1976 P Cr (PLP)

(7) Pakistan Currency Note of denomination of Rs. 50 One (8) Ladies Chappals 12 Nos. (9) Suiting cloth 18 yards (10) Boski cloth 7 yards (11) Neckties 9 Nos. (12) Gents' shirts 5 Nos. (13) Wearing apparel 16 Nos. (14) Cotton cloth 1 yards. (15) Time piece One (16) Kitchen knives 4 doz. (17) Cassette Tape 2 Nos. (18) Plastic Mats 12 Nos. The launch "Al‑Madina" was thereafter brought to Karachi and mashirnama in respect of seizure of the property and arrest of the appellants were prepared in presence of masher M. A. Khan. A case was registered and investigated. Ultimately a charge‑sheet was submitted against the appellants on the basis whereof they were tried and convicted.

3. At the trial the prosecution examined Mumtaz Hussain Shah, the Superintendent of Customs who had received the initial information; Abdul Hameed, the Senior Preventive Officer and Muhammad Alla, the Wireless Operator who had been sent to intercept the launch "Al‑Madina", Mr. A. R. Khan, the Law Officer of the Customs who was present and took part in the investigation of this case; and masher, M. A. Khan. In their statements under section 342, Cr. P. C. each one of the appel lants was asked questions in regard to their presence on the launch and recovery of the contraband goods. Each one of them replied that it was correct that they were carrying the goods but they stated that the goods were not to be imported into Karachi and further that they did not know the nature of the goods. Appellant Zakaria son of Jaffer, the Tandel of the launch however, stated that it was correct that he was carrying the contraband gold and watches in that launch. The appellants also stated that they bad been intercepted and arrested on the High Seas but they did not specify the actual place of their arrest. The appellants also filed written statements in supplement to their oral statements under section 342, Cr. P. C. wherein they have stated that they were to proceed to Ceylon after touching some part in India. The appellants examined two witnesses in their defence who were Abdul Hakim and Khawaja Ihtesham Ahmed. Both these defence witnesses are journalists, and they sought to prove some press‑note purporting to reproduce reaction of Dr. Mubashir Hassan, the Federal Finance Minister, in regard to the seizure. The press‑note, a copy whereof has been placed on record also stated that the Navy have helped the Customs Officers in intercepting the seizure of the goods. The appellants had in their defence statements summoned some more witnesses including the Captains of Pakistan Navy Ships "Mubarak" and "Lahore" to appear and give evidence on their behalf, with the log Books in relation to the movements of these two ships. On 2‑8‑1973, the learned City and Additional District Magistrate Karachi, had ordered issuance of summons to these two Officers of the Pakistan Navy but it appears that the said Officers did not appear in Court for giving evidence, although the reasons for such absence are not clearly discernible from the record. The learned Advocate for the appellants made a grievance on such score on the grouted that they had been prejudiced in their defence. I had for such reason summoned the two witnesses in this Court under section 438, Cr. P. C. with a view to examine them. Mr. Shah Jamil Alam, the learned Deputy Attorney General appeared in Court and pressed a privilege in regard to Log Books of the two Naval Ships on the ground of the documents being in relation of secret affairs and the defence of the State. Mr. Shah Jamil Alam also produced a certificate signed by vice Admiral Hassan Hafeez Ahmed, the Chief of the Naval Staff, Pakistan Navy, claiming privilege. In support of such certificate of the Chief of Staff, Commander Arshad Rahim of the Pakistan Navy filed an affidavit. Regard being had to the provisions of section 123 of the Act and on consideration of the nature of the documents sought to be summoned by the appellants, I extended the privilege claimed by the Chief of Staff, who is head of the Department, and I must state that on production of the certificate issued by the Chief of Staff, the learned Advocates for the appel lants also did not press for production of these documents. The learned Deputy Attorney General, however, stated that he had no objection to the two defence witnesses being examined but requested me. to extend a warning to the witnesses to the effect that they were not bound to disclose any matter which directly or indirectly related to the movements of Pakistan Navy Ships, and the contents of the Log Books. Such warning was administered to the two witnesses Commander Arshad Rahim and Lt. Tajuddin Najmi, who were examined by the appellants. While Tajuddin Najmi has stated nothing in regard to interception of the launch "Al- Madina" or the seizure of the goods. Commander Arshad Rahim has stated that he had captured the launch in question on 28‑1‑1973 and had brought the said launch alongwith the crew and had handed over the same to the officers of the Customs Department. In examination‑in‑chief to Mr, Nasir Shah Mir, the learned Advocate for the appellants, no question was risked by the learned Advocate in regard to the place of interception of the launch or seizure of the goods, but in cross‑examination the learned Assistant Advocate General, who appeared for the State had asked a question from Commander Arshad Rahim in regard to the place of interception of the launch "Al -Madina" and the witness stated that the said launch was captured within the territorial waters of Pakistan, This witness also produced a notification of the Central Board of Revenue, Government of Pakistan dated 29th November 1971, whereby the Central Board of Revenue had in exercise of powers under section 6 of the Customs Act entrusted all the Commissioned Officers of the Pakistan Navy, the powers of an Assistant Collector of Customs.

