1989 PLP 4051 (MLD)

Ishtiaq Ahmed, P.W.3 has deposed that on 14-6-1980, he was on duty from 9 a.m. to 9 p.m. at Terminal I of Karachi Airport. At about 7-30 p.m. Custom Officer, Mr. A.H. Farooqi, called him and Muhammad Sher in the Custom Examination Hall. The present accused alongwith one washing machine and one hand bag was present in the Custom Examination Hall. Custom Officer opened the upper part of the machine and it was found to contain some cosmetics. He also opened the bottom of the washing machine and secured watches wrapped in sari kept in the side of the bottom of the machine. The wrist watches were 552 in number and were of different makes. The Custom Officer also searched the person of the accused and secured P.1 AA ticket, excess baggage ticket, two tags, one national identity card, passport, boarding card and one `A' Form Exhs.4-B/1 to 4-B/9 and 4-E were the same. The Exh.4-B/5 (counterfoil of tag was secured from the personal search of the accused while Exh.4-B/9 (the tag) was attached to the washing machine). The `A' Form Exh.4-E declared only one machine and there was no mention about watches. The Custom Officer had prepared Mashirnama as well as inventory and they had signed both the documents after reading the same. Mashirnama Exh.4-A was the same. He has produced inventory as Exh.5-A. The washing machine and the wrist watches in Court were the same. The accused present in Court was also same. In cross examination he has deposed that his duty was at the Lost and Found Baggage Counter which was at a distance of about 20 feet from the Customs Examination Hall, in the same Arrival Lounge. No other P.I.A. Officer was present, at the time when he had witnessed the recovery. Some loaders were present in the Lounge. The other Mashir Muhammad Sher was the P.IA. Security Guard. He was also on duty at the relevant time in the same arrival lounge. A number of Customs Officers were near the accused in the Customs Hall. The washing machine was kept in the carton and the- carton was wrapped with brown paper and on such wrapping the name of the accused was written. The brown paper is not present in the Court. This fact was not mentioned by him in 161, Cr.P.C. statement. There was no marking on the machine itself, to show as to wherefrom the machine was brought. The tag was attached to, the machine. He has denied a suggestion that no recovery was made from the possession of the accused in his presence and that he was deposing falsely at the instance of the Customs Officers. Noor Muhammad Soomro, Investigating Officer, P.W.4, has deposed that on 16-6-1980, the investigation of this case was entrusted to him. He recorded the statement of Seizing Officer A.H. Farooqui on 22-6-1980. On 23-6-1980 he recorded the statement of Ishtiaq Khan and Muhammad Sher. He also interrogated the accused. He got appraised the value of the property. The accused did not produce any proof or documents before him for establishing the lawful possession of property. After completing investigation, he challaned the accused before the Court on 28-6-1980. In cross-examination he has deposed that he did not make any inquiry from the P.IA. mishandling section. He had not made any investigation regarding the mishandling of the baggage of the accused, as the case papers entrusted to him for investigation indicated that tag attached to the machine tallied with the counterfoil recovered from the possession of the accused. The accused had cleared all his goods except the unaccompanied washing machine and for the declaration of washing machine he had obtained-`A' Form. The washing machine was liable to payment of duty, as the stay of the accused was only for eight days at Dubai. The procedure for release of unaccompanied baggage is different, than the one meant for accompanied baggage. He had not made any inquiry from the P.I.A. whether or not the excess baggage ticket was issued in the name of the accused. The case papers contained excess baggage tag, and it was reportedly recovered from the possession of the accused. It also mentioned the tag number of the accused. He has denied a suggestion that he did not make investigation and that he challaned the accused simply on the basis of the case papers handed over to him. The learned Special Judge while relying upon the above ocular as well as documentary evidence has convicted and sentenced the appellant as described above. The present appeal is directed against the above judgment of conviction. I have heard Mr. Sohail Muzaffar, learned counsel appearing for the appellant, Mr. Muhammad Akmal Wasim appearing for the State, and have gone through R&P of the case. It was contended by Mr. Sohail Muzaffar, learned counsel appearing for the appellant that there was non-compliance of sections 139, 142 and 159 of the Customs Act inasmuch as neither any declaration was sought from the appellant nor the search was taken in presence of a Gazetted Customs Officer or Magistrate and, therefore, search and subsequent proceedings were void ab initio. He has further contended that the prosecution story was unnatural and unreliable. Moreover, Mashir Ishtiaq A. Khan had made improvement in