GUL AMAN Versus STATE
Appellant Gul Aman was tried by Mr. Nazim Hussain Siddiqui, Special Judge (Customs and Taxation) Karachi, for the offence under section 156(1)(8) of the Customs Act, 1969, who found him guilty and vile judgment, dated 4th October, 1990 sentenced him to suffer R.I. for 5 years and to pay a fine of Rs.300,000 (Rupees three lacs) or in default to suffer R.I. for one year more. By this appeal filed under section 185‑F of the Customs Act, 1969, the appellant has challenged his conviction and sentence.
2. On 10‑5‑1990 a credible information was received by Allah Wasayo Zubair, Preventive Officer, Pakistan Customs, that a passenger, by name Gul Aman, the appellant would attempt to smuggle a huge quantity of gold by P.I.A. Flight No.PK‑222 coming from Dubai. A strict watch was then maintained on all the incoming passengers of the aforesaid flight and the above passenger holding Pakistani Passport E 40412 was detained and he was asked to collect his baggage comprising of two suit‑cases. The said passenger was also asked to declare whether he was carrying any contraband goods in his baggage, but he replied in negative. Being dissatisfied Allah Wasayo Zubair, Preventive Officer, searched the suit‑cases and a radio‑recorder which the appellant was carrying with him in presence of mashirs Muhammad Ziauddin and Tahir Masood Cheema, which led to recovery of 500 tolas of gold, bearing foreign marks and numbers viz. `Swiss Bank Corporation 999.0' which were secretly concealed in the cavities of suit‑cases and the radio‑recorder. 80 metres of silken cloth was also seized from the possession of the appellant. Such inventory was prepared in presence of the aforesaid mashirs and the appellant was taken into custody. A notice under section 171 of the Customs Act, 1969, was served upon the appellant and after usual investigation he was sent up to stand trial.
3. The appellant pleaded not guilty to the charge framed against him and wanted to be tried. At the trial the prosecution examined Allah Wasayo Zubair, P.O. (P.W.1), Muhammad Ziauddin, Security Officer (P.W.2), Ishtiaq Ahmed, Jeweller (P.W.3‑1/2 and Mehar Muhammad 1.0. (P.W.4).
4. In his statement recorded under section 342, Cr.P.C. the appellant has denied the case of the prosecution by professing innocence. He did not step into the witness box for his statement under section 340(2), Cr.P.C. and also led no defence.
5. On the assessment of evidence available on record the learned Special Judge found the appellant guilty and convicted him accordingly.
6. I have heard Mr. Azizullah K. Shaikh, learned counsel for the appellant and Mr. Shamshad Alam Lari, learned counsel for the State. The latter has supported the conviction recorded against the appellant.
7. There is overwhelming evidence on record connecting the appellant with this crime. Allah Wasayo Zubair (P.W. 1), the seizing officer in this case, has deposed about the facts leading the apprehension of the appellant and recovery of 500 tolas of foreign gold from the baggage belonging to him, which was secretly concealed in the suit‑cases and the radio‑recorder. Nothing is elicited in cross‑examination of this witness to detract form the value of his testimony: The learned Special Judge, who had an occasion to see the demeanour of this witness found him reliable and I see no reason to differ from the assessment made by him. The evidence of Allah Wasayo Zubair f (P.W.1) gets full support from Muhammad Ziauddin, Security Officer, P.IA. (P.W.2) who has acted as mashir. His evidence shows beyond any shadow of doubt that the appellant was found in possession of 50 slabs of gold of foreign origin, which were recovered from the suit‑cases and radio‑recorder in his presence. Nothing is brought, out in cross‑examination of this witness to shake his credence. The learned counsel for appellant was also not able to pick holes in the testimony of these two witnesses.
8. It is, however, contended on behalf of the appellant that the metal so recovered from the possession of the appellant was not examined by any expert and consequently there is nothing on record to prove that the appellant was found in possession of the gold of foreign origin. The cases reported as Ramkaransingh v. Emperor AIR 1935 Nag. 13, Gobardhan v. The State AIR 1959 All. 53, Paltu Matabadal v. The State of Madhya Pradesh AIR 1961 MP 5, Carlus Lugh Caleagno and another v. The State 1976 PCr.LJ 643, Maqsood Ali v. The State PLD 1982 Kar. 352 and Shamman v. The State 1985 PCr.LJ 8, certainly give some colour to the point urged on behalf of the appellant. However, out of the above‑cited cases only one which is reported in PLD 1982 Kar. 352 relates to gold, while the rest are in respect of liquor and contraband charas. This case has also some distinguishing features as only an appraiser of the Customs department was examined to testify that the metal so recovered was gold and it was in that context that Zafar Hussain Mirza, J (as he then was) observed that the examination of an expert was necessary to determine whether metal was gold. The learned counsel for the appellant has also placed reliance upon the judgment of my learned brother Allahdino G. Memon, J. in Spl. Criminal Appeal No.12 of 1990 passed on 7‑10‑1990, wherein the following observations were made:‑
"However, it is admitted by Investigating Officer that the gold alleged to have been recovered from the appellant was not sent to Mint for examination. The witness Muhammad Usman Jeweller P.W. 6 has not stated in clear words that one of the articles examined by him was actually gold. In fact it appears that he was asked by the Investigating Officer to give valuation certificate, and the certificate, dated 4th April, 199(1 does not specifically state that one of the articles sent to him for examination was gold."
The observations made above arc confined to the facts of the said case. In this case the gold was examined by Ishtiaq Ahmed (P.W.5) who is a member of panel constituted by the Customs authorities for the purpose of examination of gold and other jewellery and he has stated on oath that he had tested the gold E and found it to be gold valued at Rs.17,00,000. Although he has not used any instrument for the purpose of testing the gold, but has made it clear that from his experience he could opine that the metal so examined was gold. There is no reason for this Court to doubt the veracity of Ishtiaq Ahmed (P.W.3), who fulfils all the conditions laid down by Qanun‑e‑Shahadat, 1984 for an expert. It may be added that this position was in fact accepted on behalf of the appellant and ground No.2 of the memo of appeal is self‑explanatory.
9. Having regard to the above factual and legal position I see no force ink this appeal, which is accordingly dismissed.
N.H.Q./G-289/K Appeal dismissed.