1998 P Cr (PLP)

(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and psychotropic substances; or (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any' other goods notified by the Federal Government in the Official Gazette, which, in each case, exceed five thousand rupees in value; or (iii) any goods by any route other than a route declared under section 9‑or 10 or from any place other than a customs station. and includes an attempt, abetment or connivance of so bringing in or taken out such goods; and cognate words and expressions shall be construed accordingly. Section 156(1)(8): "If any goods be smuggled into or out of Pakistan." Section 156(1)(89): "If any person without lawful excuse, the proof of which shall be on such person, acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods.

11. The plain reading of the language employed in clauses (i) and (ii) of that any prohibited or restricted goods, if brought into or of evading duties etc. fall within the ambit of "smuggling". The antiques which, admittedly did not mention the name of any country of origin were seized within the country. It is in the statement of Saeed‑ur‑Rehman (P.W.4), that the antiques in question are remnants of the Gandhara Civilization which exists within the National boundaries. This witness further admitted that such antiques could easily be found in District Swabi, Swat, and Bajaur Agency. It is also not the case of prosecution that the goods in question were transported out of or smuggled into Pakistan. The very contents of F.I.R. alleged that artifacts in question were being carried for the purpose of sale. There was no explanation or evidence to the effect that the sale was meant out of the country. Thus, the goods in question would not fall under the definition of smuggling.

12. I also have no intention to grudge the view taken by Barrister Sahib that even goods of Pak origin could be seized by the customs authorities under section 2(s) of the Act, but this could only be possible when, an accused person is apprehended with the notified goods of Pakistan origin in the border belt. In such circumstance the offence would be committed under section 156(1)(8) of the Customs Act. The respondents were arrested at the University Campus Chowk, which is at the distance of approximately 65 Km. away from the Afghan border and also by no means, the scene of occurrence is within the Peshawar International Airport Limits.

13. Reverting to the charge under section 156(1)(89) of the Act, it is admitted that this clause applies to the arrest of accused person with the smuggled goods in the interior of the country. Under the general principle of jurisprudence, the onus to prove the guilt of an accused person is always on the prosecution, but under this provision of law a departure is made from the limited to the extent that "the goods are seized under this Act in reasonable belief that they are smuggled . In other words it is for the accuse person to prove that the goods in the possession were not smuggled the goods. As observed earlier that the antiques in question could not be proved to be smuggled goods. The antiques in question did not show the country of origin, but belonged to Gandharah civilization, which was admittedly in the N.‑W.F.P. Province. Mere charge of smuggling by itself was not sufficient to raise reasonable suspicion that the goods in possession of respondents were smuggled goods. However, the explanation given by respondent Said Qamash in his statement under section 342, as well as in his defence qua his legal possession that he being a goldsmith used some of the items in his professional capacity and some of the items were brought by his son, Kifayat Ali, who was studying archaeology as a subject in his BA degree course for orientation purposes, may not be very convincing, but no adverse inference could be drawn in favour of prosecution.

14. I also see force in the contention of the learned counsel for the respondent that the search/raid of the respondents were not conducted in accordance with the statutory provisions of the law.

15. Under section 162 of the Act only Gazetted Officer of the Customs Department can apply to the Magistrate for the search warrant whereas, provision of section 163 of the Customs Act empowers certain agencies to search the premises, no doubt, under the supervision of Gazetted Officer, and to arrest the person involved in the commission of the offence without warrant. However, such right of search is available to the officer after fulfilling of following conditions:‑‑ "(i) There is a danger that the goods might be removed before the search could be made under the provision of section 162, (ii) That the Officer must prepare a statement in writing of the grounds of his belief and of the goods, for which search is to be made: (iii) That such officer who made the search must leave a signed copy of such statement at a place searched and also to deliver a signed copy thereof to the occupant of the place.

16. The stance of the prosecution is that the house of respondent Said Qamash was raided and searched in the presence and under supervision of Mr. Iftaullah Khan Assistant Director Customs Intelligence but neither the Assistant Director appeared before the Court to support this version nor conditions enunciated in clause (i) and (ii) were fulfilled.

17. In view of the above discussion, no case is made out against the respondents under section 156(1)(8)(89) read with 2(s) of the Customs Act.

18. However, before parting with the judgment, I may very regrettably observe that the seizing agency, consisting of the senior officials of the department, who are always expected to be well‑versed with the law and its procedure, had misapplied the law in charging the respondents. As it is evident from the facts and circumstances of this case, the present respondents could very conveniently be charged under the provisions of the Antiquities Act, 1976. The learned counsel for the appellant, during the course of arguments, brought it to my notice that articles in questions are kept in Peshawar Museum. No doubt such rarities and artifacts are part of our strong heritage, personal possession of such items should not be encouraged. Rather, they should be collected from the personal possession, properly tagged and preserved in the National Museum Therefore, I shall abstain to order the return of the seized goods to the respondent accused and direct that the same may be made part of our National Museum.

19. In the result, the impugned judgment does not warrant interference and, hence, this appeal stands dismissed. N.H.Q./100/P Appeal dismissed.