in the activity for which he is tried. The accused in order to be concerned must be shown to have specific knowledge and must also be consciously taking part in the prohibited act. In the present case there is not an iota of evidence to show or even to suggest that the appellants were really associated with the act of taking gold to East Pakistan.
30. ' They cannot be therefore held to be concerned with any such activity within the meaning of the provisions quoted above.
31. ' In the result the two appeals are allowed by this single judgment and the appellants acquitted.
32. They are already on bail and their bail bonds are cancelled.