1968 P Cr (PLP)

The appellant Jan Mohammad was tried with four others namely Abdul Ghaffar, Yousuf; Abdul Kadir and Ismail under section 8(2) read with section 23 of the F. E. R. Act by the Foreign Exchange Tribunal Karachi, composed of Mr. Ghulam Hyder K. S. Pir, Sessions Judge, Karachi. In the result, whereas co‑accused Ismail was acquitted the appellant and the three others were convicted. The three co‑accused Abdul Ghaffar, Yousuf and Abdul Kadir who had pleaded guilty in the trial Court were convicted under section 8(l) read with section 23 of the F. E. R. Act and were each sentenced to imprisonment till the rising of the Court and a fine of Rs. 1,000 each or in default six months' R. I. The appellant Jan Mohammad was found to have abetted these three co‑accused and he was convicted under section 8(2) of the F. E. R. Act read with section 23 of the same Act and sentenced to R. I. for two years and a fine of Rs. 10,000, or in default six months' R. I. From these convictions and sentences this present appeal has been filed on behalf of the appellant, Jan Muhammad, alone.

2. The brief facts giving rise to this case are that on 6-8‑1964 at about I p.m. shortly before the departure of the I. A. C. Plane from Karachi to Bombay the three co‑accused Abdul Ghaffar, Yousuf and Abdul Kadir were detained in the Passenger Lounge at the Karachi Airport on suspicion by a police party consisting of the S. P. and the Dy. S. P., the Investigat ing Officer Asghar Ali Khan P. W. 9 assisted by Preventive Officer Ijaz Ahmed P. W. 1 who took their personal search but found nothing in the clothes they had on their persons or in their suit‑cases or boxes. Dr. Mahmood ul Hasan then Assistant Health Officer, Airport, was summoned and on examining the rectum of each of these three co‑accused he felt some hardness and addressed a letter to the C. M. O. Jinnah Central Hospital, Karachi, suggesting an X‑ray Examination of these three co‑accused At the same time, that these three co‑accused were secured from the Passenger Lounge of the Karachi Airport the appellant Jan Mohammad and one Irshad Hussain P. W. 8 who were then also at the Airport upstairs in the visitors gallery were asked to accompany the Police party. The three co‑accused were then taken to the Jinnah Central Hospital where they were examined by Dr. Anwarali and X‑rayed by Dr. Qamrunnisa P. W. 6 and Allauddin P. W. 7 Dark Room Assistant, Jinnah Hospital. The X‑ray photos showed an opaque shadow in the lower part of the abdomen indicating the presence there of a metallic substance. The three co‑accused were then told that an operation would be performed upon them but they volunteered to pass out the foreign substance themselves and on being sent to a latrine each of them pushed out from his rectum ten bars of gold tied with a tag two pieces in one weighing in all 300 tolas. There after, fresh X‑rays were taken which did not disclose any opaque shadow. In the meanwhile, the appellant Jan Mohammad was taken to the office of the Special Police and placed under Arrest. The gold was sent for examination to Wali Mohammad P. W. 5 Gold Tester of the National Bank of Pakistan who identified the 30 bars of gold weighing ten tolas each as Johnsen Methes 9990 London the value of which was Rs. 132 per tola in Pakistan but Rs. 145 per tola in India. He further opined that this was pure gold such as is not imported in Pakistan. On completion of the investigation into this case the appellant with the three convicted co‑accused and acquitted co‑accused Ismail was challaned before the Foreign Exchange Tribunal.

3. The appellant in his statement under section 342, Cr. P. C. in the trial Court denied each and every allegation put to him. He denied knowing his associate Irshad Hussain P. W. 8 as well as any of the four co‑accused. He denied having supplied this gold weighing in all 300 tolas to Abdul Ghaffar, Yousuf and Abdul Kadir with instructions to carry it to Bombay there to be handed over at the Airport to one Allahyar Khan. He attributed his presence in the public visitors gallery at the Airport on the day arid at the time in question to his having gone there to receive his brother. He stated that the prosecution witnesses have deposed against him at the instance of the police. He examined one witness in defence Abu Bakar son of Hussain who from his passport showed that he had returned to Karachi from Bombay on 8‑8‑64 and added that he was really due to arrive at Karachi from Bombay on 6‑8‑1964 but at the last moment failed to secure a passage on the plane of that day.

