1997 PLP 1632 (MLD)

(b) the right of an accused to claim appointment of a competent counsel on State expenses in situations prescribed by law e.g. capital punishment; (c) the duty of the Court to apply the correct law and decide accordingly, notwithstanding that the accused/litigant is unrepresented by counsel. (9) This concept of right of counsel has not been explicitly enshrined in the 1973 Constitution as a fundamental right, however, it has been recognised by our superior Courts as a right existing under the principles of natural justice (see Muhammad Saeed Ahmed Khan v. Secretary to Government of Punjab Housing and Physical Planning Department PLD 1983 Lah. 206) and also as a Constitutional right embodied in the due process clause contained in Article 4 of the Constitution (see Aslam Ali Shah v. Collector of Central Excise and Land Customs 1983 PLC (C.S.) 498). Since this right of counsel has been recognized so its alleged violation becomes a justifiable issue over which the Courts can exercise judicial review. The concept of judicial review is not static. In a recent case reported as Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum and Natural Resources and 2 others 1995 MLD 15 a pragmatic definition is offered to this concept of judicial review as under:‑‑ As an ideation judicial review has always been a dynamic concept and, to quote F.W. Maitland, 'each generation has enormous power to shape its own laws', its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with holder concepts.' (see page 28). This aspect of volatility and growth of judicial review is also shared by the concept of due process enshrined in Articles 3 and 4 of the Constitution. The concept of due process is also shaped with the passage of time and brings into its fold newer subjects while its armoury is also enriched with bolder concepts. A practical example of this is the principles of natural justice which at one point of time were viewed only as general principles, however, after Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 the principles of natural justice have been equated with principles of law. In my humble opinion the principles of natural justice would now have to be considered as a Constitutional concept enshrined in Articles 3 and 4 of the Constitution, which contain the due process clause. Similarly, the principle of legitimate expectation has also found recent resurgence, especially after Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, whereafter the said principle of legitimate expectation would also have to be seen as a Constitutional principal/concept entrenched in the due process clause contained in Articles 3 and 4 of the Constitution. Another illustration in this regard is a person's unhindered right of appeal (see Abdul Rahim and others v. U.B.L. supra). The position in relation to the right of counsel is similar as recognised in Aslam Ali Shah v. Collector of Central Excise (supra).

10. In the analysis as aforesaid an attempt has been made to underscore the relationship between basic right found in general principles e.g. natural justice, legitimate expectation, right of counsel or even an unhindred right of appeal, and the due process guaranteed under the Constitution. The contemporary resurgence of natural law in the form of natural rights expounded by Dworkin (see Taking right seriously) and Finnis (see 'Natural law and natural rights' Chapter 9) is also to such effect. Dias while commenting upon Dworkin and Finnis has also confirmed that basic and natural rights are to be found in guarantees pertaining to due process (see Dias on 'Jurisprudence', 1985 Edn., p.502)."

4. We are inclined to hold that the above observations not only apply to cases where the accused is unrepresented and no cross is effected but the same also stand good and apply in the event the accused is unrepresented by counsel but some cross is effected by the accused himself. In this regard the observations of the Supreme Court in Syed Saeed Muhammad Shah v. The State 1993 SCMR 550 warrant greater application which are to the effect that a cross‑examination by the accused cannot be a substitute to a cross‑examination by the counsel. The justification for such a rule is more than obvious in that an accused who is usually a layman cannot be expected to have knowledge of law and procedure, in particular, the law of evidence. Accordingly, the duty of the Court in such cases to discover the truth cannot but be overstated. We thus feel that the learned trial Judge had materially erred in not by itself making an endeavour to discover the truth and by failing to put a cross‑examination on its own accord.

5. In the instant case apart from the glaring defect where the right of a counsel in the context as elaborated above has been denied to the appellant, the prosecution version also suffers from marry infirmities. According to the prosecution witnesses they proceeded to the place of incident vide entry No.23 but no copy of the station diary has been produced to show that the police party led by the complainant had actually left the police station and proceeded to the place of incident. Non‑production of this vital document creates a serious doubt in relation to the genuineness of the prosecution story. (See Muhammad Azeem v. The State 1977 PCr.LJ (Kar.) 671 (S.B.), Sher Muhammad v. The State' unreported (D.B.) judgment dated 8th November, 1995 in Criminal Appeal No.89 of 1994 comprising Hussain Adil Khatri, J. and Dr. Ghous Muhammad, J. (the judgment was authored by the latter) and Muhammad Anwar v. The State unreported judgment, dated 22nd November, 1995 in Criminal Appeal No. 176 of 1995, both the unreported judgments are from Hyderabad Bench).

