LIAQUAT ALI Versus STATE

1. The appellant was charged under section 156(1)(8) of the Customs Act, 1969, for carrying 552 wrist watches of foreign made concealed in the washing machine, and was tried before the learned Special Judge (Customs and Taxation),Karachi, who has convicted and sentenced him to suffer R.I. for 1-1/2 years and to pay fine of Rs.20,000 in default of payment of fine to suffer further R.I. for six months vide judgment, dated 16th September, 1981.

2. The brief facts of the prosecution case are that on 14-6-1980 Mr. A.H. Farooqi, Senior Preventive Officer, Customs House, Karachi, lodged a report inter alia alleging therein that he received spy information that one Liaquat Ali who had arrived by P.IA. Flight No. PK-710, from Dubai, had concealed sizable quantity of watches in his washing machine which was expected to arrive from Dubai by P.I.A. Flight PK-214, as the same was mishandled on the former flight. Therefore, he kept vigilant watch and when the above accused attempted to take out the washing machine bearing Tag No.76-64-06 from the custom examination hall without custom examination, he was intercepted and caught red-handed, by the complainant. The complainant called two Mashirs namely Muhammad Sher and Ishtiaq A. Khan and examined the washing machine thoroughly in their presence which resulted in the recovery of 552 watches cleverly concealed therein. On personal search of the accused excess Baggage Tag No.214-45-117670-323, P.I.A. Ticket, Boarding Card, Claim Tag of washing machines, Identity Card, his two passports and Form `A' bearing No. 00225/D/80-II were found, and the same alongwith the above goods were seized in presence of the above Mashirs. The accused was arrested and such Mashirnama was prepared. Thereafter the complainant lodged the above F.I.R.

3. After usual investigation the appellant was challaned before the Court.

4. A formal charge was framed against the appellant to which he pleaded ' not guilty.

5. At the trial prosecution examined Muhammad Siddique, Appraiser Custom House, P.W.1, he has produced the valuation certificate of the watches recovered from the appellant as Exh.3-A, Complainant Abdul Haque Farooqi P.W.2 he has produced the Mashirnama of arrest and recovery as Exh.4-A, two passports, P.I.A. Ticket, excess baggage ticket, tag, National Identity Card, Boarding Card, a Card, Tag (which was said to have been attached with the washing machine) as Exhs.4-B/1 to 4-B/9. Copy of notice under section 171 of the Customs Act Exh.4/C and F.I.R. as Exh.4-D, Mashir Ishtiaq P.W.3, he has produced inventory as Exh.5-A, Noor Muhammad Soomro, Investigating Officer P.W.4.

6. After close of the prosecution case, statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegation. He also filed written statement stating therein that on 14th June, 1980, he arrived from Dubai to Karachi by P.IA. Flight No. PK-710. His luggage arrived a bit late and he collected and took the same to the customs counter for examination, his baggage comprised of one suit-case and one bag as was apparent from his ticket. The two pieces have been endorsed in the ticket. On his arrival while he was unlocking his suit-case a Custom Officer came and asked for his Passport. He saw his Passport and asked him to accompany him. He was taken to one side of the hall where a trolley was lying on which a packet was lying. The Officer asked him if it belonged to him as almost all the passengers had cleared up by that time. He told the Officer that he did not have anything except what he was carrying with him. In the meantime, another flight arrived from Gulf. The passengers started collecting there and he asked for leaving but the Officer told him to wait. One of the Officers on the spot prepared `A' Form in his name in respect of that machinery which fact can be verified from the signatures and the handwriting on the Form. He was welder by profession and prior to that he was Crane Operator in Dubai. He was a poor man and was hardly making his both ends meet. He had gone to Dubai to earn for his large family comprising of his old father, mother, younger brother and small sisters. He was law-abiding citizen and there was no occasion for him to indulge in such nefarious activities. He was drawing a reasonable salary there, and was enclosing the statement of his salary to prove this fact. He has also produced a card of his service alongwith photo copies of other card to show that he was a worker. The boarding card produced alongwith excess baggage does not belonged to him. He had left his boarding card on plane. Washing machine does not bear any mark or sign to show that it belonged to him. It belonged to someone else, and was foisted on him. He was an illiterate person and could only sign. He had been told that the wrist watches recovered from machine are of top quality and brand, and are very costly watches. He was not in position to buy such a stuff nor can he dream of buying one such watch. It was a case of false and wrong information and wrong identification. The actual culprit appears to have slipped out by arrangement and he was caught under wrong impression. He was innocent. Muhammad Siddique, P.W.1 has deposed that he had appraised the value of the property consisting of 552 watches on 23-6-1980. The total value of the watches was Rs.2,03,620 and he had issued such certificate which he has produced as Exh.3-A. All the watches were of foreign made. In cross-examination he has deposed that the value assessed by him was of genuine watches. He had not got examined these watches from any watch expert.

