1989 PLP 2812 (MLD)

This appeal under section 185-F of the Customs Act, 1969, is directed against the judgment, dated 30-4-1980, passed by Mr. Muhammad Ishtiaque Hussain, Special Judge (Customs and Taxation), Karachi, by which he had convicted the appellants for the offence under clause (89) of section 156(1) of the Customs Act, 1969, and sentenced each of them to imprisonment till rising of Court and a fine of Rs.10,000 (Rs. Ten thousand) or in default to suffer R.I. for three months.

2. Briefly stated the case of the prosecution is, that on 25-5-1978 at about 4 p.m., Muhammad Khan P.I. Home, Civil Lines Division, Karachi, and his subordinate staff in pursuance of secret information, reached the shop of appellants run under the name of `M.M. Stores' on Abdullah Haroon Road, Karachi. Mr. Martin D'Souza Superintendent of Police also happened to be present there. Muhammad Khan Inspector searched the shop of the appellants in presence of Mashirs Farooque and Jawaid and secured 23 bottles of whisky, tobacco cigars, perfumes, lighters, refills, and cigarettes, all of foreign origin. The appellants were arrested and a case under section 156(1)(89) of the Customs Act, 1969, was registered against them at Artillery Maidan Police Station. The appellants were also served with notice under section 171 of the Customs Act, 1969. After completing the investigation the appellants and co-accused Muhammad Ahmad were sent up before Special Judge (Customs and Taxation), Karachi.

3. At the trial the prosecution has examined Khawaja Muhammad Ikram (P.W.1), Hisamuddin (P.W.2), Farooque (P.W.3), Muhammad Khan Inspector (P.W.4) and Mr. Martin D'Souza, Superintendent of Police (P.W.5).

4. The appellants have disputed the case of the prosecution. The statement of appellant Iqbal Muhammad, which was adopted by appellant Aslam, in his own words is as follows:- "I am innocent. On the said date I and my brother co-accused Aslam had taken food for father to the cabin which is near Rex Cinema. I found the cabin closed. One Abdullah, a shop-keeper was standing there, who told me that the police had left open our godown run by name M.M. Stores and my father had gone there. We were standing near our cabin, when Ahmad came and stood with us. We were talking amongst one another, when two police constables came and told us that Sahib had called us. We went with them to police station, where we have been involved in this case:"

5. The appellants examined Younus (D.W.1) and Abdullah (D.W.2) in their defence.

6. On the assessment of the evidence available on record, the learned trial Judge found the appellants guilty and convicted them accordingly.

7. Muhammad Khan Inspector (P.W.4) has testified the facts which I have reproduced in the narrative part of this judgment. It is clear from his evidence that the shop belonging to appellants was searched and the Police Officer recovered the above sumuggled goods valued at Rs.5,651.50 from there. Hisamuddin (P.W.2), who is working as appraiser in Customs, had evaluated the goods and found them worth Rs.5,651.50. Khawaja Muhammad Ikram (P.W.1). who is Superintendent Customs, has produced the valuation certificate issued by Hisamuddm (P.W.2). The version of Muhammad Khan Inspector to this effect gets full support from Mr. Martin D'Souza, Superintendent of Police Civil Lines (P.W.5), who was present at the time of search. In cross-examination nothing has been elicited to detract the value of the testimony of these witnesses.

8. Mr. Usman Ghani Rashid, learned counsel has challenged the conviction of the appellants on the ground that all the witnesses except one are Government officials, hence it would be wholly unsafe to depend on their testimony. He has further submitted that the Mashir of recovery, namely, Farooque (P.W.3) has turned hostile by stating that the shop of the appellants was not searched m his presence. This argument, however, is effectively answered by late Illahi Bux Khamisani, J. in Qasim and others v. The State reported in P L D 1967 Kar. 233, in the following words;- "A Police Officer is as good as witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged."

9. Mr. Martin D'Souza (P.W.5), who was working as Superintendent of Police Civil Lines is a responsible Police Officer and he had no reason to depose falsely against the appellants. His version lends full support to the testimony of Muhammad Khan Inspector (P.W.4). Farooque (P.W.3) who has acted as Mashir B also speaks of recovery of the smuggled goods, although with certain reservation. At any rate I see no reason to discard the testimony of the two Police Officers who gave an account which is untarnished by exaggeration.

10. The service of notice under section 171 of the Customs Act, 1969, upon the appellants is also questioned by the learned counsel representing them. The copy of notice is on record (Exh.1/C). Muhammad Khan Inspector (P.W.4) speaks of service of notice upon the appellants, but states that he did not obtain their signatures on it. This position was not challenged in cross-examination and, therefore, is deemed to have been accepted by them.

11. The evidence of defence witnesses, namely, Younus (D.W.1) and Abdullah (D.W.2) was again discarded by the trial Court for good reasons.

12. On overall appraisment of the entire evidence in the case and on considering all the surrounding circumstances, I see no reason to differ with the view taken by learned Special Judge. The appeal has got no merits and is dismissed. The appellants are allowed one month's time from the date of this judgment to deposit the fine m the office of trial Court, failing which they will suffer imprisonment in lieu of fine. N.H.Q./1/77/K Order accordingly.