6. Apart from the above, there is yet another infirmity. The learned trial Court has failed to frame the charge against the appellant after the R&P was transferred to the Court for trial. In his judgment the Special Judge has observed (at page 2) as follows:‑‑ "And after completing the investigation submitted the challan of the present accused Qalandroo before Sub‑Divisional Magistrate, Dadu. The case file has been received by this Court from the Court of S.D.M., Dadu on 7‑1‑1993 as the case falls within the jurisdiction of this Court. Accused was supplied copies vide Exh. l and charge was framed against the accused as Exh.2. The accused has pleaded not guilty as Exh.3." The above is a totally incorrect statement. The record shows that the S.D.M. had framed the charge for the offence under section 13(d), Arms Ordinance on 9‑1‑1992 and the plea was also recorded on the same date. The appellant pleaded not guilty and both were marked as Exhs.2 and 3 (at page 15 of the R&P). Thereafter the matter was received on transfer and the statement of the complainant was recorded on 30‑8‑1993 (Exh.4). This statement bears signature of the Special Judge. Subsequently on 20‑12‑1993 P.W.2 Ghulam Mustafa was examined and his statement was also signed by the same Special Judge, and thereafter the trial was completed which resulted in conviction of the appellant. The whole procedure adopted by the Special Judge is not in accordance with law and on this score alone the trial stands vitiated. Moreover, the Special Judge also committed a further illegality as he failed to comply with the mandatory provisions of section 364(2), Cr.P.C. as he failed to append a certificate after recording the statement of the appellant under section 342, Cr.P.C. The non -compliance of this mandatory provision is incurable. (see Salamat Ali Khan alias Salamat Masih and another v. The State 1987 PCr.LJ (FSC) 384; Bashir Ahmed Malik v. The State 1988 PCr.LJ 1693 and Kafiluddin v. The State 1989 PCr. LJ 251.

7. The infirmities do not stop at this. The learned trial Judge has also materially misconstrued the aspect of burden of proof as follows:‑‑ "In this present case the concerned arms which were exclusively in unlawful possession and control of the accused though it is for the accused to explain that how the said arms are lying in his control and possession. And in the absence of any cogent reason it is presumed that the alleged arms were in the exclusive and unlawful possession of the accused. I will rely on the principle laid down in a case‑law reported in PLD 1962 Kar. p.228. The accused failed to shift the burden of proof lying upon the shoulders of the accused the provision of section 8 of S.T.A. Special Courts Act, 1975 which reads as under:‑‑ Burden of proof. Where any person accused of having committed a scheduled offence is found to be in possession of or to have under his control, any article or thing which is capable of being used for, or in connection with the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicious that he had committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence. I see no reason to disbelieve the evidence of both the prosecution witnesses who have sufficiently corroborated the prosecution case. " The above observation/conclusion of the learned Judge are based on a mis-appreciation of the concept of burden of proof. The burden of proof under section 8 of the S.T.A. does not stand shifted to the accused till such time the prosecution first makes out a reasonable case against the accused. This is to be read in conjunction with the general principles of law that the accused shall be deemed to be innocent till such time he has been found guilty. In the context I would venture to reproduce an excerpt from a decision authored by me while sitting in a Division Bench i.e. Kamran Industries v. Collector of Customs PLD 1996 Kar. 68 which reads as under:‑‑ "

23. The next objection raised by the learned counsel for the respondents is that under section 187 of the Customs Act, the burden of proof was on the petitioner rather than upon the Customs Authorities to categorically disprove the allegations of mis-declaration and under‑declaration levelled by the Customs Authorities. In this respect Mr. S. Tariq Ali has contended that the rulings relied upon by the petitioner's counsel become inapplicable as the law has itself clearly cast the burden upon the petitioner. In order to appreciate this objection it is pertinent to scrutinize the provisions of section 187 which reads as follows:‑‑