his evidence and, therefore, no reliance could be placed on the evidence of recovery. In support of his contentions the learned counsel has relied upon the case of Zahid Ali v. The State P L D 1987 Kar. 399 and 1984 P Cr. L J 1133. Mr. Muhammad Akmal Wasim, learned counsel appearing for the State has contended that the declaration was to be made by the appellant, and there is nothing in section 139 which enjoins upon the Customs Officer to seek declaration from the passenger. However, the complainant had enquired from the appellant and his reply was in negative. That according to section 159(1) the person to be searched may desire to be taken for search before Gazetted Officer of Customs or Magistrate, and that the Officer of Customs shall inform such person about his such right. In the present case the recovery was made from the washing machine and, therefore, the provisions of subsection (1) of section 159 of the Customs Act were not applicable. It was further contended that it was the duty of the appellant to show that some provision of law was infringed which had prejudiced his case. In support of his contentions, the learned .counsel has relied upon A I R 1958 Manipur 45 and A 1 R 1955 SC (India)

196. He has further contended that the tag recovered from the appellant tallied with the tag which was attached to the washing machine. Moreover, no enmity has been alleged against the complainant or the Mashirs, and therefore, their evidence could not be doubted. In view of the above circumstances it was further contended that the prosecution had proved its case against the appellant beyond reasonable doubt and the appellant was rightly convicted. I have considered the contentions. The evidence- of complainant Abdul Haq Farooqi P.W.2 shows that the appellant collected the washing machine from the conveyor belt, placed the same m trolley and was taking it out from the custom hall without examination of Customs Authority. He had reached near the gate when he intercepted him. He then called two Mashirs namely Ishtiaq and Muhammad Sher, and in their presence asked the appellant if he had anything to declare to which he replied in negative. Thereafter the machine was checked and on opening the bolts of bottom of the machine 552 watches were found concealed in the bottom of the washing machine. The accused was also found in possession of P.I.A. Ticket, excess baggage ticket, claim tickets, National Identity Card, Boarding Card, `A' Form. He has further ,stated that the tag (Exh.4-B/5) recovered from the appellant tallied with the tag Exh.4-B/9, which was attached to the washing machine. In the `A' Form Exh.4-E accused had mentioned one washing machine only. The evidence of complainant is fully supported by Mashir Ishtiaq P.W.3, who was also on his duty at the Airport on the day of incident and was made Mashir of recovery of watches from the bottom of the washing machine possessed by the appellant, and other articles secured from his possession. He has also supported the complainant on the point of recovery of tag from the appellant which tallied the tag which was attached with the washing machine. No enmity was suggested to the complainant and Mashirs in cross-examination. From the B, above discussion it is clear that the appellant was found in possession of washing machine from the bottom of which 552 wrist watches were recovered by the complainant. Adverting to the legal objections raised by the learned counsel, it will be appropriate to refer to the provisions of sections 139 and 159 of the Customs Act:- "139.Declaration by passenger or crew of baggage-- The owner of any baggage whether a passenger or a member of the crew shall, for the purpose of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such article for examination:" 159: Persons to be searched may desire to be taken before Gazetted officer of Customs or Magistrate,

(1) When any officer of customs is about to search any person under the provisions of section 158, the Officer of Customs shall inform such person about his right to be taken to a Gazetted Officer of Customs or Magistrate, and if such person so desires take him without unnecessary delay to the nearest gazetted officer of customs or magistrate before searching him, and may detain him until he can be so taken. (2) The Gazetted Officer of Customs or the Magistrate before whom such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person and record reasons for doing so, or else direct search to be made. (3) Before making a search under section 158, the Officer of Customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do: and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or ' other person and signed by such witnesses. (4) A female shall not be searched except by a female. The bare reading of section 139 of the Customs Act will show that owner of baggage whether a passenger or a member of the crew shall, for the purpose of clearing it, make a verbal or written declaration of its contains. In this connection the evidence of complainant Abdul Haq Farooqi clearly shows that he had asked the accused/appellant if he had anything to declare to which he replied in