ABDUL HAMEED DOGAR, J.- By this common judgment, I propose to dispose of. Cr. Appeals Nos. 72 and 73 of 1996 as they arise out of the same judgment.
2. These appeals are directed against the judgment dated 26.6.1996 of the learned Special Judge (Central-II), Karachi whereby the appellants Waseemul Haque and Muhammad Aslam Khan were convicted and sentenced to suffer R.I. For three years and to pay fine of Rs.2,00,000/- each or in default whereof to suffer further R.I. For six months under Section 5(2) of the Prevention of Corruption Act, 1947 (PCA 1947). They were, however, given benefit of Section 382-B, Cr.P.C, towards computation of their sentence.
3. Precisely, the facts of the case against the appellants are, that F.I.R. No. 2/1990 was got registered against them by Mr. Khaliquzzaman, A.D. F.I.A. CC-I, Karachi under Section 165-A, P.P.C, read with Section 5(2) of the PCA 1947 on the complaint in writing of Mr. Shabbirul Hassan Zaidi, Security Officer A' Company Commander, Airport Security Force, Karachi Airport.
4. In-the above complaint it is stated that on 17.10.1990 at about 1120 hours A.S. Staff consisting of A.S.O. Saifullah Dodani, Inspector Sikandar Ali, S.I. Afzal Mehdi and A.S.I. Mujahid Pervaiz were detailed at the International departure hold baggage from 0800 hours to 1400 hours, and at about 1120 hours they detected one passenger namely accused Misbahul Hussain Zaidi resident of Karachi holding Pakistani Passport No. GO 10649 scheduled to depart for Dubai by flight EK-601 after having been cleared by the Customs. During the search by A.S.F. Staff, huge quantity of currency of different countries were recovered from his hand-bag. The matter was reported to the Company Commander Shabbirul Hassan Zaidi who arrived at the spot and conducted the search of the carton in presence of Inspector Badshah Khattak and Nawaz Shaikh and found foreign currency of different denominations, details of which have been given in the F.I.R., worth Rs.1,00,00,000/- (Rupees One Crore). The currency alongwith the ticket an the passport was seized under mashirnama at the spot in presence of the above mashirs.
5. Mr. Khaleequzzaman, A.D. F.I.A, started with the investigation of the case and arrested accused Misbahul Hassan Zaidi who volunteered to record his statement under Section 164, Cr.P.C, which was accordingly recorded by A.C.M. East Karachi. According to the case of the prosecution, it transpired during the investigation that the above-mentioned currency was being smuggled out of Pakistan with the connivance of the appellants. Appellants were also arrested and notice under Section 171 of Customs Act, 1947 was served upon them. Later on accused Muhammad Qasim surrendered but co-accused Muhammad Azam alias Chand could not be arrested and was declared absconder. Initially, (interim challan) was submitted on 1.11.1990 and later on final challan was produced on 16.12.1993 and thereafter the trial proceeded.
6. Formal charge was framed against the appellants and co-accused Muhammad Qasim but charge could not be framed against accused Mishabul Hassan Zaidi who had expired by that time.
The accused/appellants pleaded not guilty and claimed trial.
7., At trial prosecution examined Muhammad Uzair, Clerk for, Customs who produced certain documents, Aqil Ahmed Qureshi who produced mashirnama of recovery and a letter of Chief Security Officer, Muhammad Masood Iqbal who arrested accused/appellant Muhammad Aslam.
He produced mashirnama of arrest, Abdul Khaliq, an officer of ASF, Sikandar Ali, Security Officer of AS.F, Nawaz Shaikh, Muhammad Shafi, Merchant Director Harrow Travel Agency, Shahzada Ali Naqvi, A.C.M., Khaliquzzaman, I.O/complainant.
8. Statements of accused/appellants Wasimul Haque and Muhammad Asiam were recorded under Section 342, Cr.P.C. Appellant Wasimul Haque in his statement admitted that at the time of incident he was posted as public servant at Karachi Airport but denied the commission of the offence charged against him. According to him, he was posted as P.R.O. And in support he produced copy of register. He also produced certain other documents including the judgment in Case No. 120/1990 passed by the Special Judge, Customs and Taxation, Karachi in proof that he alongwith others were acquitted of the same charges as levelled in this case. Appellant also admitted his posting as Superintendent at Karachi Airport on 17.10.1990 but denied that he had helped accused Mishabul Hussain Zaidi in the smuggling of foreign currency. According to him, when case was detected he went and asked ASF staff to hand over the case to Custom as per rules but they refused whereupon strong heated arguments took place between him and ASF staff which gave rise to his false implication in this case. He further stated that there had been enmity and dispute between Custom people and ASF, therefore he was falsely implicated in the case.