4. In regard to the seizure of the launch and the goods secured from the launch there is no dispute in this case. Each one of the appellants has in his statement under section 342, Cr. P. C. admitted his presence on the launch "Al‑Madina" and the seizure of the goods in question. As far as appellant Zakaria son of Jaffar, the Tandel, is concerned, he knew the nature of the goods but the remaining appellants have denied the knowledge in regard to the nature of the goods. In regard to such disowning of knowledge I will consider the case in the latter part of the judgment. Suffice it to say for the present that there is no doubt in regard to the presence of each one of the appellants on the launch and the recovery of the goods from the launch. Placed in such circumstances, the learned Advocates for the appellants have mainly concentrated their attention on the point of interception and seizure of the launch. Their contention is that the launch was seized on the high seas and not within the territoral waters of Pakistan. On such point the only material on the record in they had been captured on the High Seas. They have indeed of stated that the actual point at which they were captured. On the other hand prosecution witness Abdul Hameed has stated that the launch was intercepted at a point 2 or 4 miles from the coast of Pakistan. This witness, had thereafter, taken the staff of Customs and pointed out the actual place of seizure. In like terms witness Syed Muhammad Alla had also stated that the launch was intercepted at a distance of 5 or 6 miles from the coast. Defence witness Commander Arshad Rahim has also stated that the launch "Al -Madina" was intercepted and captured within the territorial waters of Pakistan. Under section 2(p) of the Customs Act, the territorial Waters of Pakistan for purpose of Customs extend to 12 nautical miles from the coast. The version of the prosecution is definite and there appears to be no cogent rebuttal of the same. Mr. Nasir Shah Mir has referred to two cases of the Privy Council in that behalf. The same are the case of E. R. Croft v. Sylvester Dumphy (AIR 1933 P C 16) and the case of Chang Chi Chung v. The King (AIR 1939 P C 60). In none of these cases has anything been stated in regard to the extent of territorial waters but in the case of E. R. Croft, the principle of a State effectively legislating in regard to its territories, appears to have been recognised. It shall be of benefit to reproduce a passage from the said judgment. "It may be accepted as a general principle that States can legislate effectively only for their own territories. To what distance seaward the territory of a State is to be taken as extending is a question of international law upon which their Lordships do not deem it necessary or proper to pronounce. But whatever be the limits of territorial waters in the international sense, it has long been recognised that for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory." It would therefore, clearly appear that the demarcation of territorial limits is the function of the Legislature of a country and such territorial limits in relation to Pakistan extend upto 12 nautical miles from the coast. I am therefore, of the view that these goods and the launch in question were intercepted and seized within the Pakistan Waters.

