1983 P Cr (PLP)

Abdul Alim Talib for Appellant. Mrs. Salima Nasiruddin for the State. Date of hearing : 23rd August, 1980. The appellant was tried and convicted by the Special Judge, Customs, Karachi under clause (89) of section 156 (1) of the Customs Act, 1969 and his been sentence to undergo imprisonment till the rising of the Court as ell as to pay fine of Rs. 7,000 or in default to undergo R. I. for six months. The appellant has appealed against his conviction and sentence.

2. The facts are that on 6‑7‑1977 Major Arif Sultan of Intelligence Section of the Pakistan Coast Guard received spy information, in pursuance of which he alongwith members of his staff contacted the appellants on 7‑7‑1977 at 11. 00 a. m. near Allied Bank, Campbell Street, Karachi and entered into a deal with the appellant for the purchase of U S ; 1400 at the rate of Rs. 10.50 per US $. According to the arrangement the foreign currency was to be delivered at 12‑30 the same day. At 12-00 noon Major Arif Sultan secured two Mashirs, namely, Niaz Ali and Ayoob and reached the spot alongwith the members of his staff. The appellant came there at 12‑30 p. m. and produced from his pocket currency notes of the value of U S ; 1400 and demanded its equivalent value in Pakistan currency. Major Arif Sultan at this stage disclosed his identity and arrested the appellant in presence of the aforesaid Mashirs. He prepared a Mashirnama in which the U S $ currency notes were described with numbers which was read over and signed by the Mashirs. He then registered the complaint on behalf of the State. On the same day investigation was taken up by Captain Qamar Alam of the Pakistan Coast Guard, Karachi who examined the complainant Major Arif and Mashirs Niaz Ali and Ayoob and others. On completion of the investigation the challan was submitted in the trial Court on 20‑7‑1977.

3. The prosecution examined the complainant Major Arif Sultan, Mashir Niaz Ali and Investigating Officer Capt. Qamar Alam. All the witnesses have supported the prosecution story.

4. The accused pleaded his innocence and in his written statement denied the prosecution allegations and stated that no foreign currency was secured from him. According to him one car had come at the scene of occurrence and the Captain had talked‑with the people sitting in the car. But then the car escaped and he was arrested and taken to the Coast Guard Headquarter. The accused also produced two defence witnesses, namely, D W. Zahiruddin and D.W. Inamul Haque.

5. The learned trial Court believed the two P. Ws., namely, Major Arif Sultan and Mashir Niaz Ali and based the conviction on their testimony rejecting the defence evidence and the explanation of the appel lant. In this Court the first contention on behalf of the appellant is that there are serious contradictions between the evidence of complainant Major Arif Sultan and Mashir Niaz Ali which render their evidence unworthy of credit. In this behalf it was first pointed out that according to the complainant both Mashirs signed the Mashirnama in his presence there and then. Whereas the Mashir has stated in his deposition that nobody else signed the Mashirnama in his presence. It was next pointed out that the complainant admitted that there was no deal in presence of the Mashirs, whereas the Mashir stated that the purchase rate was decided at Rs. 10.50 for one Dollar. The third contradiction referred to by the counsel relates to the denial of the complainant that there were other persons also who had come in a car, whereas the Mashir stated that when the accused was arrested one person was sitting in the car. Firstly the contradictions are not‑material and do not in any way detract from the truthfulness of the main testimony of the two witnesses, namely, the recovery of foreign currency from the possession of the appellant at the t: me and place disclosed by the prosecution. As to the first alleged con tradiction the Mashir has quite clearly stated that no other persons signed the Mashirnama in his presence. The point was not pursued further to exclude the possibility of the signing of the Mashirnama afterwards by the other Mashir without Niaz Ali witnessing the signature. As to the second alleged contradiction, in my opinion, there is no contradiction as the complainant had stated: There was no deal in presence of the Mashirs but accused only demanded. Pakistan currency at 10.50 per Dollar. This is exactly what the Mashir has stated. Obviously the com plainant was referring to the deal separately entered into prior to the occurrence of recovery of the foreign currency at 11.00 in the morning at which time the Masir was not present. The third alleged contradiction is no contradiction as it is not clarified in the evidence of the Mashir which car he was referring to, whether the car in which the raiding party had come or any other car. The alleged contradictions are, therefore, of no significance.

