MRS. JUSTICE KHALIDA RACHID.-(l). On the basis of judgment, dated 4.10.2000, the learned Special Judge (Central) Customs Taxation and Anti-Smuggling, N.-W.F.P., Peshawar convicted and sentenced the appellants/accused as under:-
(i) Haji Hafizullah and Zaffar Iqbal accused Each accused for each offence under sections 156(1)(8), 178, and 2(s), and under sections 156(1)(89), 178, 2(s) and under sections 156(1)(92), 178 read with section 2(s) of the Customs Act, 1969 to one and a half years imprisonment and a fine of Rs. 20,000 in default of payment of fine, each of the accused for each offence will suffer two/two months' S.I.
(ii) Muhammad Ayub Nawaz for each offence under sections 156(1)(8), 178 and 2(s), under sections 156(1)(89), 178 and 2(s) of the Customs Act, 1969 to one and a half years imprisonment and fine of Rs. 50,000 in default of payment of fine, he will suffer two months' S.I. For each section of law noted above.
(iii) Muhammad Faruq Afridi for each offence under sections 156(1)(8), 178 and 2(s) under sections 156(1)(89), 178 and 2(s) and under sections 156(1)(81)(82), 178 and 2(s) of the Customs Act to one year's imprisonment and a fine of Rs. 1,00,000, in default of payment of fine, he has to suffer six months' S.I. For each offence, and
(iv) Muhammad Nawaz for imprisonment of two and a half years and fine of Rs. 2,00,000 in default of payment of fine, he has to suffer two years' S.I. Under each sections of law i.e. Under sections 156(1)(8), 178 and 2(s), under sections 156(1)(89), 178 and 2(s) as well as under sections 156(1)(92), 178 and 2(s) of the Customs Act, 1969.
While accused namely Muhammad Shafiq (Customs Clearing Agent), Nadar Khan (Senior Intelligence Officer, Directorate of Customs Intelligence and Investigation, Peshawar), Akhlaq Ahmad Khattak, (Deputy Collector Customs/Incharge Export and Anti-Smuggling Division, Peshawar), Haji Suleman, Haji Nazeer, (owners of Swat Art Gallery), and Aurangzeb, (Deputy Superintendent, Customs Airport, Peshawar) were acquitted of the charges leveled against them.
However, accused Jalandar Shah and Haji Khalil Afghani were declared absconders. Aggrieved of their convictions and sentence, the convicted accused/appellants herein filed Criminal Appeals Nos. 421 of 2000 (Muhammad Faruq Afridi v. State), 434 of 2000 (Zaffar Iqbal v. State), 441 of 2000 (Haji Hafizullah v. State), 462 of 2000 (Muhammad Ayub Nawaz v. State) and 484 of 2000 (Muhammad Nawaz Khan v. State). Dissatisfied with the quantum of sentence awarded to the appellants, the State has also moved Criminal Revision No. 101 of 2000 (State v. Haji Hafizullah and others) for the enhancement of the sentence. All the aforesaid appeals and criminal revision have arisen from the same judgment, and are the outcome of F.I.R. No. 44, dated 17.5.1999 under sections 156(1)(8)(89)(79)(81), (82), (92), 178 and 2(s) of the Customs Act, 1969 registered in Police Station, Investigation and Prosecution Branch, Peshawar, they are, therefore, disposed of by this consolidated judgment.
2. Briefly given facts of the case are, that on 16.5.1999, on a tip-off, that antiques would be smuggled out of the country through P.I.A. Flight PK-137, at about 19-00 hours, the staff of Customs Mobile Squad No. 1, Peshawar held a picket at University Road near "Gora Qabirstan". In the meantime P.I.A.
Cargo van bearing Registration No. B-1705/N.-W.F.P, driven by Haji Hafizullah (appellant) driver P.I.A.
