P L D 1952 Lahore 632 (PLP)

MUHAMMAD JAN, J.‑Mr. J. A. Humphrey, an Engine Driver of the North‑Western Railway, was convicted under section 167, clause (8) of the Sea Customs Act read with section 9 of the Land Customs Act and sentenced to a fine of Rs. 500 or in default to simple imprisonment for six months. His appeal having failed, he has come up in revision to this Court. The relevant portion of section 167, clause (8) of the Sea Customs Act, reads as follows:‑‑ " If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from the Provinces and the Capital of the Federation contrary to such prohibition or restriction, such goods shall be liable to confiscation, and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods, or, on conviction before a Court, to imprisonment for any term not exceeding seven years, or to fine, or both". Chapter IV inter alia describes the goods which are for bidden from being brought into the Provinces and the Capital of the Federation and empowers the Central Government to prohibit by notification in the Official Gazette the bringing of goods of any specified description into the Provinces and the Capital of the Federation. According to the evidence of Sleem Ahmad, Appraiser, Office of the Collector of Central Excise and Land Customs (C. W. 2), the import of gold thread into Pakistan is prohibited by a special notification promul gated by the Central Government. That notification has not been produced, nor have any particulars been given by the witness relating to it. The relevant portion of section 9, Land Customs Act (XIX of 1924) is that the provisions of the Sea Customs Act, which are specified in the Schedule, together with all notifications, orders, rules, or forms issued, made or prescribed thereunder, shall, so far as they are applicable, apply for the purpose of the levy of duties of land customs under this Act in like manner as they apply for the purpose of the levy of duties of customs .on goods imported or exported by sea. The facts of the case are that, on receiving some informa tion that the petitioner was smuggling gold thread from India into Pakistan, Hashmat Ali, A. S. I. (P. W. 4) went with Foot Constable, Ghulam Hussain (P. W. 6) to Moghal pura Railway Station on 20th May 1950. At about 1‑30 P.M. the petitioner arrived at Moghalpura Railway Station with the parcel train, No. 67‑Up. This train runs between Lahore and Attari (India). The intervening stations between Attari and Lahore are Wagha, Jallo, Harbanspura and Moghalpura. Wagha is the border between Pakistan and India ; and Jallo, Harbanspura and Moghalpura are in Pakistan. According to Hashmat Ali, A.S.1, when the train 5stopped at Moghalpura Railway Station, the petitioner handed over a bag (Exh. P. 1), to a cooly named Shabbir Ali (P. W. 3). Hashmat Ali took the bag from the cooly and, on opening it, found 20 guchhis of gold thread (Exh. P. 2) in it. A report rela ting to this incident was registered and the petitioner was tried and convicted as mentioned above. The question is whether the petitioner has been guilty of importing the gold thread into Pakistan, assuming that its import has been forbidden by law. There is no evidence to show from where the petitioner had brought this gold thread. If he had brought it from Jallo or Harbanspura, which are in Pakistan, there would be no importation of the gold thread into any Pro vince of Pakistan. The word " import " means bringing something into a country from an external or foreign source (Odham's Dictionary) ; to bring from abroad (Chamber's Dictionary) ; to bring wares or merchandise into a place or country from a foreign country (Webster's Dictionary) ; to bring goods and merchandise into a country from abroad (Wharton's Law Lexicon). The burden of proving that the gold thread had been imported into Pakistan by the petitioner from a foreign country was on the prosecution and that burden has not been discharged. The learned counsel for the Crown argues that, if the petitioner had brought the gold thread to Moghalpura from some place in Pakistan, this was a fact specially within his knowledge and it was for him to prove it. The petitioner did not take up this defence. He denied that he was in possession of the gold thread or that he deli vered it to any one. The learned counsel for the Crown agrees that even if he had admitted possession of the gold thread, that alone would have constituted no offence under the Customs Act. The offence is the importing into Pakistan of prohibited goods except in the manner prescribed by law and this had to be proved by the prosecution. It is urged that under section 106, Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him and if the accused had brought the gold thread from anywhere other than India, he should have said so and proved it. The general rule contained in section 106, Evidence Act, cannot be applied indiscriminately to Criminal cases. It does not affect the onus of proving the guilt of an accused person which always rests on the prosecution ; nor does it cast any burden on an accused person to prove that no crime was committed by proving facts specially within his knowledge. Section 106, Evidence Act does not warrant the conclusion that if anything is unexplained which the Court thinks the accused could have explained he ought to be found guilty. This has been clearly held by the Privy Council in Attygalle v. The King A I R 1936 P. C.

169. It is only after the pro secution have made out a prima facie case against the accused and he pleads that, in view of the circumstances alleged by him and denied by the prosecution, he has not been guilty of any offence that he may be justifiably called upon to show that those circumstances exist. But where the prosecu tion have not made out any case against the accused, he is under no obligation to prove that he is innocent. In King Emperor v. Santa Singh A I R 1944 Lah. 339 it was observed by a Full Bench of this Court (page 346) that section 106, Evidence Act, does not affect the onus of proving the guilt of the accused. That onus rests on the prosecution and is not shifted to the accused by reason of that section. It is not sufficient for the prosecution to establish facts which only give rise to a suspicion and then, by reason of section 106, Evidence Act, attempt to throw the onus upon the accused to establish his innocence. It is further urged on behalf of the Crown that the petitioner is an Engine Driver and has nothing to do with gold thread, that he went to India daily and had the opportunity of importing goods from there and that his denial of the possession of the bag containing the gold thread showed that he had committed the crime. These facts, to my mind, do not prove the offence of which the petitioner has been convicted and his conviction can be set aside on the simple ground that the prosecution have failed to prove that he imported the gold thread into Pakistan. But the learned counsel for the petitioner draws my attention to certain facts which make the prosecution case doubtful on merits also. For example : according to Hashmat Ali. A.S.I., the bag containing the gold thread was handed over by the petitioner to Shabbir Ali, cooly as soon as the train was stopped, but Ghulam Hussain, Foot Constable (P. W. 6) said in cross‑examination that the bag was given to the cooly when the engine had started after detachment. Bashir‑ud- Din (P. W. 2), Inspector of Land Customs, Lahore, has stated that he was escorting 67‑Up parcel train from Wagha to Lahore and had searched the train, with his staff, at Wagha and found nothing wrong. According to him, after the train reached Moghalpura, it started shunting and when it was ready to start, after half an hour, he sat down in the brake van with the Guard and when it had travelled about ten yards it was stopped. He got down from the train and asked why it was stopped. He was told by Hashmat Ali. A.S.I. that he had caught a man who had informed him that when the engine of the train was shunting somebody from the engine had thrown the bag (Exh. P.1) at him. This statement of Hashmat Ali made to Bashir‑ud‑Din, Inspector contradicts the statement made by him in Court that the bag was given by the petitioner to Shabbir Ali, cooli as soon as the train was stopped at Moghalpura Railway Station. Shabbir Ali, cooly said that the bag was given to him after the engine had been detached and that he had got into the engine from the rear side and‑out of it on the station side. Ghulam Hussain (P. W. 6) stated that he was posted on the off side of the train and Shabbir Ali got into the engine from that side and also came out of it from the same side. Shabbir Ali said that the petitioner had taken the bag out of a receptacle in the engine called donkey; evidence has been adduced by the petitioner to show that there was no donkey in this engine. Thus, on facts also the case against the petitioner is not free from doubt and, accepting the petition for revision, I set aside his conviction and order that the amount of fine, if paid, shall be refunded to him. K. A. M. Revision accepted