4. In this case the prosecution have examined no less than nine prosecution witnesses: but as the evidence of these mostly relates to the three co‑accused who have already pleaded guilty at the trial it becomes unnecessary when considering the case of the present appellant to discuss all this evidence. It' would suffice to deal only with the evidence so far as the present appellant is concerned. The principal witness against him is Irshad Hussain P. W. 8, and his evidence has been set out and discussed at length in the judgment of the trial Court. It is this witness who knew the appellant for the past 6 or 7 months and whose house the appellant engaged for the purpose of contracting his three associates Abdul Ghaffar, Yousuf and Abdul Kadir the last being his wife's brother. It was on a Thursday night in the month of August 1964 that the appellant asked Irshad Hussain to accommodate his guests in his house the following day for a period of about one and a half hours inasmuch as Irshad's family was residing in the same house he sent them away and handed it over to the appellant for the time required by him. The following morning at 11 a.m. Irshad Hussain pursuant to the instructions of the appellant brought Ghaffar and Yousuf in a taxi from Mere weather Tower together with their bags or suit‑cases to his house which was by then empty at what time the appellant reached there accompanied by his wife's brother co‑accused Abdul Kadir. In the presence of Irshad the appellant gave ten bars of gold to each of the three co‑accused Ghaffar, Yousuf and Kadir which they successfully inserted in their rectums. These three were due to leave for Bombay by the I. A. C. afternoon Plane and having set out for the Airport Irshad accompanied by the appellant followed them there at about 2 p.m. In the meanwhile, the Special Police Establishment, State Bank Branch, Karachi, having secured the three co‑ac‑used came to the visitors gallery upstairs and asked the appellant and Irshad to accompany them also.

5. This is the main evidence appearing on the record of this case against the present appellant. A glance at the remaining evidence available on this record discloses that it consists of P. W. 1, Preventive Officer, Ijaz Ahmed, who as mentioned above, searched the clothes and the suit‑cases of the three co‑accused but all to no purpose. P. W. 2 is Inshallah Khan an employee of the I. A. C. who produced the passenger list for Bombay of the I. A. C. Plane of that afternoon disclosing the names of the Abdul Ghaffar, Yousuf and Abdul Kadir thereon at Serial Nos. 24‑

26. P. W. 3 is the Assistant Health Officer of the Airport, Dr. Mahmood ul Hussain, who on finding some hardness in the rectum of each of the three co‑accused referred them to the Jinnah Central Hospital. P. W. 4 is the com plainant Mr. C. D. Butt then employed as Deputy Assistant Controller, State Bank of Pakistan duly authorised to file such complaints under the provisions of the F. E. R. Act. P. W. 5 is Wali Mohammad the Gold Tester of the National Bank of Pakistan and P. W. 6 and P. W. 7 are Dr. Qamrunnisa of the Jinnah Central Hospital and Allauddin the Dark Room Assistant. Lastly, there is the Investigating Officer, P. I. Asgharali Khan, P. W. 9.

6. On this evidence it was urged before me by Mr. I. A. Hashmi the learned Advocate appearing on behalf of the applicant that the conviction of his client could not be justified. He contended that the sole witness against him was Irshad Hussain P. W. 8 and that inasmuch as this witness had not been granted a Pardon and legally converted into an Approver, his evidence could not be looked at. Alternatively, Mr. Hashmi submitted that even if the evidence of P. W. Irshad Hussain be accepted it is plainly the evidence of an accomplice requiring substantial corroboration which is not available on the record of this case. Mr. Hashmi cited certain authorities in support of these contentions.

7. On the other hand, Mr. Osman Ghani appearing on behalf of the State submitted that the evidence of P. W. Irshad Hussain is clearly admissible under section 133 of the Evidence Act and that there are on the record sufficient pieces of corroborative evidence with which to corroborate the evidence of this witness. He referred me to these pieces of corroborative evidence.

8. It is true that in this case P. W. Irshad Hussain although close associate and accomplice of appellant Jan Mohammad has not officially been turned into an Approver under section 337, Cr. P. C. The reason for this, quite obviously, is that the offence alleged against the appellant not being one of these specified in section 337 (l), Cr. P. C. it was not legally possible for the prosecution to have the luxury of an Approver in this case. Hence, Irshad Hussain has figured as a prosecution witness. Even though he has not been made an Approver, it seems to me that his evidence can be taken into consideration' because section 133 states that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. I have considered the rulings relied upon by Mr. Hashmi: but even these do not go so far as to state that the evidence of an accomplice who has not been turned into an Approver is wholly inadmissible. In A I R 1935 Born. 186 a Bench presided over by Sir John Beaumont, C. J. held that the powers under section 337, Cr. P. C. ought to be exercised where the prosecution considers that the evidence of an accomplice is necessary and that the police have no right to take upon themselves not to charge a person against whom they have evidence because they require him as a witness. However, their Lordships went on to add that were, such an improper course is adopted the evidence of the accomplice so obtained is entitled to a very little weight. It is to be noted that their Lordships did not hold that such evidence is altogether inadmissible and of no weight at all. The next case relied upon by Mr. Hashmi was A I R 1953 Bhopal 21 in which a Single Judge characterised the practice by the police of usurping the power of the Magistrate in breach of section 337, Cr. P. C., as reprehensible. But even here although this practice had been condemned the evidence of such a witness was not altogether, excluded from consideration. The trial Court had treated such evidence as tainted and in need of independent corroboration. It is thus apparent that the two main cases relied upon by Mr. Hashmi in support of his contention that the evidence of P. W. Irshad Hussain is entirely inadmissible do not support that contention. This leaves, then, the alternative argument of the learned defence Advocate and in support of this argument Mr. Hashmi referred me to certain reported cases on corroboration and the quantum thereof required. But, as this branch of the Law has by now almost become hackneyed it is unnecessary to burden this judgment with these reported cases. It seems to me that the sole point of importance that arises for consideration in this judgment is whether the evidence on record contains substantial pieces of corroborative evidence and this brings me to the list of these pieces as stated in Court by Mr. Osman Ghani.