negative. In view of this evidence of the complainant and in the absence of any suggestion from, the appellant in cross-examination that he had declared or informed the Customs Officer about the watches kept in the bottom of the washing machine, I am of the considered view that there was no violation of provisions of section 139 of the said Act. As far as section 159, subsection (1) of the Customs Act was concerned, it clearly speaks about the search of a person and does not talk about the search of the baggage, and since in the present case it was the washing machine which had to be searched, the only requirement under section 159(3) of the Customs Act was that the search had to be taken in presence of two or more persons, and it is the case of the prosecution that the washing machine was searched and its bottom was opened in the presence' of Mashirs Ishtiaq and Muhammad Sher hich is further supported by Mashir Ishtiaq A. Khan. So far the decision in the case of Zahid Ali and two others v. The State reported in P L D 1987 Kar. 399 relied upon by the learned counsel for the appellant was concerned, the same is distinguishable and with utmost respect does not apply to the facts of the present case. Inasmuch as in the reported case four accused were searched separately by Seizing Officer and different quantity of gold was recovered from them as a result of four different searches but in spite of that only one Mashirnama was prepared for all the four searches that too not on the spot but in the office of Superintendent of Customs. Even the two Mashirs in whose presence the search was taken and recoveries were made did not support the prosecution case. In addition thereto one of the -Mashir who had not supported the prosecution was neither declared hostile nor cross-examined and, therefore, it was held by-my learned brother that:- "As search of recoveries could not be proved for want of evidence and non-compliance of requirement of subsection (3) of section 159 of the Customs Act, the convictions and sentences of appellants could not be sustained on the sole testimony of the Seizing Officer." The above facts of the reported case and the observations made by the Court clearly show that the same are not applicable to the facts of the present case. The second case of Abdus Salam v. The State 1984 P Cr. L J 1133; relied upon by the learned counsel for the appellant is also distinguishable inasmuch as the allegation against the appellant m the reported case was that he had 'attempted to smuggle 5-1/4 Kg. of silver from Lahore to Dubai. It was observed that no declaration written or oral having been obtained and since the article had not yet left the country, the offence of smuggling had not matured. Moreover the stand taken by the appellant in the reported case in his 342, Cr.P.C. statement was that:- "I had told Mr. Afzal within the hearing of Bashir Anjum who was at short distance whether I could take silver to Dubai with me or not. There was a great rush and Afzal passed on my attache-case to Bashir Anjum. On account of rush my request was not heard by anyone and I was arrested." It was further observed that there was no evidence to suggest that the appellant had been asked to make any declaration or that he had otherwise himself made any false declaration or had avoided to answer any question or tried to put off the Customs Officer. There was also no evidence that the silver had been kept in a manner as to avoid detection in ordinary course of search and, therefore, it was held that the appellant was not liable even for attempt to smuggle silver out of Pakistan. In the present case, the case of the prosecution is that the watches were concealed in the bottom of the washing machine and on inquiry by the complainant the appellant did not declare that the watches were there. Even `A' Form recovered from the possession of the appellant clearly makes a mention of washing machine only. In view of the above discussion I agree with Mr. Muhammad Akmal Waseem, learned counsel appearing for the State that there was no contravention of the provisions of sections 139 and 159 of the Customs Act. There was overwhelming natural and reliable, ocular as well as documentary evidence against the appellant and, therefore, he was rightly convicted by the trial Court. However, I have given my anxious consideration to the question of sentence. The incident took place on 14-6-1980 and the case was decided on 16-9-1981, the peal was filed on 17-9-1981, the appellant had to face agony of protracted trial before the trial Court and before this Court for more than nine years. He has remained in custody as undertrial prisoner for one month, and for twenty days after his conviction. Therefore, I am of the considered view that the substantive sentence already undergone by the appellant will meet the ends of justice and, therefore, the same is reduced accordingly. However, the sentence of fine is maintained. 'The appellant shall pay Rs.20,000 (Rupees twenty thousand) as fine within one month in default of payment he shall suffer R.I. for six months. With this modification, the appeal is dismissed. S.A./L-33/K Sentence reduced.