Appellants neither examined themselves on oath under Section 340(2) Cr.P.C, nor examined any other person in defence.
9. The trial Court framed the following points for determination :-
(1) Whether accused Muhammad Qasim with absconding accused Muhammad Azam @ Chand Mian and accused Misbahul Hassan Zaidi (since dead) on 17-10-1990 abetted the offence of criminal misconduct and abuse of official position of Muhammad Aslam Supdt. Customs and Waseemul Haque Preventive Officer in their joint attempt of smuggling huge currency of different countries belonging to accused Muhammad Qasim and Muhammad Azam @ Chand Mian illegally?
(2) Whether accused Muhammad Aslam and Waseemul Haque in capacity of public servants as Supdt: and Preventive Officer misused their official position in attempt to smuggle the huge currency by allowing co-accused Misbahul Hassan Zaidi (since dead) to pass through custom clearance and ASF Counter?
(3) What shall the judgment be?
10. On the assessm ent of evidence, appellants were found guilty and were convicted and sentenced as stated above whereas accused Muhammad Qasim was acquitted.
11. I have heard Mr. Nasir Hussain Jafri on behalf of the appellants and Mr. Musheer Alam, Standing Counsel on behalf of the State at length and have gone through the record and proceedings of the case.
12. It is contended by Mr. Nasir Hussain Jafri that the impugned judgment is bad in law, based on wrong tacts and is perverse. Learned Judge, while, convicting the appellants has misread as well as not apprised the evidence on record and has failed to take into consideration the facts that the appellants were challaned in the same crime before the Court of learned Special Judge (Customs and Taxation) Karachi and were honourably acquitted on 8.1.1994 exactly on the same charges.
According to him, once the charges against the appellants are proved false by a competent Court of law, they cannot be convicted on the same charges by another Court of law. According to him, in view of Articles 9 and 19 of the Constitution of Islamic Republic of Pakistan and the law laid down under Section 403, Cr.P.C., the above-mentioned conviction is bad in law and is not sustainable. He further contended that the witnesses-as well as the documents produced before the Special Judge, Customs and Taxation and that produced before the trial Court are exactly the same and identical in nature so much so that the photo copies of the documents of the previous case have been placed on record in the case in hand by the trial Court. Section 403 contemplates that a person once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made. Applying this principle in the present case, Mr. Jafri submits that the appellants once tried and acquitted for the same charges by the Special Judge, Customs and Taxation, Karachi, could not be tried again for the same charges by the trial Court. In support he has placed reliance on the decisions reported in A.I.R. 1965 S.C. 87 and PLD 1980 Karachi 286.