7. Complainant Abdul Haque Farooqi, P.W. 2 has deposed that on 14-6-1980, he was on duty at Terminal II at Karachi Airport. His duty was from 4-00 P.M. to 10-00 p.m. He had received spy information about accused Liaqat Ali. At about 6-30 p.m. accused entered arrival lounge. He had arrived earlier from Dubai. His one machine was mishandled and he had come to collect the same which had arrived by flight on 14-6-1980. The flight from Dubai reached about 7-00 p.m. He was watching the movements of accused Liaqat Ali. He collected machine from the conveyor belt, placed the same in 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 Joura. He asked the accused if he had anything to declare to which he replied in negative. He examined and checked the machine,, opened the bolt of bottom of the machine and found 552 watches concealed in the bottom of the washing machine. He had found some cloth and cosmetics also kept in the washing machine. On personal search the accused was found in possession of two passports, P.I.A. Ticket, excess baggage ticket, claim tags, National Identity Card, Boarding card, a card, and `A' Form which he secured. He also secured the washing machine and the watches and arrested the accused, under the Mashirnama, which was prepared in the presence of the above Mashirs, and the same has been produced as Exh.4-A. the articles secured from the person of the accused have been produced as Exhs.4-B/1 to 4-B/8. He has also produced a tag as Exh.4-B/9, which according to him was attached to the washing machine. The counterfoil tag Exh.4-B/5 tallied with tag Exh.4-B-/9 attached to the washing machine. He had also served upon the accused a notice under section 171 of Customs Act -there and then, copy of which has been produced as Exh.4-C. He then lodged the report which has been produced as Exh.4-D. He then handed over the case papers and the accused to the Investigation Branch, and deposited the goods in the Customs Ware House. He has also produced `A' Form as txh.4-E, which he recovered from the possession of the accused. The declaration made in this Form was only one machine. In cress-examination he has deposed that accused had mentioned in Form `A' Exh.4-E only one washing machine. He did not know if he had informed the P.I.A. Authorities that his washing machine was mishandled and that it was being brought by another flight. It was not necessary that every passenger should show invoice of the commodity or the articles to the Custom authorities, at the time of their checking. Re has denied a suggestion that at the time of interception he had not asked the accused to declare as to what he was carrying. According to him as far as he remembered, he did not state before the Investigating Officer that he had sought declaration from the accused and that the accused had not declared the watches. He had not informed the accused about -his right that he could ask for the search in the presence of any Gazetted Customs Officer or Magistrate. He did not obtain any signature of the accused on tag, boarding card, and the ticket. The boarding card and the excess baggage ticket did not contain the name of the accused. He did not remember after how much time of the arrival of flight PK 710, the other flight had reached. He denied a suggestion that he did not recover the excess baggage ticket, tags, boarding card from the accused. He also denied a suggestion that washing machine did not belong to the accused. He had not mentioned in the F.I.R. cosmetics and cloth etc. as these were not the offending goods. He has denied a suggestion that he had filed this false case against the accused.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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:-

16. "

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:"

17. 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.

18. 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.

19. 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.

20. 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:-

21. "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."

22. 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.

23. 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:-

24. "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."

25. 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.

26. 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.

27. 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.

28. S.A./L-33/K

29. Sentence reduced.