TAMAS KHAN Versus THE STATE

Tamas Khan (appellant) was convicted under section 156(1)(8) of the Customs Act, 1969 by the learned Special Judge Customs, N.-W.F.P. Peshawar on 19-1-1988 and sentenced to six years' R.I. with a fine of Rs.5,00,000 or in default thereof to further R.I. for two years. Co-accused Azam Khan, real brother of the appellant was, however, acquitted for lack of evidence. The appellant feeling aggrieved, has come in appeal to this Court.

2. The prosecution case against the appellant, who is an employee of the Airport Development Authority, is that on 23-3-1985 at about 5-00 p.m. when the Customs Staff posted at Peshawar Airport were busy in checking outgoing passengers' baggage, the appellant produced a carton at the Customs Checking Counter containing fresh vegetable and fruit and wanted to send it by P.I.A. Flight No.PK-331 to his brother Azam Khan who was working as Construction Surveyor in Doha. The search of the carton by Atta Muhammad Customs Inspector P.W.1 led to the recovery of two kilograms of heroin powder which was concealed among the fresh vegetable and fruit. Muhammad Iqbal Tareen, Deputy Superintendent Customs P.W.2 was present at some distance from the International Counter. He was informed about the recovery of heroin powder by Atta Muhammad Customs Inspector P.W.1. The appellant alongwith the seized heroin powder was taken to the Customs Office in the Airport Building where Recovery memo. Exh.P.W.l/1 was prepared. The appellant was served with a notice EXh.P.W.l/3 under section 171 of the Customs Act. A memo. regarding his personal search was also prepared which is EXh.P.W.l/2. A murasila EXh.P.X.l was prepared by Gul Muhammad Inspector Customs P.W.5 and forwarded to the Police Station, West Cantt. where the present case was registered against the appellant vide F.I.R. Exh.P.W.5/1. The prosecution case about the recovery of two kilograms of heroin powder from the appellant which was concealed in a carton containing fresh vegetable and fruit was proved at the trial from the testimony of Atta Muhammad, Inspector Customs (P.W.1), Muhammad Iqbal Tareen, Deputy Superintendent Customs (P.W.2), Rehmatullah Jan, Deputy Superintendent Customs P.W.3, Aurangzeb Khan Customs Inspector P.W.4. and Gul Muhammad, Inspector Customs, G.P.O. Peshawar P.W.5. The recovery memos. EXh.P.W.l/1 and EXh.P.W.l/2 alongwith the notice under section 171 of the Customs Act given to the appellant are also proved from the evidence of the aforesaid witnesses. Ghulam Kibriya, Deputy Superintendent, State Ware House, Peshawar P.W.6 produced the stock register before the trial Court and stated that the seized heroin powder was deposited in the State Ware House on 24-9-1985. He produced a photo copy of the relevant entry Exh.P.6/1 and also produced the seized heroin before the Court for inspection. The report of the Chemical Examiner Exh.P.A. is also in the positive.

3. The appellant in his defence pleaded innocence and his false involvement in the case. He denied the recovery of heroin powder from. his possession. Regarding the signatures on EXh.P.W.l/1, EXh.P.W.l/2 and EXh.P.W.l/3 he stated that his signatures were obtained on blank papers. He also gave evidence on Oath under section 340(2), Cr.P.C. and stated that during the relevant days he was working as a Foreman with A.D.A. at Peshawar Airport. On the day of occurrence he was present on duty near the Customs Counter at the time of departure of the flight bound for Dobai. Some luggage was lying at the counter of the Customs and he was called by the Customs staff present there. He disowned the goods but in spite of the fact that the goods did not belong to him he was apprehended and taken to the Customs Office at the Airport and involved in the present case. He produced Muhammad Ashraf Zahid D.W.2 in his defence who stated that the appellant was working with the A . D. A . for the last 19 years and also worked with him for two years because he was the Project Supervisor whereas the appellant was working as a Foreman. He stated that the appellant is a good man and used to say his prayers regularly. He stated that he was not on duty on the day when the appellant was arrested.

4. In support of the appeal a number of legal objections have been raised besides the contention that the offence does not fall within the meaning of section 156(1)(8) of the Customs Act, 1969 inasmuch as there was no evidence that the seized heroin powder was smuggled out of Pakistan or any attempt to that effect was made. It is contended that in order to prove the offence of smuggling the prosecution was to establish that the narcotic was brought into or taken out of Pakistan or an attempt to this effect was made by the appellant. Reference is made to the prosecution evidence from which it is clear that the seized heroin was not the personal baggage of the appellant as he himself was not travelling and the same was not yet loaded on the flight for transport to a foreign country. A reference to the explanation appended under section 156 of the Customs Act, 1969 would show that smuggling of goods by export, as distinct from import, is complete when the goods are loaded on any conveyance for transport to any destination outside Pakistan or the connected Customs documents have been presented to the appropriate officer. From the beginning it was not the prosecution case that the seized heroin was either loaded on the flight or the necessary Customs documents were presented by the appellant to the officer concerned. Thus, the offence of smuggling within the meaning of the explanation referred to above cannot be said to have been committed by the appellant. However, under section 2(s) of the Customs Act, 1969 the offence of smuggling includes an attempt, abetment or connivance of bringing in or taking out of Pakistan of prohibited goods. But it may be mentioned that an attempt to commit a crime should not be confused with an act which merely indicates an intention to commit the same or with mere preparation for its commission. Thus, an attempt is not complete until the act has passed beyond the stage of preparation. In Ehsan Elahi Malik v. The State 1980 P Cr. L J 186 it was observed:-

