ISMAIL ALIAS SMAIL Versus STATE

Appellant abovenamed being aggrieved by judgment, dated 10 th January, 1976, of the learned Special Judge (Customs 8 Taxations) Karachi, in Case No. 24 of 1975, by which appellant has been convicted under section 156 (1) (89) of the Customs Act, 1969 and sentenced to suffer R.1. for 18 months and to pay fine of Rs. 5,000 or in default of payment of fine to suffer further R.I. for 6 months, while co-accused Muhammad Yousuf and Ghulam Hussain were acquitted, has preferred the above appeal on the following facts and grounds:

2. The facts of the prosecution case briefly stated are that on 1-1-1975, on receiving an information, that a large quality of foreign smuggled cloth was stored in godown No. 66 situated in Hussaini Market, Bunder Road Karachi a part of the staff of Directorate of Customs and Investigation, Karachi raided the said godown at about 3-30 p.m., after having complied with the provisions of section 163 of the Customs Act, 1969 in presence of the two Mashirs, Pervaiz Akhtar and Rahat Azim Farooqi. On search of the said godown 3,143 yards of cloth of foreign origin was recovered in presence of the owner of the shop, the appellant Abdul Sattar. The cloth was recovered and the inventory was prepared on the spot. The Shops Nos. 35 and 40 situated in the same market belonging to the appellant Abdul Sattar were also searched, after compliance of the provisions of 163 of the Customs Act, 1969 in presence of the same Mashirs abovementioned and 1,135 yards and 1,562 yards of foreign smuggled cloth of different quality and length were recovered from the said shops, respectively, Inventories in presence of the Mashirs were prepared and the cloth was measured which came to in all 5840 yards. The Mashirnama of recovery was also prepared. The appellant Abdul Sattar was present throughout the searches, having been picked up by the raid party from Shop No. 40, whereas co-accused Muhammad Yousuf was present at Shop No. 35 as salesman. Co-accused Ghulam Hussain is also alleged to have been present on one of the Shops. The accused persons were asked to produce the documents for legal import and lawful possession of foreign smuggled cloth, which they failed to produce. The cloth was seized under a Mashirnama as stated above. The appellant Abdul Sattar and co-accused Yousuf were arrested on the spot. The cloth is alleged to have been supplied to them by the co-accused Ghulam Hussain and the absconding accused Murad Bux of Guadar. Co-accused Ghulam Hussain on the pointation of the appellant Abdul Sattar and co -accused Muhammad Yousuf was arrested on 2-1-1975. The appellant and co-accused, after the completion of the investigation against them were challaned, in the learned trial Court.

3. The prosecution had examined Pervaiz Akhtar Mashir of the recovery Exh. 3., Musarrat Ali Khan Intelligence Officer Directorate of Customs and Intelligence Exh. 4 and Mr. Muhammad Mahdi Siddiqui, Senior Intelligence Officer, Directorate of Customs and Intelligence Exh.

6. The State counsel has given up the rest of the prosecution witnesses and had closed the case for the prosecution.

4. The appellant Abdul Sattar has claimed to have been falsely impli cated. According to him he does not know as to why the prosecution witnesses deposed against him, but according to him they are false witnesses. He has however, admitted that the foreign cloth some of which according to him is from Japan was recovered from the godown No. 66 and Shops Nos., 35 and 40 situated in Hussaini Market, Karachi, which were owned by him and were in his possession. According to him, he had offered to produce the documents in support of the lawful possession of the cloth in question, but he was not afforded an opportunity by the Customs Officer to produce the same. According to him subsequently on 22-1-1975 he had produced photostats of the documents vide Exhs. 6C/1 to 6C/36, which were not fictitious and forged documents and were genuine. According to him, he used to purchase the foreign goods from passengers coming from outside Pakistan, on obtaining receipts from them, and he used to sell those goods. According to him further, for the purpose of purchasing those goods, he used to visit hotels and other places and contact the passengers coming from outside and that the present foreign cloth was also purchased by him in such circumstances. The co-accused Muhammad Yousuf had claimed to have been falsely implicated, as he was serving only .as a salesman of appellant Abdul Sattar. The co-accused Ghulam Hussain also claimed to have been falsely implicated, as on the day of incident he had gone to the shop to purchase cloth. While he was on the shop, the Customs Office came and caught hold of him and made him sit there. According to him, they released him at that time and took his address from him and arrested him the following day. According to him, the Customs officer, told him to be the prosecution witness, but he declined to implicate his co-accused falsely and was, therefore, impli cated in this case. They have examined no evidence in their defence. They have produced the originals of the photostat vide Exhs. 12-A and 12-8/1 to 35 in support of their defence version.

5. The learned trial Court taking into consideration the evidence adduced before it, convicted the appellant abovenamed as hereinbefore mentioned, while acquitting co-accused Muhammad Yousuf and Ghulam Hussain and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

6. The learned Advocate for the appellant in support of the above appeal submitted as under:-

(a). That the value of the alleged smuggled goods was neither mentioned in F.I.R. nor in charge nor it was proved by any evidence adduced by the prosecution and as such on this ground alone, the conviction of the appellant cannot be maintained. In support of this contention the learned Advocate for the appellant relied upon cases 1981 P Cr. L J 1264 and P L D 1978 Pesh. 113.

(b) That no notice under section 171 Customs Act was given to the appellant and consequently the mandatory provisions of law were not complied with and as such the conviction of the appellant also cannot be sustained on this ground as well. In support of this contention the learned Advocate for the appellant relied upon cases

P L D 1981 Lah.13, P L D 1981 Kar. 250 and P L D 1972 Kar. 201.

(c) That the seized goods were not produced before the learned trial Court and consequently even on this ground alone, the conviction of the appellant cannot be maintained. In support of this contention the learned Advocate for the appellant relied upon case P L D 1972 Kar. 201.

7. The learned Advocate appearing for the State in view of the above admitted position on record, submitted that on account of the above legal lacunae in prosecution case, he was unable to support the impugned judgment.

8. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R s P of the learned trial Court as well as impugned judgment and the cases cited by the learned Advocate for the appellant, before me.

9. It is an admitted position, that value of the property is neither mentioned in the F.I.R. nor it was stated in the charge framed against the appellant. I also find that P.W.1 Pervaiz Akhtar, P.W.2 Musarrat Ali Khan and P.W.3 Muhammad Mehdi in their statements before the learned trial Court have not at all mentioned the value of the goods seized from the possession of the appellant. Besides this prosecution has led no pc evidence to establish the value of the goods seized from the possession of the appellant and consequently the cases 1981 P Cr. L J 1264 and P L D 1978 Pesh. 113 are fully applicable to the case of the appellant and since I am in full agreement with the law laid down by these cases, for the reasons given therein, the conviction of the appellant cannot be maintained.

10. It is also admitted position that no notice under section 171, Customs Act 1969 was given to the appellant and consequently mandatory provisions of the Customs Act, 1969 were violated and, therefore, the cases P L D 1981 Lah. 13, P L D 1981 Kar. 251 are also fully applicable to the appellant's case and on this ground alone the conviction of the appellant cannot be maintained.

11. In addition to the above grounds, I find that the seized goods) were not produced before the learned trial Court and as such law laid down in the case P L D 1972 Kar. 201 is fully applicable to the appellant's case and since I am in full agreement with the said law laid down in the said case, on account of the reasons given therein, I agree with the contention of the learned Advocate for the appellant, that the conviction I of the appellant cannot be maintained on this ground also.

12. In view of my above conclusions, in my opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant.

13. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant.

S. G. D. Appeal accepted.