1981 P Cr (PLP)

Mrs. Saima Nasiruddin for the State. Date of hearing: 14th December, 1980. This is an appeal under section 185-F, Customs Act, 1969 arising out of a judgment passed by the Special Judge (Customs and Taxation), Karachi dated 30th September, 1978 whereby the appellant was convicted under section 156 (1) clause (8) of the Customs Act and sentenced to undergo imprisonment till rising of the Court and to pay a fine of Rs. 5,000 or in default suffer 3 months further S. I.

2. The facts in brief are that on 21stFebruary, 1976 while the appellant was riding in a taxi going towards Keamari at about 12-30 in the night he was intercepted by the Additional S. H. O. Jackson Police Station at Native Jetty Bridge. The Police Officer found the taxi full of goods and upon search he secured one canvas bag lying near the appellant in the front seat from which he secured a radio tape-recorder, 7 small radios, 2 time-pieces, 4 wrist-watches and 2 cartons of cigarettes and some battery cells. From another canvas plastic bag the Officer secured 32 dozens match boxes and 4 locks. From two boxes placed on the carrier of the taxi he secured 23 pieces of tetron cloth, Janamaz, small and big handkerchieves and new garments etc. From the person of the appellant he secured 20 tolas of swiss gold, 2300 Saudi Rials and also 32 Rupees Pakistani currency. A complaint was registered on behalf of the State and the appellant was sent up for trial before the Special Judge.

3. The defence of the appellant was that he was working in Saudi Arabia since 1951 and had come back on a visit to Pakistan on 20th February 1976 by ship. He did not deny the recovery of the goods from his possession except gold and claimed that the goods were exempted from duty on account on his long stay in Saudi Arabia and on the dutiable goods he had paid duty.

4. The case of the prosecution rested on the evidence of Mr. Shafiq Ahmad, Addl. S. H. O. who fully supported the prosecution story. The other material witness produced by the prosecution was Mashir Mohammad Rasid, who has also fully supported the prosecution case. Since the appellant admitted the possession of the goods except as mentioned above, the learned Special Judge examined the question as to which goods fell within the mischief of the notification under section 2 (s) of the Customs Act. He finally came to the conclusion that most of the items among the goods seized were of trivial nature of small value which were not liable to seizure. According to the calculation and assessment of the value of goods made by the learned Judge, 91 artices were worth Rs. 1,181 only most of which were either not liable to seizure of were covered under rule 4 of the Baggage Rules importable free of duty for personal use. Deducting the value of such goods the value of the remaining articles was found not to exceed Rs. 500 which was also permissible to a bona fide passenger free of duty under rule 4-C. The question that remained to be considered was, therefore, as to three items of the articles secured from the possession of the appellant, namely, the tape-recorder of the value of Rs. 400, 2,300 Saudi Rials and 20 tolas of Swiss gold. Out of these three items the appellant admitted the recovery from his possession of the first two items which were, however, subject to duty. It was found by the learned Judge that the plea of the appellant that he had paid the duty was not substantiated as no receipts were produced, but since under section 2 (s) of the Customs Act the valuation of the goods to constitute smuggling is required to exceed Rs. 1,000 in each case the appellant was not found liable for possessing the tape-recorder. The contention of the appellant before the trial Court was that he was entitled to bring foreign currency without limit under rule 19 of Chapter XVIII of the Exchange Control Manual issued by the State Bank of Pakistan. This contention of the appellant was repelled as under another notification No. F. E. 3/60- S. B. if such foreign currency is brought in Pakistan the person bringing the same had to make declaration to the Customs Authorities at the time of his arrival in a prescribed form. In absence of such declaration the appellant was found guilty of having brought the currency in violation of the prohibition contained in the Rules. Additionally upon assessment of evidence the learned Judge came to the conclusion that the prosecution had established their case that the appellant had brought into Pakistan 20 tolas of Swiss gold as the Police Officer had no reason to falsely implicate the appellant.

5. I have considered the evidence on record and find that the trial Court has correctly reached the conclusion that the appellant was guilty of smuggling in respect of gold. I find no force in the submission of the learned counsel for the appellant that no reliance can be placed on the evidence of the Police Officer and the mashir. Cogent reasons have been assigned by the trial Court for repelling similar contention.

6. It was contended before me that as to the Saudi currency the case of the appellant is fully covered under rule 19 of Chapter XVIII of the Exchange Control Manual issued by the State-Bank of Pakistan, IVth Edition (1975). According to this rule general permission has been given permitting any person to bring into Pakistan from any place outside Pakistan without limit foreign currency notes etc. and that there was no requirement for declaration of such currency notes to the Customs, but the latter in their discretion were authorised to require any such person to declare such currency. It is not known whether this rule continued to be applicable on the relevant date of the occurrence in this case and the learned counsel for the respondent was unable to show any other notification or rule. It was further disclosed by the learned counsel for the appellant that adjudication proceedings are pending with the Customs Authorities in respect of this currency. Since, therefore, I have already reached the conclusion that the appellant was rightly found guilty in respect of the gold, I do not deem it proper to go into this question. It will be for the customs Authorities to examine this question and I am sure necessary relief will be given to the appellant if his contention is found valid. Finally the counsel for the appellant submitted that the fine of Rs. 5,000 is rather excessive having regard to the fact that the appellant is a poor and ignorant labourer who had returned to his country after a long stay abroad having no knowledge of the Customs Rules and Regulations. The learned Special Judge had also accepted this submission and held that these circumstances mitigate the nature of the offence committed by the appellant. In my opinion, a fine of Rs. 1,000 and in default S. I. for one month would be sufficient to meet the ends of justice.

7. In the result, this appeal succeeds partially so far as the sentence is concerned and is otherwise dismissed. Tae fine of Rs. 1,000 shall be paid by the appellant within one week and upon such payment the bail bond shall stand discharged. The appeal is disposed of in these terms. Order accordingly,