5. The next contention of the learned Advocates is that the goods in question were in transit to Ceylon and were not meant for Pakistan. In such context a document which is a photostat copy of a Port Clearance Certificate issued by the Government of Dubai has been placed on the Miscellaneous record of the trial Court. Such document has not been proved in accordance with law. In any case I have examined the said document and I find that it is of a suspicious nature. This document which is a photostat copy, appears to bear a seal of the Customs House, Govern ment of Dubai. The seal on the document is indeed in original and not in photostat copy. There is no explanation as to why this original seal has been put on the photostat copy. What is more that this document bears a date which is not at all legible. In any case there is no means of knowing as to where the original of the said document is, nor has any witness been examined to prove the said document. On that aspect of the case I have been persuaded to examine the seizure memos, which show that at the time of seizure of the launch, the entire quantity of food available was only 10 seers of flour and 5 seers of rice. Admittedly, there were 8 persons on the launch and it has come in the evidence of prosecution witness Abdul Hameed that the speed of this launch was 6 to 7 miles per hour. Ceylon is approximately 1000 miles from Karachi and it should normally take 7 to 8 days for a launch of this kind to reach to the coast of Ceylon. This much quantity of food that has been found on the launch would not be sufficient for the 8 members of the crew on the launch. This is an additional circumstance which also can be used against the appellants to show that the launch in qustion was bound for Pakistan and not for Ceylon. I may also state that there is total absence of any claim by any person who may be owner of the goods on the ground that the contraband goods could attract the doctrine of frustrated cargo.

6. The next point is in regard to the knowledge of the appellants as to the presence of the contraband cargo. Appellant Zakaria son of Jaffar the Tandel has admitted that he knew the nature of the cargo. The remain ing appellants have however, stated that the launch was carrying some goods but they did not know the nature of the goods. It cannot be overlooked that goods in this case consisted of 37 Jackets of Foreign gold. Such jackets as are used for carriage of gold are easily identifiable. It is also establishes that more than 21000 pieces of watches were secured and the same had been placed in cardboard boxes which are normally used for storage of watches. The goods in question were lying in the "hold" of the launch. The members of the crew then would be reasonably presumed to know the nature of the goods that were being carried. Under such circumstances I am of the view that to such extent the defence of the appellants is not true, nor is it substantiated.

7. The learned Advocates have raised several other technical points in regard to the manner of search or seizure. It has been contended that notice in regard to search has not been placed on the record. In regard to search and seizure there is indeed no contest and there was no cross‑examina tion on the point of a notice having been given to the appellants before the seizure. It has additionally been contended that the charge in this case was defective, inasmuch as section 34, P. P. C. was mentioned in the charge when the proper section for impleading co‑accused is stated in' Pakistan Customs Act itself. Such provision is section 178 of Pakistan Customs Act. On a fair reading of the charge I find that the main allegations have been fully stated in the document and no prejudice has been caused to any appellant in his defence. In any case the amended section 537, Cr. P. C. would provide a complete answer to such defect in charge. Such point of criticism also lost its entire significance on account of the admission of the appellants.

8. On a consideration of all these facts and circumstances I am clearly of the view that the appellants have been rightly convicted. The only question then arises for consideration is the quantum of sentence. There is no doubt that the property involved in this case is valued at about Rs. 2 crores. However, it cannot be overlooked that the appellants were mar carriers, and the launch too has been confiscated by the Customs authorities in adjudication proceedings. I also cannot overlook that the appellants have remained to custody even during the trial. Regard being had to all the circumstances I am of the view that interest of justice will be adequately met by reduction of the sentence of each one of the appellants to R. I. fort two years and a fine of Rs, 10,000 (in default R. 1. for 9 months). While dismissing this appeal, I reduce the sentence of each one of the appellants to the terms stated. The appellants are in custody and shall undergo the balance of the sentence. Order accordingly.