187. Burden of proof as to lawful authority. etc.‑‑When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit, licence or other document shall lie on him. It appears to us that section 187 covers two situations which we state as follows: (a) when a person is charged with an offence under the Customs Act, the burden of proof is cast upon him to show that he had the lawful authority to commit that act; (b) when a person is found in possession of any goods the burden of proof is cast upon him to show that he was holding such goods under some lawful authority, permission or licence, etc. Situation (b) is not in issue in the present case, however, we feel that it provides for an eventuality when a person is found to be in possession of certain goods which fall under a prohibited category or which in an unlawful manner find place in the possession or custody of the accused. In such case the burden is upon the accused to show that he falls under some exemption or exception to hold such goods. This type of eventuality as envisaged and stated in situation (b) above is essentially a statement of the general principle of the law of evidence contained in Article 121 of the Qanun‑e‑Shahadat that whosoever claims to all under a preferential or exempt or excepted category must show that he fulfils that conditions to fall within that category. This obviously should not be confused with the fectum of possession for which no presumption or burden of proof has been spelt out, in view whereof the possession itself has to be proved independently by the prosecution beyond all reasonable doubt. 24, It is situation (a) as stated above in para. 23 which is directly in issue in this case i.e. whether the burden of proof solely lies upon the petitioner to disprove allegations of misdeclaration and misdescription levelled by the Customs Authorities and whether the Customs Authorities are under no obligation to lead evidence and discharge any onus of proof. This part of section 187 of the Customs Act perhaps appears to be contrary to the general principle of the law of evidence contained in Article 117 of the Qanun‑e‑Shahadat that whosoever alleges‑ existence of a particular fact must prove the same. There is little doubt that a special law or a particular statute can provide for a distinct regime of rules of evidence than contained in general law. In fact the law goes on as far as providing that the laws of evidence can be altered even by mutual consent and contract. See S.M. Anwar Sethi v. South British Insurance Company Ltd., PLD 1975 Karachi 458). However, on a closer scrutiny of the provisions of section 187 and the case‑law settled by our Courts on the subject it appears that in such a situation it is only the evidential and tactical burden of proof which is cast upon the accused while the legal burden to bring home the allegations remains with the prosecution. Before we dilate upon the concept of the two types of burdens of proof and explain the terms "tactical", "evidential" and "legal" burdens of proof we shall first discuss the case decided by the High Court of Sindh in Barkat Ali v. The State PLD 1973 Karachi

659. In this case the controversy revolved round section 177A of the erstwhile Sea Customs Act, 1878 which catered for a similar situation as has arisen in the present case i.e. the same provided the burden of proof upon the accused to disprove the case of the prosecution that his intentions were not to defraud the exchequer or evade any prohibition or restriction under the Act. Writing for Court Tufail Ali Abdul Rehman, CJ was of the opinion that the said presumption of burden of proof could not be drawn until the explanation of the accused was first taken into consideration. According to the learned Judge the 'normal principle' was applicable i.e. that the accused was entitled to a benefit of doubt where he offered a reasonable explanation which was either acceptable or raised a doubt. In such cases the burden then shifted upon the prosecution to establish the case. In this regard the pertinent observations are reproduced hereunder: ....despite S. 177A of the Sea Customs Act if upon the end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted." (At p. 671).