Airport and accompanied by Zafar Iqbal (appellant), security guard P.I.A. Peshawar was sighted coming from the direction of Tehkal. It was signaled to stop by the Customs Officials but it sped up, thus, defying the signal. However, it was made to stop at the Khyber Road near F.G. Public School Cantt. The van was found loaded with 5 steel boxes and one wooden box. Cursory search of the boxes detected concealment of antiques therein. Detailed checking of the six containers in the office of Customs Mobile Squad No. 1 situated at Railway Road led to recovery of valuable antiques, detailed in the recovery memo., worth millions of rupees. Airway bills and shipping bills etc. Were also taken into possession from Zafar Iqbal (appellant). Haji Hafizullah (appellant) driver and his companion Zafar Iqbal (appellant) could not account for lawful possession and transportation of the antiques in question, therefore, they were arrested. During the preliminary interrogation, the arrested accused disclosed that the seized antiques were loaded from a bungalow located in University Town, Peshawar in the presence of Muhammad Nawaz. Subsequently, Muhammad Nawaz (appellant) who was found present outside the office of Mobile Squad No. 1 was arrested.
Muhammad Ayub Nawaz, Security Manager, P.I.A, (appellant) who had come to the office of the seizing agency to inquiry about P.I.A, van, was also arrested. After necessary investigation, challan against the aforesaid four persons and also against the remaining accused whose names were disclosed by the arrested accused during the course of investigation to be their associates, were presented in the Court of Special Judge (Central), Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar.
3. The learned Special Judge Customs, Taxation and Anti- Smuggling, Peshawar examined as many as nine witnesses in support of the prosecution case. The learned Special Judge also recorded the statements of the accused under section 342, Cr. P.C.
4. Saifur Rehman, Inspector, Customs (P.W.1) is the complainant. He reiterated the same story as narrated by him in his Murasila (Exh. P.W.1./17). He recovered the antiques in question in the presence of Hafizullah, driver, and Zaffar Iqbal, Security Guard of P.I.A, (appellants) and Akhlaq Ahmad Khattak, Deputy Collector Customs (acquitted accused) who had reached this office after receiving a telephone call from Furqan Mahmood, Inspector, Customs. After the examination of the antiques in question by the Expert of Archaeology and Museum Department confirming them to be antiques through Certificate (Exh. P.W.7/1), he prepared inventory of the antiques (Exh. P.W. 1/15).
The airway and shipping bills produced by Zaffar Iqbal (appellant) were also taken into possession vide recovery memo. (Exh. P.W. 1/1). It was disclosed to him by Hafizullah, driver and Zaffar Iqbal, Security Guard (appellants) during the course of interrogation that the seized antiques were loaded in official van of P.I.A, from Bungalow No. 16-C Park Lane, University Town, Peshawar under the direction of Muhammad Ayub Nawaz, Security Manager, P.I.A. Peshawar Airport (appellant).
Narrating the background of arrest of Muhammad Ayub Nawaz, Security Manager and Muhammad Nawaz, Customs Clearing Agent P.W. Saifur Rehman stated that Muhammad Ayub Nawaz, (appellant), was arrested soon after the seizure when he visited his .Office to inquire about the' official van. Similarly, Malik Azam, Inspector Customs arrested Muhammad Nawaz (appellant)
Customs Clearing Agent, the same evening from the premises of office of the Mobile Squad No. 1.
