1997 PLP 1708 (MLD)

8. The very basis of the entire prosecution's case is the assumption that the suitcase in dispute belonged to the appellant. There can be no doubt that the burden of proof to establish recovery of the suitcase and connect the same with the appellant accused rested entirely upon the prosecution which it had to prove beyond all reasonable doubt. The point that in matters pertaining to Customs the principle of burden of proof is different from other criminal cases not involving Customs and in the former the entire burden is upon the accused is not applicable where the very possession is in dispute. There can tie no presumption or assumption regarding possession which has to be established by the prosecution beyond all reasonable doubt. (See section 187 of the Act, 1969 and Qamar Ali v. The State 1975 PCr.LJ 797). Also in the context of how the principle of burden of proof is to work in Customs cases even where possession is not in dispute 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 misdeclaration 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 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 where 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 condition 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 directly in issue in this case i.e. whether the burden of proof solely lies upon the petitioner to disprove allegations of mis-declaration and mis-description 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 177‑A 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 section 177‑A 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 the entire burden of proof shall be on that 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 Sarder Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC

325. In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has been acknowledged, however, the reason as to why such a legal fiction takes 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 become 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 end 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 erstwhile 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 193‑G of the Sea Customs Act which is almost identically worded to the present section 187 of the Customs Act. The said section 193‑G 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 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.' 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 in entirety 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."

9. The matter pertaining to possession of the suitcase in the present case was held in dispute as all along the appellant had challenged the same. The requirement in the present circumstances of having independent Mashirs of seizure of the suitcase could not be dispensed with as the very identity of the suitcase was crucial and subject‑matter of challenge by the appellant. Apart from a notice under section 171 of the 1969 Act there existed no other document which could connect the appellant with the suitcase. As regards the notice under section 171 the same itself was challenged by the appellant especially when the seizing officer admitted that he had not written the notice himself (and only signed it) nor the prosecution brought forth the testimony of the person having written the said notice in his handwriting. The grave infirmity obvious in the conduct of the prosecution being its default to comply with Customs General Order No.12 of 1986, dated 31‑7‑1986 prescribing procedure for storage/sampling of seized heroin and other narcotics which I reproduce for the sake of convenience:‑‑ "Subject: Storage/sampling of seized heroin and other narcotics. The Central Board of Revenue is pleased to lay down the following procedure regarding sampling, testing and storage etc. of seized/confiscated heroin and other narcotics:‑‑ (i) The seizing Officer/officials shall conduct an on spot test with field kits to satisfy themselves that the seized substance is heroin. The officer performing the test with field kit shall prepare a written memo. to the effect that he performed the test and it showed positive result about the presence of heroin etc. and other Officers/staff accompany him shall sign the written memo. as witnesses to the said test. The fact about the test with field kit and the positive result shall invariably be mentioned in the F. I. R. and AIR. (ii) After seizure of heroin and other narcotics three samples shall be drawn. Each sample will be carefully placed in a polyester/polythene bag 8 x 10 c.m. avoiding contact with moisture and heat. The bag should be sealed electrically (with a domestic hand sealer), with due care not to allow the sample to come in contact with the hot part. The sealed polyester polythene bags shall be further sealed in a cloth bags ? 12 x 15 c.m. with the conventional lac seals. The seizures should be sampled for laboratory examination according to the following minimum quantities:‑‑ (1) Heroin 5 gm. Approximately (2) Charas/Cannabis/Hashish 10 gm. Approximately (3) Hashish oil 10 gm. Approximately (4) Opium 10 gm. Approximately (5) Drugs in the form of tablets or capsules. 10 tablets/capsules (iii) Each sample will be sealed by the seizing officer who shall affix his signatures both on the polyester/polythene and cotton bags alongwith his name and designation. Another officer/staff present on the spot will also sign likewise as a witness. All the signatures will be put in such a manner that the same cannot be obliterated/destroyed without tearing or damaging the bags. (iv) Out of the three samples drawn, one shall be sent to a customs laboratory and the second to an independent Government Laboratory e.g. Forensic Drug Laboratory, National Institute of Health, Islamabad and P. C. S. I. R. etc. for test in order to determine the percentage content of heroin alongwith the nature and percentage of residuary substances/nature of the seized narcotics. Seizing Agencies other than Customs will likewise send samples to two different Laboratories. Samples will be invariably sent/handed over to the Head of the Laboratory or an officer designated by him. Proforma annexed to this order shall accompany the samples for laboratory tests. The third sample shall be deposited in the State Warehouse alongwith the seized consignment for future reference. On receipt of test reports, copies thereof shall be forwarded to the adjudicating Officer and the Court before whom the accused are undertrial. (v) Narcotics and psychotropic substances will be stored separately from other goods in a safe/strong room which should be provided in the premises of State Warehouse. Heroin has already been declared as 'valuable' vide Customs General Order No.27 of 1983, dated 14th December, 1983 (reported as PTCL 1984 St. 129(ii) and the provisions of Customs General Order No.66 of 1973, dated 19th November, 1973 are applicable to its storage etc. The heroin sealed in polyester/polythene and cotton bags shall be kept in steel Almirahs/steel trunks under double lock in the State Warehouse and one of the keys of the lock shall be with a BPS‑17 Officer. The safe strong room should be electronically guarded and for the safe custody of such substances close circuit TV system/burglar alarm system should be provided to guard against theft and pilferage. Where the seized consignment is heavy, the sealed polythene/plastic and cotton bags may be placed in steel trunks which shall be padlocks. All the padlocks will also be sealed and the seizing Officer/depositing the seized heroin in State Warehouse will put his signatures on each padlock. The seized narcotics, particularly heroin, will be deposited in the State Warehouse not later than forty- eight hours after the seizure. (vi) Each Director‑General/Director/Collector/Head of the other seizing Agency shall constitute a Committee consisting of Officers not below the rank of an Assistant Collector/Assistant Director or an Officer of equal rank and Collector/Assistant Director or an Officer of equal rank and a representative of the Pakistan Narcotics Control Board (PNCB) to supervise destruction of heroin and other narcotics, by burning. The confiscated narcotics will be destroyed only after the final completion of the case both in the Court of law and the departmental adjudication or after the completion of adjudication proceedings with the permission of the Court, in which case at least 3 samples will be retained in the manner as the Court directs. A written memo. shall be prepared in quadruplicate at the time destruction indicating the particulars of the case and the quantity destroyed. The officer putting the narcotics to fire shall sign the memo. indicating his name and designation alongwith the place, date and time of destruction. The Officer supervising destruction not below the rank of an Assistant Collector/Assistant Director or an Officer of equal rank, of an Assistant Collector/Assistant Director or an officer of equal rank, shall countersign the same while representative of P.N.C.B. and the concerned officer of State Warehouse shall sign as witnesses. One copy each of the memo. so prepared shall be placed on the record of State Warehouse, adjudication file, seizure file and the case file of the Court concerned with the trial of the case involving the narcotics in question. (2) the concerned Directors‑General/Directors/Collectors/Heads of the other seizing Agencies are required to make all necessary arrangements so as to enforce the provisions of sub‑paras (i) to (iv) above within a maximum period of three months from the date of issue of this General Order. The provisions of sub‑para. (v) above concerning installation of close circuit T.V. system or burglar alarm system and storage in steel Almirahs/steel trunks etc. will be enforced within six months of the issuance of this General Order subject to the availability of necessary funds to procure the required equipment etc. The provisions regarding deposit of seized narcotics in the respective State Warehouses not later than forty‑eight hours after seizure and the procedure regarding destruction of confiscated narcotics (para. VI above refers), will come into force with effect from 1st September, 1986. "