13. The learned counsel for the appellants next argued that the entire conviction is based on presumption and assumption and that there is neither direct nor indirect-evidence collected against the appellants by the prosecution. According to hm, the appellants' name have neither been mentioned in the written complaint of the complainant, nor find place in the mashirnama of seizure initially prepared at the spot nor the subsequent mashirnama prepared in the office of the complainant nor in the F.I.R., as such the subsequent disclosure by the complainant and P.Ws, at trial, would be a clear exaggeration tainted with malafide and loses the entire value. According to the counsel, even presence of the appellant on duty at the time of incident at the Airport has not been mentioned in the above-mentioned documents, as such they cannot be said to be responsible for convincing the offence with' the main accused. According to him, in this case, conviction has been mainly based on the confession of the deceased accused Misbahul Hassan Zaidi who in his confessional statement has disclosed that he was smuggling the afore-mentioned foreign currency at the behest of co-accused Muhammad Qasim. It was he who disclosed that he had made arrangement with the appellants, the custom officials, at the Airport who would arrange for his departure. The said main accused Muhammad Qasim to whom the currency belonged and who disclosed the names of the appellants to accused Misbahul. Hassan Zaidi, has been acquitted by the trial Court, as such the entire confession becomes of doubtful nature and should not be considered against the appellants. He has further contended that during the investigation it was disclosed that certain samples were taken from the above- mentioned currency but neither description and denominations of the same were ever mentioned any where nor the said samples were sealed, so much so that the recovered currency was never produced before the trial Court during the entire evidence, as such the conviction cannot be justified. The advocate for the appellants referred to the very lodging of the F.I.R, and contended that at the moment it was registered Sections 5(2) of the PC A 1947 were mentioned therein whereas the case of the prosecution as disclosed during the investigation is that from the confessional statement of deceased accused Misbahul Hassan Zaidi, it transpired for the first time that appellants, being public servants, on duty at the Airport at the time of the incident, committed criminal misconduct by abusing their official position in helping the deceased accused in smuggling the huge quantity of foreign currency, tenders the entire case of the prosecution to be false and tainted with mala fide. He lastly contended that even the statement of the appellants recorded under Section 342, Cr.P.C, is highly defective in so much so, that the questions with regard to the confessional statement of deceased accused Misbahul Hassan, the basis of the conviction, has not been put to them. The moment this incriminating piece of evidence having not been put to the appellants, in.
Their statements, such confessional statement loses its value and the prosecution allegation cannot be taken into consideration against them. In support he relied upon the decisions reported in 1975 P.Cr.L.J. 440, 1983 P.Cr.L.J. 892.
14. On the other side, Mr. Musheer Alam, Standing Counsel frankly conceded to the arguments of the appellants' counsel and admitted that important incriminating piece of evidence has not been put to the appellants in their statement under Section 342, Cr.P.C., hence the entire prosecution case loses its value and by that way an illegality not curable under Section 537, Cr.P.C, has been committed.
15. Admittedly the appellants were separately challaned on the basis of this case before the learned Special Judge (Customs and Taxation) Karachi and were acquitted. In these circumstances it is to be sen as to whether appellants against whom the same charges were proved false by competent Court of law can be convicted on the same charges by another Court of law. In this case as well as in the above referred case before the Customs Court not only the same witnesses were examined but the documents produced before that Court were brought on record of this case in the shape of its photo-stat through P.W. Muhammad Uzair, Clerk of the said Court. Section 403, Cr.P.C, deals with the person once convicted or acquitted not to be tried for same offence. For proper appraisement a reference is made to sub-section (1) of Section 403, Cr.P.C.
Section 403 (1)
"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence ' shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237."
The findings of acquittal by Special Court (Customs and Taxation) in favour of appellants still exists and remains in force and has not been set aside. As such keeping the dictum laid down in above provision of law appellants cannot be tried for offence already adjudicated of evidence to prove the facts about which specific findings had already been recorded at an earlier trial before competent Court of law. The Hon'ble Supreme Court of India in the case of Manipur Administrative v. Bira Singh reported in AIR 1965 SC 87 has dealt with the same subject-matter and has held at para 7 as under: "It should, however, be noticed that sub-sections (1) to (3) of this section deal with the trial of an accused for an offence and his conviction therefore. The question raised for decision in Pritam Singh's case, (S) AIR 1956 SC 415 however was different and was whether where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding Would constitute an estoppel or resjudicata against the prosecution not as. a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of ' S. 403(2)."
Same view has been followed by a Division Bench of this Court in the case of Ismail A. Rehman v.
Muhammad Sadiq and 3 others (PLD 1990 Kar. 286), wherein it has been observed as under: "S. 403-Constitution of Pakistan (1973), Art. 13-Rule of "Autrefois acquit"-Essentials to get benefit of S. 403, Cr.P.C, or Article 13, Constitution of Pakistan (1973) are that the parties in the two trials must be the same and the fact in issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial."
It would be preferable to refer here the evidence of P.W. No. 1 Muhammad Uzair the Clerk of Special Court No. 1 (Customs and Taxation) Karachi, who had brought the record and proceedings of case file No. 126/90 (State v. Misbahul Hassan Zaidi and others) from FIR No. 12/90 of FIR CC-I Karachi and produced the photo-copies of all the documents exhibited in the earlier trial ranging from Ex.17 to Ex.114 i.e. Page 145 to 231. It is pertinent to note that this witness was neither examined in presence of appellants nor any opportunity was provided to them to cross-examine him. So much so his name was not included among the PWs. In challan, but was suo motu called and examined by the trial Court.