He deposed that Muhammad Nawaz, Customs Clearing Agent (appellant) during the course of interrogation had admitted to be the owner of the antiques in question which he intended to smuggle abroad with the connivance of Muhammad Ayub Nawaz, Security Manager, P.I.A, (appellant) and Faruq Afridi, Customs Inspector (appellant) for a consideration of Rs. 65,000 and Rs. 50,000 per box respectively. It is further stated that after the admittance of Muhammad Nawaz (appellant), that shipping and airway bills were bogus, he recovered stamps/seals from his (Muhammad Nawaz) office situated in Al-Mansoor Medical Market, Namak Mandi, Peshawar at his pointation vide recovery memo. Exh. P.W. 1/16. Shahid Raza Sepoy (P.W.2) is the marginal witness to different memos, prepared by Saifur Rehman, Investigating Officer (P.W.1). He fully supported and corroborated the statements of Saifur Rehman (P.W.1). Atta Muhammad, Inspector, Peshawar Airport (P.W. 3) conducted the investigation from 20.5.1999 on ward. He recorded the statements of all four arrested accused. He alongwith Saifur Rehman (P.W.1) accompanied Muhammad Nawaz, Hafizullah and Zafar Iqbal (appellants) to Bungalow No. 16-C, Park Lane, University Town, wherefrom the antiques in question were loaded. He prepared the memo. Exh. P.W.3/1, then visited the shop of Haji Nazeer and Haji Suleman (acquitted accused) situated at Fort Road near Greens Hotel at their pointation of Muhammad Nawaz vide memo. (Exh. P.W.3/2), disclosing to be the real owners of the antiques in question. Muhammad Nawaz (appellant) and Atta Muhammad (P.W.3) also recorded statement of Haji Nazeer and Haji Suleman (acquitted accused) after they obtained their B.B.A.
Was not confirmed by the trial Court. During the course of interrogation, Muhammad Nawaz, (appellant) disclosed to him that prior to this occurrence, Muhammad Faruq Afridi (appellant) had illegally exported a consignment of antiques to Dubai owned by one Furqan Aziz with the connivance of Muhammad Akhlaq Khattak (acquitted accused). Amanullah, Inspector/Incharge State Warehouse Godown (P.W.4) produced the register showing the deposit of official P.I.A, vehicle Toyota Hilux pick-up No. N.-W.F.P. B- 1705 in State Warehouse. Ghulam Farid, Deputy Superintendent Customs (P.W.5) deposited the antique in question in the State Bank of Pakistan vide receipt (Exh.
P.W.5/2). Muhammad Qadar Sepoy Customs House, Peshawar (P.W.6) is the marginal witness to recovery memo. Exh. P.W. 1/16 on the basis of which the Investigating Officer (Saifur Rehman) took into possession two bogus seals at the pointation of Muhammad Nawaz (appellant). Dr. Muhammad Ashraf (P.W.7) is Assistant Director, Department of Archaeology and Museum. Irshad Hussain (P.W.8). Assistant Director Archaeology and Museum Department had checked the goods in question contained in six boxes and verified and confirmed to be antiques through Certificate Exh. P.W.7/1. The statements of the accused were recorded under section 342, Cr. P.C. Their plea was complete innocence. Some of them claimed false implication because of professional jealousy, intrigue and conspiracy.
5. After assessing and appreciating the evidence, the learned Special Judge, Customs passed the sentences aforementioned.
6. Mr. Abdul Samad Khan, Advocate argued the case of Muhammad Ayub Nawaz (appellant), Khawaja Muhammad Khan, Advocate, appeared for Muhammad Faruq Afridi, Mr. Javed A. Khan, Advocate, appeared for Muhammad Nawaz and Barrister Bacha and Sayyed Wilayat Ali Shah advocated for Hafizullah and Zaffar Iqbal respectively.
7. The learned counsel for the appellants rendered lengthy arguments before me. The common arguments of the learned counsel for all the appellants lead to following main points, firstly, that the inordinate delay in recording of the F.I.R., had impaired the prosecution case, therefore, conviction of the appellants is bad in the eye of law. It was argued that the antiques in question were seized on 16.5.1999 at 7-00 p.m. While report was recorded on the following day at noon time thereby causing delay of seventeen hours and such a disproportionate delay has damaged the prosecution case. It was further argued that the recovery of the seized antiques was defective as none from the public has been associated with the recovery proceedings. It was also argued that as per F.I.R. (P.W. 1/17) the antiques in question were to be smuggled through Flight PK-137 on 16.5.1999, which was scheduled for departure at 6.30 p.m. On 16.5.1999 while seizure of the antiques was shown at 7-00 p.m. The same day, therefore, the export of the antiques was humanly impossible through Flight PK-137. It was also submitted that it is a case of dishonest investigation inasmuch as the inquiry conducted by the two Investigating Officers is not only contradictory inter se but also against their own evidence as well as prosecution evidence recorded by the trial Court.