25. Both classical and contemporary treatises on the law of evidence (Cross on "Evidence" 1967 3rd Edition, London, Butterworth, "A Practical Approach to Evidence" by Peter Murphy, 1988, 3rd Edition, London, Blackstons Press Ltd., and "The Modern Law of Evidence" by Adrian Keane 1985, 1st Edition, Oxford, Professional Books Ltd. talk in terms of two burdens of proof i.e., the "legal" or "persuasive" burden and the "evidential" or "tactical" burden. The legal burden is defined as "the burden of proof or the probative burden and the ultimate burden" (see Keane at p. 46). The same has also been defined as "the burden of persuading the Tribunal or fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue". (See Murphy at p. 78). On the other hand the "evidential" or "tactical" burden has been defined as "the quantum of evidence which would "establish a prima facie case". (See Murphy at p.79). The legal burden is accordingly in our view the ultimate and final burden whereas the evidential burden requires only establishment of a prima facie case. According to the learned authors in every case there is a distinction between these two burdens. On a general principle both these burdens are cast upon the asserter of a proposition whereas in some cases the incidence of these two types of burdens may not coincide. According to Keane the determination of where the burden falls would depend upon substantive law as well as common sense‑‑ (See pp.49 and 50). The mode of operation of the rules of evidence would be that the party upon whom the evidential burden is cast shall have to establish through prima facie evidence that he has an arguable case. In such an event it would then be obligatory upon the person bearing the legal burden to bring on record such material which would ultimately bring home his case. In circumstances where both the evidential and legal burdens are cast upon the same party that entire burden of proof shall be on the particular party and the distinction between legal and evidential burdens would not serve a fructuous purpose. However, it is in such cases where the incidence of the legal and evidential burdens are distinct i.e. the legal burden is placed on one party whereas the evidential burden lies on another, that the party on whom the evidential burden is placed has to satisfy the same by establishing a prima facie case. In such an eventuality the burden would shift to the other party who shall have to. bring forth the ultimate evidence to make out a case i.e. he would have to satisfy or discharge the legal burden. The concept of shifting of burdens of proof is not alien to even our jurisprudence. The shifting of burdens of proof have been discussed and approved in Mst. Safia Begum v. Mst. Malkani and another (PLD 1965 Lahore 576), Akber Ali v. Ehsan Elahi (PLD 1980 Lahore 145), Government of Pakistan v. Moulvi Ahmed Saeed 1983 CLC 414), Muhammad Sarwar v. Fazal Rehman (1982 CLC 1286) and Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir (1984CLC 325). In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has beer acknowledged, however, the reason as to why such a legal fiction take place has not been discussed. We feel that it is due to operation of the principles of incidence of burdens of proof vis‑a‑vis "legal" and "evidential" burdens as discussed above that the process of shifting of burdens becomes possible. We have already cited the opinion of Adrian Keane and we hold that in order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, the case‑law on the subject as also common sense and equity. In this case we are of the view that in the situation in issue i.e. (a) as discussed in para. 23 above, section 187 casts upon the petitioner‑accused only the obligation to make out a prima facie case as it is only the evidential burden which is borne upon it. Once the petitioners were to satisfy this evidential burden, the legal burden to bring home the ultimate cases shifted upon the Customs Authorities. The question is now essentially to determine as to whether the petitioner was able to discharge the evidential burden. Evidential burden essentially requires making out a prima facie case which is arguable and at least raises a doubt in the mind of the Court. The very fact that this petition has been admitted to regular hearing confirms that the petitioners had made out a prima facie case in view whereof we hold that it has discharged the evidential burden. In any event the facts and circumstances of the case are such and the explanation offered by the petitioner are of such a quality which at least raises a doubt in favour of the petitioner. The contention of the learned Standing Counsel that no duty was cast upon .the Customs Authorities to bring home any evidence in support of its case is incorrect. We are of the view that heavy onus, being the ultimate legal burden, shifted upon the Customs Authorities to come up with independent and cogent evidence against the petitioner which they have failed to discharge. In fact, even in the cases relied upon by Mr. Farogh Naseem i.e. Eastern Rice Syndicate v. C.B.R. (PLD 1959 SC (Pak.) 364). The Collector, Central Excise and Land Customs, Chittagong v. Imdad Ali (1969 SCMR 708) and M/s. Latif Bros. v. Deputy Collector Customs, Lahore (1992 SCMR 1083), the Supreme Court has clearly held that the ultimate burden of proof lay upon the Customs Authorities which cannot be said to have been discharged merely on account of weakness in the evidence of the importer. The first two cases i.e. Eastern Rice Syndicate and Imdad Ali were adjudications upon section 39 of the earstwhile Sea Customs Act (which is comparable to the present section 32 of the Customs Act, 1969). In both those cases we cannot hold that the Courts were oblivious to the provisions of section 1936 of the Sea Customs Act which is almost identically worded to the present section 187 of the Customs Act. The said section 1936 of the Sea Customs Act, 1878, is being reproduced for convenience: 193‑G. Burden of proof in certain cases.‑‑Where any person is tried for an offence under this Act and any question arises whether he did not act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him. Even in the recent decision of Latif Brothers which touched upon section 32 of the Customs Act, 1969, the Court followed the earlier decision of Eastern Rice Syndicate. For that case also we do not feel that the Honourable Supreme Court closed its eyes to the provisions of section 187 of the Customs Act. We accordingly hold that the contention of Mr. S. Tariq Ali inviting us to hold these Supreme Court judgments as per incuriam is misplaced. These decisions are respectfully very sound and accordingly bind us under Article 189 of the Constitution. Before parting with the discussion on section 187 of the Customs Act we are of the view that in case the interpretation on the lines invited by the learned Standing Counsel were to be adopted i.e. that for every offence for which the accused is charged under the Customs Act he shall have to disprove the allegations of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the Authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statutes which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discretion vested upon the Executive Authorities. As absolute power corrupts an interpretation fettering the discretion of the Executive Authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to section 187 the entire burden to disprove the entire case rests upon the accused alone, the Executive Authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided. "

8. In light of the above we hold that the burden of proof did not shift to the appellant as the prosecution failed to make out any reasonable case against the accused/appellant. There were also no independent witnesses of recovery or the Wardat. The learned trial Judge had misdirected himself all along.

9. The upshot of the above discussion is that the impugned judgment is not maintainable in law. Accordingly it is set aside and the appeal is allowed. N.H.Q./Q‑5/K Appeal allowed.