"It is in evidence that the appellant had purchased a ticket for going to Hong Kong, he checked in at the Swiss Airline Counter, he was given the boarding card and the baggage tags and finally he was asked by the Customs Officer to make a declaration. In this declaration in writing which is on record as Exh.31, the appellant suppressed the information regarding the huge quantity of foreign currency in his possession and the precious stones carried by him. Having regard to all these facts it is clear that but for the interception by the Customs Officials the appellant had done everything in his power to take out of Pakistan the contraband articles. The Court is entitled to infer the existence of a fact regard being had to the common course of natural events and human conduct. There is nothing on record to indicate that the appellant could have retraced his steps from the commission of the offence. There is, therefore, no force in this submission that the evidence does not establish the case of attempt to smuggle."

It is evident that the attempt to smuggle contraband articles out of Pakistan was established because the accused had purchased a ticket for going abroad; he was given the boarding card and the baggage tags and finally he was asked by the Customs Officer to make a declaration in writing wherein the accused suppressed the information regarding the banned item carried by him. In the case in hand, no such eventuality existed. So much so that the formalities for booking' the carton for being carried to Doha by the flight in question had not yet been observed. It is nowhere mentioned that the necessary Forms respecting the export of goods to a foreign country were filled up by the appellant or any freight for transport of the goods) was paid by him. The learned counsel for the appellant referred to Waqar Hussain v. The State 1981 P Cr. L J 958 wherein the offence of smuggling under section 156(1)(8) of the Customs Act was held proved because the appellant was found present near the counter of the Japan Airlines after completing his briefing. The Customs Officials requested the said appellant if he had to declare any currency to which he replied in the negative. On being furnished a Currency Declaration Form he also declared in writing that he was not in possession of any currency. The Customs Officials then secured the suit-case of the said appellant in respect of which briefing was completed and as the appellant did not have the key to open it, the lock of the same was broken open and the search of the suit-case led to the recovery of foreign as well as Pakistan Currency lying concealed therein. The passport, identity card, air ticket and baggage tags etc. were also secured from the possession of the appellant. The appellant was, therefore, held to have been rightly convicted for the offence of smuggling. Keeping in view the principle laid down in the cited cases it is difficult to hold that the appellant could be lawfully convicted under section 156(1)(8) of the Customs Act for smuggling narcotics out of Pakistan. The learned counsel appearing for the State also conceded, and rightly so, that the offence does not fall under section 156(1)(8) of the Customs Act. However, it was contended that the appellant can be convicted for the lesser offence by this Court under section 156(1)(89) of the Customs Act for having been found in possession of the heroin powder. This contention would have prevailed provided the case was covered by the provisions of section 156(1)(89) of the Customs Act. In so far as the recovery of narcotic from the appellant is concerned, the prosecution evidence conclusively establishes his apprehension at the Airport alongwith a carton of vegetable and fruit containing narcotic. However, nothing has come on the record to show that the narcotic was of foreign origin or had been smuggled into the country. In Taza Khan and D another v. The State 1984 P Cr. L J 1308 it was held that "Clause (89) of section 156(1) of the Customs Act relates to possession of goods in respect of which there is either definite evidence or reasonable suspicion that they were smuggled into Pakistan. Though the possession of charas and heroin may itself be an offence under the Excise and other laws relating to narcotics but to support a conviction under clause (89) ibid it is necessary for the prosecution to show that the narcotics were of foreign origin or that they could be reasonably suspected to be so. Thus, an important question for consideration in this appeal is whether the charas and heroin allegedly found in possession of the appellants had been smuggled or were suspected to have been smuggled into Pakistan. At the trial the prosecution led no evidence whatsoever in this regard. When this position was brought to the notice of the learned counsel appearing for the State he feebly contended that the charas and heroin were not made in Pakistan. It may be mentioned that at' the hearing the learned counsel was assisted by officers of the Customs Department. When I asked the learned counsel if he was prepared to produce a certificate from some responsible authority in support of his assertion he expressed his inability to do so. I am, therefore, unable to hold that the charas and heroin allegedly recovered from the truck of the appellants were o> not of Pakistan origin". It may also be mentioned that to make the offence punishable under clause (89) of section 156(1) of the Customs Act, the prosecution had to prove that the value of the seized goods exceeded Rs.10,000. No such evidence is available on the file. The assessment certificate issued by the Deputy Superintendent Customs, Peshawar was placed on the file but it was neither exhibited nor proved according to law. None of the prosecution witnesses deposed about this certificate or about the value of the seized heroin to be in excess of the prescribed limit. Thus, the prosecution failed to prove this important ingredient of the offence as well. In the circumstances' it is not legally possible to convict the appellant under section 156(1)(89) of the Customs Act. Since another case under the Prohibition (Enforcement of Hadd) Order, 1979 is allegedly pending against the appellant, the other contentions raised in the appeal are purposely not considered.

5. For the aforesaid reasons, the conviction of the appellant under section 156(1)(8) of the Customs Act, 1969 cannot be maintained. Resultantly, the appeal is accepted and by setting aside the impugned judgment of the learned Special Judge Customs, N.-W.F.P. Peshawar dated 19-1-1988, the appellant is acquitted of the charge. He shall be released forthwith if not wanted in any other case.

M.A.K./638/P Appeal accepted.