6. It was then contended that the Mashirnama (Exh. 3‑A) does not contain the names of Mashirs. It was argued on the other hand that the Mashirnama bears the names and signatures of the Mashirs. It is no doubt true that in the body of the Mashirnama the names of the Mashirs have not been mentioned, but no cross‑examination was directed on this point and at any rate, the mere omission to mention the names of the Mashirs in the body of the Mashirnama does not cast any doubt on the tact that Mash, Niaz Ali was. present a, the time of the transaction in the case. As pointed out by the trial Court in the cross‑examination of the complainant it is impliedly admitted that the only Mashir present at the time was Niaz Ali who signed the Mashirnama. The appellant seems to have challenged only the presence of the other Mashir Muhammad Ayoob. Additionally the F. I. R was registered at 2.00 p. m. soon after the incident which mentions the names of the Mashirs. There is, therefore, no substance in this contention.

7. It was strenuously contended on behalf of the appellant that the complainant should have registered the F. I. R. on the 6th when he received spy information but he did not do so and did not even record the substance of the information. Learned State counsel in reply submitted that Police Officers are entitled to keep spy information confidential and may refuse to disclose the source thereof. In any case there is nothing on the record that any information of any cognizable offence was received by the complainant on 6th so he could register the F. I. R. All that he states in his evidence is that he received some sort of spy information in pursuance of which he contacted the appellant and struck the deal which eventually resulted in the recovery of contraband currency in his posses sion.

8. Counsel also contended that there was violation of section 103, Cr. P. C. which should have put the Court on guard to reject the evidence of the Mashir to avoid possibility of concoction. It is no doubt true that the Mashir examined at the trial belongs to a different locality of the city, but as held in Muhammad Khan v. Dost Muhammad (P L D 1975 S C 607) the requirements of section 103, Cr. P. C. are not absolute in the sense that failure to comply with them, will make the search illegal. The objection is to guard against possible chicanery and concoction. Strictly speaking there was no search conducted in the present case but the appellant is alleged to have produced the contraband currency from his pocket which was witnessed by the Mashir. Therefore, the evidence of the Mashir in this case is not in the strict sense of a witness of search under section 103, Cr. P. C. Be that as it may, as observed by the learned trial Court keeping ‑in view the statement of the accused and the absence of any motive or enmity against the! Seizing Officer, there is no reason to believe that he must have concocted or levelled a false accusation against the appellant. No suggestion was made against the Mashir of his interestedness in the prosecution. The evidence of D. W. Inamul Haque in absence of such suggestions that, Mashir Niaz Ali is a barber in the establishment of the Coast Guards is' unreliable and does not seem to be relevant as also conceded by the learned counsel for the appellant. No such question was put to the wit ness at the time of his examination. I have considered the statement of the accused alongwith the evidence of D. W. Zahiruddin which do not tally with each other and keeping that evidence in juxtaposition with the prosecution evidence it does not seem in any way,. to affect the veracity of the testimony of the complainant to indicate that he must have falsely concocted the case against the appellant. By and large the testimony of P. Ws. Major Arif Sultan and Niaz Ali has gone unimpeached and was rightly relied upon by the trial Court. I, therefore, agree with the learned Special Judge that it is not possible to believe that Major Arif Sultan must have procured the foreign currency from elsewhere and implicated the appellant falsely.

9. For the foregoing reasons, there is no merit in this appeal and it is accordingly dismissed. The interim order suspending the sentence shall stand forthwith vacated. Appeal dismissed.