It is further maintained that in the F.I.R., the antiques in question are stated to be smuggled through P.I.A. Flight PK-137 whereas in the charge framed by the trial Court, the antique in questions were alleged to be smuggled through Shaheen Airlines while the airway and shipping bills pertained to Gulf Airlines, therefore, in view of this variance, the conviction of the appellants cannot be sustained.
8. The learned counsel for appellants Muhammad Ayub Nawaz, Muhammad Nawaz and Muhammad Faruq Afridi vehemently contended that the evidence produced by the prosecution is not enough to legitimately maintain the conviction of their clients as the conviction has been made on the basis of statements recorded under section 161, Cr. P.C. And under section 342, Cr. P.C.
Of the co-accused in the eye of law have no evidentiary value.
9. Arguing the case independently Mr. Abdul Samad Khan, counsel for Muhammad Ayub Nawaz, submitted that the judgment has not been delivered on cogent reasons but only on surmises and conjectures, hence unsustainable in law, therefore, liable to be struck down. Khawaja Muhammad Khan, Advocate, arguing the case of Muhammad Faruq Afridi (appellant) submitted that there is no evidence to connect Muhammad Faruq Afridi with the commission of the offence. The leaned counsel urged that in the absence of substantive proof, the appellant cannot be convicted on the strength of statements under section 161, Cr. P.C. And statements of the co-accused. He was adamant that his client was made involved in the case falsely through conspiracy of departmental trickery. It was insisted fact that Bungalow No. 16-C, Park Lane, University Town, Peshawar wherefrom the antiques in question were loaded was not owned by them, but it belonged to Muhammad Fayyaz brother of Muhammad Faruq Afridi (appellant) and rented out to Muhammad Nawaz (appellant) through rent deed.
10. Mr. Javed A. Khan, Advocate for Muhammad Nawaz (appellant) Customs Clearing Agent, submitted that his presence at the bungalow at the time of loading of antiques could not be proved as the Chowkidar of the bungalow allegedly present at the time of loading was never examined in the Court. The learned counsel also argued that no such act of smuggling of antiques has ever taken place and that it was for this reason the trial Court did not allow the prayer of Muhammad Nawaz (appellant) to produce the P.I.A, van in question along with the seized goods in the Court so as to ascertain that the goods could be housed in the van which denial tantamount to condemn him unheard and denying Muhammad Nawaz the right of self-defence.
11. Barrister Bacha and Sayyed Wilayat Ali Shah, Advocates' arguing the case for Hafizullah, Driver (appellant) and Zaffar Iqbal (appellant) though admitted the seizure and recovery of the antiques in question from P.I.A, van, but alleged that the appellants Hafizullah and Zaffar Iqbal did not know about the contents of the boxes seized and that they had loaded the boxes from the Bungalow No. 16-C, Park Lane, University Town, under the orders of their boss Muhammad Ayub Nawaz appellant who had directed them to fetch the goods from the said Bungalow. It was asserted that in the absence of mens rea the said two appellants could not be held guilty of the offence of smuggling of antiques.
12. Mr. Abdul Latif Yousafzai, Advocate on the contrary, controverted the submissions of the learned counsel for the appellants, vehemently. He submitted that there was ample evidence, circumstantial, documentary and ocular to connect the appellants with the commission of the offence.
13. I have anxiously considered the submissions of the learned counsel for the parties and gone through the record carefully.