9. Now, the first of these pieces of corroborative evidence is the presence of the appellant Jan Mohammad in the public visitors gallery at the Airport on the very day and at the precise time that the three co‑accused were to leave by plane for Bombay. He has endeavoured to explain this away by saying that he had come there to receive his brother Abu Bakar D. W. 1 who was due from Bombay on that day. Abu Bakar, however, has stated in his evidence that he had sent a telegram to his brother Jan Mohammad concerning his arrival in Karachi but that telegram has not been produced either by the appellant or his brother Abu Baker. It is also in Abu Baker's evidence that he arrived from Bombay on 8‑8‑1954 and not on 6‑8‑1964. Secondly, the evidence of accomplice Irshad Hussain receives corroboration from the statements under section 342, Cr. P. C. of the three co‑accused. Co‑accused Abdul Kadir admitted visiting the house of Irshad Hussain at noon time on 6‑81964 where his two co‑accused Abdul Ghaffar and Yousuf were both then present. He admitted that all three of them were then given gold bars which they concealed in their rectums to be taken out of Pakistan. He admitted that the three of them had then gone to the Karachi Airport to fly to Bombay for the purpose of smuggling this gold out of Pakistan. He admitted that the appellant Jan Mohammad met them at the Airport that afternoon after they had been caught. He admitted that the three of them had got customs clearance and had passed through the customs formalities for proceeding to Bombay as Passengers Nos. 24, 25 and 26 of the Passenger List of the

1. A. C. Plane of that afternoon, that they were secured while sitting in the Departing Passengers Lounge, that they were then examined by the Assistant Health Officer, Karachi Airport from where they were taken to the Jinnah Central Hospital, Karachi, where after X‑rays each of them passed out the bars of gold concealed in their rectums. It is thus apparent that the entire prosecution case has been admitted by co accused Abdul Kadir except perhaps the fact that appellant Jan Mohammad had passed on this gold to him.

10. Co‑accused Abdul Ghaffar admitted in his examination under section 342, Cr. P. C. in the trial Court that he and Yousuf were taken at about 12 noon of 6‑8‑1964 by Irshad Hussain to his house where Abdul Kadir and appellant Jan Mohammad also came. He admitted his explanation Exh. 13 given by him to the State Bank authorities in which he had stated that he knew appellant Jan Mohammad who had agreed to employ him and ultimately took him into his service along with Irshad Hussain. This co‑accused filed a written statement in this trial Court in which also he admitted that he was engaged in the service of Jan Mohammad and that P. W. Irshad had taken him to his residence that fateful day where Jan Mohammad was present at the time. Similarly, co‑accused Yousuf also admitted the correctness of his explanation given to the State Bank Authorities in which he had stated that he had been employed by the appellant Jan Mohammad and that Irshad had taken him to his residence that fateful day at about lunch time where appellant Jan Mohammad was also present. This co‑accused had also filed a written statement in the trial Court in which he had admitted being in the service of appellant Jan Mohammad and that he was present that afternoon in the house of Irshad Hussain.

11. The third piece of corroborative evidence is the fact that appellant Jan Mohammad who had reserved the house of Irshad Hussain that afternoon for meeting the there co-accused, passing on the gold bars to them and seeing that they had securely inserted them in their rectums there and then was present that afternoon in this house when this operation was being performed. This is testified to not only by accomplice Irshad Hussain but as mentioned in the preceding paragraph 2 by the three co‑accused in their statements in Court as well. It is true that none of the three co‑accused not even Abdul Kadir the brother‑in‑law of appellant Jan Mohammad have stated that it was appellant Jan Mohammad who had delivered these gold bars to them: but, in view of the surrounding circumstances and the other evidence discussed above, it may well be assumed that it was appellant Jan Mohammad who was behind this whole affair and who was principally concerned with the smuggling of this gold from Pakistan to India.

12. In the result, therefore, I find no force in this appeal which is hereby dismissed. Appeal dismissed.