Looking this view of matter in the light of dictum laid down in the above- referred cases the rule that where an issue of fact has been tried by competent Court in a previous trial and the finding has been reached in favour of accused precludes the reception of evidence to disturb with finding by way of subsequent trial is fully attracted in this case too. Thus conviction and sentence recorded as referred above by the trial Court was not justified.
Adverting to the next important point that neither appellants were nominated in FIR nor their names appeared in the memo of occurrence prepared at the spot or in one subsequently prepared with regard to recovery of huge amounts of foreign currency by Mr. Shabbirul Hassan Zaidi, Company. Commander of ASF, as such, their further involvement in the case is an exaggeration created mala finely, is bound to be ignored. In the above referred documents nothing has been said that the appellants had even connived with the main accused, namely, deceased'
Muhammad Qasim in the smuggling of the aforesaid foreign currency and had approached ASF Staff posted at the Airport to clear the baggage of deceased Misbahul Hassan Zaidi without his physical examination. In the absence of documentary piece of evidence the subsequent statement of P.W. Sikandar Ali and complainant Shabbirul Hassan Zaidi and at the trial to the above fact is mere an exaggeration and improvement and have no value in the eye of law and cannot be relied for the purpose of conviction. Moreover it is established on the record that.
Appellant Waseemul Haq \;as performing his duties as Preventive Officer, whereas Muhammad Aslam as Superintendent, Customs at the time of incident and it was not within their power to examine and check the baggage of any passenger and also that the prosecution has not brought on record the evidence to prove that they were posted" so under any extra ordinary circumstances at- that particular time. In these circumstances the defence version that the appellants were involved in the case due to professional rivalry and that the main accused Misbahul Hassan Zaidi apprehended by ASF persons were asked to be handed over alongwith baggage to the customs authorities which they refused, has sufficient force and cannot easily be ignored. The version taken by appellants in their statement under Section 342, Cr.P.C, at trial to the effect that they have asked ASF people to hand over the case to them as per rules and on their refusal the occurred exchange of harsh words was totally ignored. The fact that ASF person have no concern and had no jurisdiction to register, arrest or investigate any case arising out of Customs Act gets support from the judgment of learned Special Judge Customs produced by appellants in their statement. A such I am of considered opinion that appellants have been falsely implicated by the ASF persons subsequently with some ulterior motive. The most important aspect of the case that on the basis of confessional statement of deceased accused Misbahul Hasan Zaidi has not been tackled by the trial Court properly and has placed a wrong reliance on such confessional statement. In the said confessional statement deceased accused Misbahul Hassan Zaidi had seated that he was taking away currency out of Pakistan on the behest of co-accused Muhammad Qasim to whom same belonged and was famous smuggler of foreign currency having house at Clifton Karachi. When he arrived there co-accused Chand Mian handed over him ticket and the carton containing the said currency and disclosed him that he will be got cleared by the appellants at the Airport. By acquitting the main accused Muhammad Qasim, placing reliance on such confessional statement and convicting the appellants is highly unjustified. In this case the principal accused the author of confessional statement-had expired, whereas another important co-accused, namely. Chand Mian was never arrested and produced at trial as such in the absence of their statements recorded at trial reliance on such confessional statement against appellants would be without any foundation. The said confession recorded after for days of arrest of accused Misbahul Hassan Zaidi even otherwise losses its evidentiary value as has been held by the Division Benches of this Court in the cases of Took r. The State reported in 1975 P.Cr.L.J. 440 and Hamza and others v. The State, 1983 P.Cr.L.J. 892. Wherein it has been held that the confession recorded after three days of arrest is ruled out of consideration.
Above all the important piece of incriminating of evidence with regards to the confessional statement referred above having not been put to the appellants in their statements under Section 342-. Cr.P.C, looses its value and should not be taken as an implicating piece of evidence warranting their conviction.
For the reasons recorded above, I am of the considered opinion that prosecution has miserably failed to prove the charges against the appellants. Their appeals are allowed and they are acquitted and their conviction and sentence is set aside. These are the reasons of the short order dated 11-9-1998.