14. I am not persuaded to convince myself with the contentions of the learned counsel for the appellants that delayed report has created dent in the prosecution case. As observed above, the official van containing the boxes of antiques was intercepted at the roadside at evening hours. It was then moved to the office of seizing agency Mobile Squad No. 1 for detailed checking. It is in the evidence that after the seizure, the Senior Customs Officers were informed and upon their arrival at the office, the boxes were opened and recovery of 100 pieces of fine precious antiques, required to be handled diligently, were made. They were counted, identified, labeled and defined vide inventory recovery memo. (Exh. P.W. 1/16). The experts from the department of Archaeology and Museum were summoned who examined and checked the goods to be antiques whereafter certificates (Exh. P.W.3/24 and Exh. P.W. 7/1) were issued. Thereafter, the goods were repacked in the boxes. This whole process is time consuming and must have taken sufficient time to complete the above formalities, plus non-working hours of the night falling between 16 and 17 of May, 1999, could be adequate reasons to cause impediment in the prompt recording of F.I.R. I may mention here that expeditious recording of F.I.R, may be material in criminal cases like kidnapping, murder etc. Where F.I.R, is normally made by the alleged eye-witness so as to exclude any possibility of consultation and false involvement but in case like the one in hand, the element of doubt of false implication is minimum.
15. Reverting to the next contention i.e. The non-compliance of provision of section 103, Cr. P.C. It is very seldom that any public witness would volunteer to be associated with the recovery proceedings of such fine items as he would never like to incur enmity of the smugglers/mafia. The main aim and object of enacting of section 103, Cr. P.C. Is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression.
It never meant to disbelieve the statements of the official witnesses under any circumstances. It has been consistent view of the august Supreme Court of Pakistan that the official witnesses are as good as private witnesses. Coming to the third contention of the learned counsel for the appellants that interception of P.I.A, van containing antiques on 16.5.1999 at 7-00 a.m. Via Flight No. PK-137 through which the consignment was to be exported abroad was scheduled to leave Peshawar at 6-30 p.m., has no merit. In the F.I.R., it is alleged that the Customs Authorities, had prior information, received by Collector Customs that antiques would be exported through PK-137. However, the maker of the F.I.R., Saifur Rehman (P.W. 1) in his statement before the trial Court has blotted out this portion of F.I.R, and stated that prior information received by the seniors/high-ups is usually mentioned out of courtesy and to please their seniors only. Be that as it may, it was just an information which may or may not be correct. As to the Gulf Airlines mentioned in the airway bills etc., it is in the evidence that they were prepared fraudulently by Customs Clearing Agency to dodge the seizing agency en-route to airport, since they were forged airway bills and meant for deceiving the seizing agency en-route to airport, mention of flight number is irrelevant. There could be no denial of the fact that after having admitted by Haji Hafizullah, driver and Zaffar Iqbal that the van in question was intercepted near F.G. Public School, the only route leading to airport, it cannot be doubted that P.I.A, van was containing antiques. As to the dishonest investigation by the two Investigating Officers there are some minor irregularities in the statements of some prosecution witnesses which appear to have been made intentionally only to accommodate and given concession to the appellants who are their colleagues but such flaws in the statements are ignorable and cannot be considered to be fatal to the prosecution case.
16. As to the contention that statements of appellants under section 161, Cr. P.C. And statements of co-accused recorded under section 342, Cr. P.C. Have no evidentiary value, I have no reason to grudge the claim of the learned counsel for the appellants. Though section 30 of the Evidence Act now Article 43 of the Qanun-e-Shahadat permits that the confessions made by one accused could be used against his co-accused but unfortunately in this case the Investigating Officer did not care to record the confessional statements under section 164, Cr. P.C. Or 364, Cr. P.C. Of accused Haji Hafizullah and Zafar Iqbal who have consistently admitted and confessed the recovery of seized antiques from official van, under the directions of their superiors, Muhammad Ayub Nawaz, appellant, for obvious reason that they wanted to leave loopholes, though negligible, in the prosecution case to help their colleagues officials in the case. Even otherwise, the confessional statements of the appellants made before the Customs Authorities cannot be hit by section 25 of Evidence Act now Article 38 of the Qanun-e-Shahadat, for, they cannot be termed as statements under section 161, Cr. P.C. For they need not to be signed by the maker under section 162, Cr. P.C. In fact the said statements were made under section 165 of Customs Act, I 1969. There is a difference in the statement under section 161, Cr. P.C. Recorded by the police and those recorded under section 165, Customs Act by Customs Authorities. As the former is not signed by the accused and could be the result of aggravated force, provocation, threat or dishonesty, while the statement recorded (under section 165, Customs Act are signed by the accused, I confirming the authenticity of the statement. It is apparent from the record that statements of the appellants recorded by Customs Official/Investigating Officer are duly signed in token of its correctness and genuineness.