10. In view of the facts as pointed out above it is not safe to maintain the conviction of the appellant who is entitled to a benefit of doubt. In relation to the principle of benefit of doubt it would not be out of place to state its ethos which has been very aptly propounded in Ryan's Medical Jurisprudence, 1836, which is as under:‑‑-- " It is a preferable situation when 10 guilty men go un-convicted than one innocent man getting punished'. (for further references on this golden rule of benefit of doubt extending to the accused). See Sali Sheikh and another v. Emperor AIR 1931 Cal. 752, Zaab Din and another v. The State PLD 1986 Pesh. 188, Sikandar v. The State PLD 1963 SC 17, Muhammad Luqman v. The State PLD 1970 SC 10 and Syed Rahim Shah v. Government of N.‑W.F.P. and others PLD 1982 Pesh. 93. "

11. This golden rule of benefit of doubt emanates from the principle that in criminal cases the prosecution is to establish guilt regarding all elements of the crime beyond all reasonable doubts. In all civilized legal systems such is the position. It would not be out of context here to cite the American Jurisprudence (AJ) in this regard:‑‑ "(a) In a criminal prosecution, in order to warrant a conviction, the State is required, in the discharge of the burden imposed upon it of establishing by proof all the essential elements of the crime with which the defendant is charged in the indictment, to establish beyond a reasonable doubt that the accused is guilty of that crime; and in the absence of such a degree of proof of the defendant's guilt, he is entitled to an acquittal, regardless of whether his character is good or bad. It is not sufficient that the preponderance or the weight of the evidence point to the guilt of the accused. The rule obviously is based upon broad principles of humanity, which forbid the infliction of punishment until the commission of the crime is to a reasonable certainty established. It has received the sanction of the most enlightened jurists in all civilized communities, and in all ages; and with the increasing regard for human life and individual security, it is quite apparent that the energy of the rule is in no degree impaired. The rule requiring proof beyond a reasonable doubt applies to all crimes, regardless of their character or the degree of the crime. However, well‑founded the contention that more evidence should be required to convict of a serious crime than of a trivial one may be in morals or philosophy, it has no place in the law. The rule in all criminal prosecutions is that proof beyond a reasonable doubt is required. To sustain a criminal conviction for the violation of a penal statute it is not enough for the State to show that the prisoner indicated has violated the spirit of the statute, the evidence must show beyond a reasonable doubt that he has offended against the letter of the law. (Vol. 20 A. J. pp.1108‑1109). (b) The law imposes upon the State in a criminal prosecution the burden of proving the case set forth in the indictment or information, in all its material parts, beyond a reasonable doubt, and the jury in their analysis of the evidence must find, in order to convict, that all the elements of the crime charged have been established by such a degree of proof; otherwise, it is their duty to acquit the defendant. Each and every material and necessary fact upon which a conviction depends must be proved beyond a reasonable doubt." . . (Vol. 20 A.J. p. 1111). In view of the above the appeal is allowed and the appellant is acquitted. N.H.Q./R‑18/K Appeal allowed.