2006 PLP 1907 (YLR)

MIAN MUHAMMAD NAJAM UZ ZAMAN, J.

Appellant Muhammad Javed along with three other co-accused namely Muhammad Razaq, Muhammad Asif Butt and Khalid Saddique Sheikh was tried by Special Judge Customs, Taxation and Anti-Smuggling, Lahore, in case F.I.R. No.2 of 1999 dated 25-1-1999 for the offence under sections 156(1) (14) (81), (82), (86) read with section 178 of the Customs Act, registered at Police Station I & P Branch Customs Intelligence, Lahore, who vide judgment dated 19-5-2005 while acquitting co-accused convicted appellant under section 156(1)(14) of the Customs Act and sentenced him to three years' R.I. and fine of Rs.25,000 (rupees twenty five thousand), or in default whereof to further undergo two months S.I.

2. Feeling aggrieved by the impugned judgment, the appellant has filed the instant appeal.

3. In brief the case of the prosecution is that on 13-1-1999 M/s. Waqas International Customs Clearing Agency, Lahore of which Muhammad Javed appellant filed a bill of entry in the Import Section of Lahore Airport purportedly on behalf of M/s. Ventech Dhani Ram Road, Lahore of which Muhammad Razzaq is proprietor. In the bill of entry the goods had been mentioned as Citric Acid Anhdrous B.P., Fine Powder. At the relevant time Khalid Siddique Sheikh was posted as Appraising Officer in the Import Section. The bill of entry was presented to him and he positively processed the same without any demur. Anyhow requisite Customs duties were paid and the consignment was out of charged by Muhammad Asif Butt accused who then was posted as Customs Inspector at the outer gate of the Import Section. Outside the precinct of Lahore Airport officials of Customs Intelligence were anxiously and ominously waiting, who pursuant to a spy tip off that through misdeclaration huge quantity of Cephixline Hydrate would be removed from the Lahore Airport, had established a Naka at the Octroi post. Thus, on 21-1-1999 at 10-00 a.m., a Suzuki van bearing registration No.LHV-3944 carrying five big bags of the afore-said consignment was intercepted. The vehicle was taken to the office of Customs Intelligence Lahore. Samples were drawn and sent to the different laboratories. According to one Laboratory the consignment was Cephixline Hydrate while according to the three laboratories the consignment was Amoxyline. Thus, one the report of Aslam Pervaiz Butt Intelligence Officer Customs, Intelligence, Lahore the aforesaid case was registered in which it was alleged that the importer, clearing agent in collusion with the Customs officials had made misdeclaration with a view to posting financial loss to the government exchequer.

4. After the investigation challan was submitted before the trial Court where prosecution produced seven witnesses to prove the charge against the appellant and his co-accused. Tahzeeb Ahmed Khan UDC Customs House P.W. deposed that bill of entry Exh.PA was produced before him. He also identified the signatures of Khalid Saddique Sheikh at Exh.PA/1 and signatures of Principal Appraiser, Babar Rahim at Exh.PA/2. He deposed that bill of entry was again presented to him for calculation of Custom Duties and at that time bill of entry had been completed up to Exh.PA/3 and word "Provincial" was not mentioned on the same. Mushtaq Ahmed Head Clerk P.W.2 checked the bill of entry and found that Principal Appraiser had approved the same. Tabbassam Shehzad Appraiser P.W.3 re-checked the bill of entry which was marked to him by Khalid Siddique Sheikh. Sohail Abbas Khan Intelligence Officer P.W.4 partially investigated this matter. Saleem Ullah Intelligence Officer P.W.5 entered the formal F.I.R. Exh.PB/1. Aslam Pervaiz Butt Intelligence Officer P.W.6 complainant reiterated his stand taken while lodging the F.I.R. Haider Ali Khan P. W .7 being the member of the raiding party corroborated the statement of P.W.6. Learned trial Court also examined appellant and his co-accused under section 342, Cr.P.C. Appellant while answering to question No.2 admitted that bill of entry Exh.PA was filed by him but the same was filed on the asking of Shahid Masood P.O. in accordance with the airway bill and answering to question "Why this case against you and why P.Ws. have deposed against you? Appellant replied that due to mala fide case was registered against him and he had performed his duties as clearing agent in accordance with law. Neither the appellant nor his co-accused made any statement under section 340(2), Cr.P.C. nor produced any evidence in their defence. Learned trial Court after appraisal of evidence vide judgment dated 19-5-2005 convicted and sentenced the appellant as narrated earlier.

5. In support of this appeal, learned counsel for the appellant submits that there is no evidence on record to show the involvement of the appellant. It is submitted that none of the prosecution witnesses has named the appellant and the case of the prosecution is that one Ghulam Nabi had produced the bill of entry Exh.PA. Submits that learned trial Court while keeping in view the statement of appellant under section 342, Cr.P.C. has erroneously convicted and sentenced the appellant ignoring the fact that prosecution has failed to prove the charge against him. Submits that appellant being an agent of Waqas Enterprises (Clearing Agent Company) filed the bill of entry; he was neither the beneficiary nor he had ever signed the document in question. It is finally submitted that in the light of the said circumstances the impugned order is not sustainable. Conversely counsel representing Customs department while supporting the impugned judgment vehemently opposes the arguments raised by learned counsel for the appellant.

6. After going through the record and hearing learned counsel for the parties at some length, I have observed that no doubt the case of the prosecution as apparent from the evidence of the prosecution witnesses is that it was Ghulam Nabi who had filed the bill of entry Exh.PA but on the other hand while making statement under section 342, Cr.P.C., appellant has admitted that he had filed the said document before the Customs Authorities and thus, in this view of the matter, provisions of section 209 of the Customs Act are attracted and keeping in view the same provisions of law learned trial Court has convicted and sentenced the appellant. To the extent of conviction of the appellant, I see no illegality warranting interference of this Court. As far as the quantum of sentence of the appellant is concerned, I have observed that appellant was an agent of Waqas Enterprises (Clearing Agent Company) and while working on their behalf presented the bill of entry before the Customs Authorities and he is not the beneficiary. I have also observed that bill of entry does not bear his signatures, meaning thereby the said document was not prepared by him. In these circumstances, I am of the view that learned trial Court has taken a little bit harsh view while awarding the sentence to the appellant and lenient view in this-regard would meet the ends of justice. Record of this case also reveals that A appellant has undergone a considerable period as under trial prisoner as well as the convict. Accordingly while dismissing the appeal sentence of the appellant is reduced to the period already undergone by him. However, appellant 'shall pay the fine on the same terms fixed by the trial Court. H.B.T./M-1391/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.