In the similar situation, the august Supreme Court of India in the case of Vallabhdas v. Assistant Collector of Customs AIR 1965 SC 481 held that where, in a case of smuggled goods, the accused persons made statements before the Customs Authorities, which were signed not only by their lawyers but also by the accused themselves and during the trial the signatures were admitted by the accused but the lawyer was not examined to prove them, the statements must be held to be proved by this admission and it was not further necessary to examine the lawyer as they were not made on account of any inducement threat or promise and would be admissible under section 24 of Evidence Act, 1872 as Customs Officers are not Police Officers. The issue whether Customs Officer are not the Police Officer within the meaning of section 25 of the Evidence Act, 1872 has been thrashed out in depth by the august Supreme Court of India in the case of State of Punjab v. Barkat Ram AIR 1962 Supreme Court 276. Wherein Superintendent Land Customs, Amritsar, arrested Barkat Ram, engine driver of the train, coming to Amritsar from Lahore, Pakistan for smuggling of 100 Tolas gold hidden underneath the coal in the tender of the engine. He was taken to Customs Office for interrogation whereupon Barkat Ram disclosed that the gold was for delivery to one Ghulam Muhammad. Consequently, Ghulam Muhammad was also arrested. Both the accused, during the course of inquiry, made statements before the Customs Officials admitting their guilt. At the trial, both the accused were convicted and sentenced by Additional District Magistrate, Amritsar. The appeal before the Additional Sessions Judge, Amritsar also failed. Accused went in revision before the High Court, Amritsar. Apart from the statement made the Customs Officials admitting their guilt, there was no other evidence connecting them with commission of the offence. The High Court Amritsar allowed the revision and set aside the conviction and sentence of Barkat Ram and Ghulam Muhammad on the ground that their confessional statements were hit by section 25 of the Evidence Act. The State filed appeal before the Supreme Court of India were the solitary issue raised was, whether status of Customs Officials is the same as of Police Officials within the parameter of section 25 of Evidence Act, 1872 and that statements made by the accused before the Customs Officials admitting their guilt were admissible in evidence and conviction made thereon was sustainable? The issue was contemplated in detail. The Honourable Members of the Bench, I namely J.L. Kapur and Ragubar Dayal, in view of numerous authorities of the Supreme Court and Superior Courts of India, arrived at the conclusion that the Customs Officials are not the police officials in the criterion of section 25 of the Evidence Act, 1872 whereas Honourable Judge, K.
Subba Rao upheld the order of the High Court, Amritsar, that Customs Officials are police officials within the definition of section 25 of the Evidence Act. However, in view of majority decision, the appeal of the State was allowed overruling the judgment of the High Court, Amritsar. The following observations were made:- "The powers which the Police Officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The words 'Police Officer' are not to be construed in a narrow way, but have to be construed in a wide and popular sense.
