1988 P Cr (PLP)

S.M. Amir Naqvi for Appellant. M. Hayat Junejo for Respondents. Date of hearing: 2nd March, 1987. This criminal acquittal appeal under section 185‑F of the Customs Act is filed by the Federal Government against the order of Special Judge, Customs and Taxation, Karachi, dated 15‑10‑1986. Learned counsel for the appellant contends that in acquitting the respondents /accused the learned trial Judge disbelieved the evidence of 8 prosecution witnesses who fully supported the case of prosecution. The case of the prosecution against the respondents was that Customs authorities received spy information to the effect that respondents will make attempt to smuggle large quantity of Pakistani currency out of country. The Customs authorities were informed that the money would be brought in a beige colour Toyota Cressida Car bearing registration No. 109‑119 to the sea channel near Misri Shah Shrine, Gizri for smuggling in a small boat. The Customs Authorities accordingly organized three Customs parties on 9‑3‑1985 each headed by Customs Officers and included two private persons as Mashirs. These parties waited at a pre‑determined spot near the seashore to surprise the smugglers. That at about 5‑45 p.m. the Customs parties which were waiting in ambush noticed a beige colour Toyota Cresside Car being the above Registration number heading towards seashore.' They became alert and as soon as the car reached near the shore and took a turn and two persons stepped down from the car and started unloading bundles from the Car dicky, the Customs party surprised them. It is alleged that the respondents having seen the Customs party approaching them abandoned the three bundles unloaded by them from their car dicky and sped away in their car to evade their arrest. The Customs party headed by S.H. Mahmood then allegedly seized the three bundles abandoned by the respondents at seashore as directed by S.P.O. Ch. Mohammad Rafiq while the remaining members of Customs parties followed the respondents in their respective vehicles. The party headed by S.H. Mahmood also later joined in the chase after allegedly seizing the three bundles from the seashore. The Customs parties finally overtook the car of respondents near the show room of World Wide Trading Company on Garden Road, but the respondents managed to escape. The Customs party however, succeeded in taking over charge of the car of respondent and on a search recovered from the dashboard of the car one revolver belt with 60 rounds of 0.32 bore, one revolver licence, one driving licence, ignition key of car, two bunches of keys and one invitation card besides, recovering two cloth bundles from the car dicky. It is an admitted position that no Mashirnama of the seized Pak. Currency or even a short Mashirnama of seizure of three clothes bundles at seashore and two cloth bundles at Garden Road, were prepared by the Customs Authorities at the spot. The! Mashirnama of the entire seized Pak. Currency and other articles recovered from the respondents car was prepared on the following day at 1 a.m. at the Drug Enforcement Cell, Ghas Bunder, Karachi: The respondents in their statement under section 342, Cr.P.C. denied the above fact. They stated that respondent No. 2 is a respectable businessman and a regular Income‑tax Assessee while respondent No. 1 is his driver. They also stated that respondent No. 2 and his family are engaged in the business of fish catching from which they derived about 35 lacs income annually which was exempted from Income‑tax. They further stated that on 9‑3‑1985 a sum of Rs.80,66,700 had accumulated with respondent No.1 which he was taking to his bungalow in P . E. C . H . S . for safe custody in car as on the next day he intended to buy prize bonds for this amount. That while the respondents were going on Garden Road, next to Khyber Hotel towards Bambino Cinema, three parties two in car and one in a jeep armed with pistol and rifles in plain clothes came rushing towards their car from front as well as from behind and blocked there car. The respondents took them as robbers/dacoits who had attacked them in order to snatch the money. The respondents accordingly fired in the air and they ran away to save their lives. They completely denied the prosecution story that three bundles were seized by the Customs Authorities from Gizri where respondents had unloaded them from their car. In support of their defence the respondents examined two witnesses Behram Khan (Ex.21) and Ghulam Ali (Ex.22). The learned trial Judge after a careful examination of the evidence in the case did not believe the part of story of prosecution which related to the seizure of the three bundles of Pak. Currency at Gizri Seashore and in arriving at that conclusion the learned Judge relied on the provision of section 103, Cr.P.C. and observed that in spite of the fact that the Customs party had two Mashirs with them they failed to prepare even a short Mashirnama at the spot which created serious doubts regarding that part of the prosecution story. The learned Judge also took into consideration the situation of the spot where the three bundles were allegedly unloaded by the respondents and then examined the probability of escaping of the respondents from that place without being intercepted by the Custom parties who were present there in three different vehicles and reached the conclusion that it was not possible for the respondents to have escaped without being intercepted by the Custom Parties. Having disbelieved the 1st part of the story of prosecution the learned Judge, held that the second part of the story even if believed did not constitute any offence as carrying of Pak. Currency in any quantity is no offence. The conclusions arrived at by the learned trial Judge are neither perverse nor contrary to evidence on record. The learned counsel for the appellant contended that if the whole evidence of prosecution is examined carefully it will show that the first part of the story of prosecution was also established in all its details. Firstly, in fact that another view of evidence on record is possible is n ground to interfere with the judgment of trial Court in an acquittal appeal. Secondly, on a re‑appraisal of the evidence and after considering the fact that no Mashirnama was prepared by the Custom authorities after alleged seizure of three bundles at Gizri Seashore I am of the view that the learned trial Judge rightly disbelieved the 1st part of the prosecution story which related to unloading of three bundles of Pak. Currency by the respondents at Seashore and seizure thereof by the Custom at that place. Apart from it mere unloading of Pak. Currency at a place which is near Seashore by itself did not constitute any offence unless there was evidence to show that it was done with the intention to take out the unloaded currency out of Pakistan. There is absolutely no evidence in the case to show that there was any attempt on the part of respondents to smuggle the Pak. Currency out of the territory of Pakistan after allegedly unloading the same at seashore. No case for interference is made out. The appeal is accordingly dismissed summarily. S.A./F‑32/K Appeal dismissed.