The expression 'Police Officer' has, however, not such a wide meaning as to include persons on whom certain police powers are conferred. The Customs Officer is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery' of Customs duties. He is more concerned with the goods and customs duty, then with the offender. The duties of the Customs Officers are very much different from those of the Police Officers and their possessing certain powers, which may have similarity with those of Police Officers, for the purpose of detecting the smuggling of goods and the person responsible for it, would not make them Police Officers. Merely because similar powers in regard to detection of infractions of Customs Laws have been conferred on Officers of the Customs Department as are conferred on Officers of the Police is not a sufficient ground for holding them to be Police Officers within the meaning of section 25 of the Evidence Act. The Customs Officers, when they act under Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially. A Police Officer never acts judicially. Hence a Customs Officer either under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 is not a Police Officer for the purpose of section 25, Evidence Act. Case-law discussed. AIR 1959 Punjab 287, reversed."
17. Taking the cases of the appellants independently, Mr. Javed A. Khan appearing for Muhammad Nawaz, Customs Clearing Agent, argued that Malik Azam allegedly arrested Muhammad Nawaz soon after the occurrence when he was present outside the office of Mobile Squad No. 1 while the Inspector Malik Azam was never produced to verify and confirm his arrest. This argument of the learned counsel for the appellant does not have much weight. There is enough documentary proof that Muhammad Nawaz was arrested from the premises of Office of Mobile Squad No. 1 soon after the occurrence on 16.5.1999. He was produced before the trial Court No. 17.5.1999. After his arrest on 16.5.1999 Muhammad Nawaz led the staff of seizing agency to his office situated at Namak Mandi wherefrom the bogus seals were recovered vide recovery memo. (Exh. P.W. 1/16). It could not be proved that Muhammad Nawaz appellant, per his claim, was arrested from the office of Customs Department as neither any evidence in his defence was produced nor any material qua his alleged arrest was extracted from the P.Ws. Be that as it may, he was undoubtedly arrested from the office of Customs Department of Mobile Squad No. 1. Furthermore, recovery off wo bogus seals of Superintendent from his office reinforced his connection with commission of the offence. Both the aforesaid appellants had categorically stated that at the time of loading of antiques from Bungalow No. 16-C, Muhammad Nawaz was present and handed over to them the airway bills etc. With the direction to be shown to anyone en-route to airport who asked them about the goods in question. Since they were forged airway bills and meant for deceiving the authorities on the way to airport, any mention of flight number is irrelevant.
18. I also do not find force in the contention of Mr. Javed A. Khan that Muhammad Nawaz has nothing to do with the airway bills as they did not bear his signature. The airway bills etc. Were prepared fraudulently by the Customs Clearing Agency known as M.N.I. Which undoubtedly belonged to Muhammad Nawaz under the name Mushtaq Nawaz, International (admittedly Mushtaq is brother of Muhammad Nawaz, appellant). The airway bills are shown to have been drawn by Superintendent, Customs with stamp so as to mislead the seizing agency en-route to the airport. The bogus seals etc. Was recovered from the office of Muhammad Nawaz situated at Namak Mandi at his pointation vide recovery memo. As to the argument that the prayer of the appellant to requisition the van to the Court to demonstrate that the seized goods could not be housed in the van is misconceived and unfounded. It is observed from the evidence that the P.I.A, vehicle alongwith the goods in question were produced before the trial Court. The learned counsel for the appellant did not bother to make such a request at that time. When the evidence was concluded and the case reached the final stage of argument/order, the appellant came up with the present prayer only to gain time and delay the matter. Hafizullah, appellant, who had driven the van and Zaffar Iqbal, security guard, accompanying the driver have admitted categorically that six boxes containing antiques were recovered from P.I.A. Van bearing No. B-1705/N.-W.F.P. In the above circumstances, it is adequately proved that the appellant is connected with the commission of the offence.
19. Next comes the case of appellant Muhammad Faruq Afridi. I equally see no force in the contention of the learned counsel for this appellant that he is falsely involved in the case due to professional jealousy. Rather it is observed from the statements of the P.Ws, especially the Investigating Officers who are colleagues of the appellants that they have made unnecessary concession in favour of the appellants so as to create doubts in the prosecution case. An attempt of smuggling was launched from the Bungalow No. 16-C, Park Lane, University Town, Peshawar, wherefrom six boxes were loaded in P.I.A. Van, owned and occupied by Muhammad Faruq Afridi.
There is no direct evidence against the appellant Muhammad Faruq Afridi qua the ownership of said bungalow, which has also been conceded by the learned Public Prosecutor, still there is sufficient circumstantial evidence which leads us to believe that he was resident of the said house at the time of occurrence. It was claimed that bungalow in question belonged to Muhammad Fayyaz brother of the Faruq Afridi appellant and rented out to Muhammad Nawaz appellant through a rent deed. But the execution has been denied by Muhammad Nawaz (appellant) the alleged tenant and also the executants Muhammad Fayyaz has not been examined in defence. It is a matter of common knowledge as per record of the Customs Authorities that Muhammad Faruq Afridi had been living in this bungalow before the occurrence. I see no reason whatsoever that Muhammad Faruq was involved falsely due to professional jealousy or conspiracy against him, since no such evidence was produced by him in his defence. I also see no reason as to why, only he, has been chosen to be the culprit out of whole lot of other officials. It is in the evidence that on the day of seizure, he was on duty at the airport and soon after the occurrence, he disappeared for some time and emerged after obtaining B.B.A. With the plea that he had gone on leave.
Muhammad Ayub Nawaz in his statement recorded by Investigating Officer had disclosed that few days prior to the occurrence, Muhammad Faruq Afridi talked to him and requested him for lending official vehicle for collecting the antiques from his Bungalow No. 16-C, Park Lane, University Town, Peshawar. Such circumstantial evidence is sufficient to lead us to believe that he was involved in offence. In view of the above, I am convinced that this appellant too is involved in the commission of the offence.
20. As to the connection of Muhammad Ayub Nawaz, Security Manager, it is in the statement of Hafizullah and Zaffar Iqbal that they had been instructed by Muhammad Ayub Nawaz, their immediate boss, to fetch the goods from the bungalow owned and possessed by Muhammad Faruq Afridi, appellant. There was no justification and reason for him to immediately rush to the office of Mobile Squad No. 1 to inquire about the Van. I also see no force in the contention of the learned counsel for the appellant that Hafizullah and Zaffar Iqbal were not the subordinate of Muhammad Ayub Nawaz but subordinate to one Inshah. No doubt, there is some concession made by the P.W. Saifur Rehman in his statement before the trial Court qua the involvement of Muhammad Ayub Nawaz but this could not be taken into consideration.
21. As to the case of Hafizullah and Zaffar Iqbal who had admitted the seizure and recovery of the goods in question but alleged that they had gone to fetch the goods from Bungalow No. 16-C under the orders of their boss Muhammad Ayub Nawaz, appellant, they under the law were not obliged to obey the illegal orders of their superiors. There is also no reason to collect the goods from the private bungalow situated in the residential area of University Town, for it must have been known to them being old employee of the P.I.A. Cargo that the goods to be exported are always collected/picked up from the Cargo Office of P.I.A, situated at Arbab Road, Peshawar. I am more than convinced that they had the knowledge of the illegal collection of the goods from the said bungalow.
In the circumstances, I see no force in all these appeals which are hereby dismissed.
22. As to the one revision, it has been brought to my notice that all the appellants have served out their sentence and are out of jail. As observed by the trial Court that some of them are heart patients and some have remained patient of hepatitis and have undergone the protracted litigation and also have been removed from their service, I do not feel justified to enhance their sentence.
23. Before departing, I would like to mention that I do not see any justification in the remarks of trial Court made in paragraph No. 70 of the impugned judgment. It is the prerogative of the Department to take disciplinary action of its staff in line with the Disciplinary Rules and Regulations thereof. It will be in the interest of justice to abstain from such directives and observations.
24. In the result, I dismiss all the appeals and Criminal Revision accordingly.