MUHAMMAD ASLAM NAZ Versus THE STATE

This appeal under section 185-F of the Customs Act, 1969 is directed against judgment, dated 10-4-1993 passed by Special Judge (Customs and Taxation) Karachi in Case. No.1 of 1992, whereby appellant Muhammad Aslam Naz, who was tried for an offence under section 156(1)(8) of the Customs Act for attempting to smuggle Pakistani currency of Rs.13,50,000 out of Pakistan, is convicted and sentenced to R.I. for 4 years and to pay a fine of Rs.4,00,000 and in default to undergo further R.I. for 1 year. Appellant is given benefit of section 382-B of Cr.P.C.

2. F.I.R. was registered on 21-12-1991 at 11-00 p.m. by Maqsood Ahmed Memon, Preventive Officer, Customs House. Karachi, at Customs Examination Hall Terminal III, Quaid-e-Azam Airport, Karachi. It was stated that in pursuance of an information, strict vigil was maintained on the passengers leaving .for Dubai by P.IA. Flight No.PK-213. Appellant Muhammad Aslam Naz reported at the Customs Counter and before examination of his baggage, he was asked-to declare if he was carrying any incriminating goods in his baggage or on his person. Upon refusal by appellant that he was carrying anything of the sort, his baggage comprising of one hand bag and one plastic shopping bag was subjected to detailed examination in presence of Mashirs Muhammad Tahir and Muhammad Shahbaz. The hand bag of appellant did not contain any contraband item but the shopping bag of appellant was found to contain a hot pot and a sweetmeat box. Besides some food in the hot pot, the lid of the hot pot which seemed abnormally heavy, was ripped open and Pak currency of Rs.2,67,000 in the denomination of 1,000 rupee notes was recovered. From the bottom of the hot pot further Pak currency of Rs.7,43,000 in the denomination of 1,000 and 500-rupee notes were also recovered. From the sweet meat box Pak currency of Rs.3,00,000 was also recovered. Appellant was asked whether he liked to be searched before a Magistrate or a Gazetted Officer but appellant did not so opt and his personal search was taken and Pak currency of Rs.40,000 in the shape of 1,000 rupees notes was also recovered. The travelling documents, as also the containers were seized under a Mashirnama. After usual investigation the case was challaned against appellant in the Court of Special Judge (Customs and Taxation), Karachi for his trial under aforesaid sections of the Customs Act.

3. On 12-1-1992 charge was framed against appellant under section 156(1)(8) of the Customs Act to which he pleaded not guilty and claimed to be tried.

4. Prosecution examined P.W.1 Maqsood Ahmed Memon (complainant) Exh.3 and he produced Mashirnama (Exh.3-A), appellant's Passport (Exh.3 B), P.I.A. ticket (Exh.3-C), notice under section 171 of the Customs Act (Exh.3-D) and F.I.R. (Exh.3-E). Prosecution also examined P.W.2 Muhammad Shahbaz (Exh.4) and P.W.3 Ghulam Abbas (Exh.5) and thereafter closed its side.

5. Statement of appellant under section 342 of Cr.P.C. (Exh.6) was recorded and he denied if the currency recovered from the hot pot or the sweetmeat box belonged to him. He further stated that the notice under section 171 of Customs Act (Exh.3-D) was served on him in the lock-up of Customs after 3 or 4 days. He also stated that he was standing outside the International Departure Hall alongwith his maternal-uncle Mirajuddin and the shopping bag containing the hot pot and sweetmeat box belonged to his said uncle. He further stated that he was taken from outside the International Departure Hall by Customs Officers and from the shopping bag which belonged to Merajuddin, currency kept in hot pot and sweetmeat box was recovered and foisted on him, as he was holding a ticket for Dubai. Appellant also examined himself as his own defence witness under section 340(2), Cr.P.C. (Exh.7) and gave the same version as in his statement under section 342 of Cr.P.C. He also examined Haji Merajuddin as D.W.2 (Exh.8) who supported the version given by the appellant. Merajuddin stated that the shopping bag containing the hot pot and sweetmeat box belonged to him and he had come to the airport to see off his nephew (appellant) and while he had gone to latrine, he assigned the shopping bag to his nephew to be looked after but when he returned back, his friend Khushi Muhammad informed him that appellant alongwith shopping bag was taken inside the departure hall by two Customs Officers. He also stated that his nephew Muhammad Aslam Naz was falsely implicated in the case. and in that respect he had met higher officers of the Customs in the Customs House but he was directed to approach the concerned Court. D.W. Merajuddin produced a legal notice dated 18th March, 1992 sent on his behalf by his Advocate to the Collector of Customs (Preventive). Appellant also examined Khushi Muhammad as D.W.3 (Exh.9) who confirmed the statement of D.W. Merajuddin. On conclusion of trial, the learned Special Judge convicted appellant as stated above.

6. 1 have heard Mr. Sohail Muzaffar, Advocate for the appellant and Mr. Abid S. Zuberi, Advocate for the State. It is contended on behalf of the appellant that the time of preparation of Mashirnama (Exh.3/A) does not commensurate with the date and time of occurrence shown in the F.I.R. (Exh.3/B). It is pointed out that in the F.I.R. the time of occurrence is shown as 9-30 p.m. while in Mashirnama (Exh.3/A) the time is shown as 9-15 p.m. and either of the two must be incorrect and this anomaly is not explained by the prosecution. It is next argued that the complainant Maqsood Memon has admitted in the cross-examination that he lodged the report after two hours of the seizure of currency and the F.I.R. was corrected by his senior and then he lodged the same. A further admission of this witness is pointed out wherein he stated that he was not in possession of the original draft of F.I.R. which he recorded in his handwriting and on the basis of which, after correction, F.I.R (Exh.3/B) was registered. According to the learned counsel what was the earliest version in the F.I.R. has been withheld and a corrected version as suited the superior of complainant was recorded and thus the F.I.R. loses its credibility. It is also pointed out that the currency allegedly recovered from the appellant was counted on 23-12-1991 as admitted by the complainant and on 21-12-1991, when the F.I.R. was registered the details of currency shown therein as also the Mashirnama are totally false and fabricated. The learned counsel then argued that there was no mark of identification on the shopping bag to connect it with the appellant and the defence evidence that the shopping bag belonged to D.W. Merajuddin was more plausible and should not have been rejected without any just cause. It is also argued that D.W. Merajuddin who claimed that the currency allegedly recovered belonged to him was not discredited and not even a suggestion was given to him in cross-examination that he was not the owner of the currency or that it did not belong to him. The learned counsel further argued that the Mashirs of recovery are not independent witnesses but they being the employees of the Customs Department were bound to oblige the prosecution and this has rendered the search and recovery proceedings not only doubtful but the same is also in violation of the mandatory provisions of section 103 of Cr.P.C. The last contention of the learned Advocate is that the plea of the accused raised in defence, although it may not look strong, yet if it is not challenged by prosecution, the benefit of such omission by prosecution should have been given to the accused and he should have been acquitted. In support of these contentions, learned Advocate referred to the case of Usman Khan and others v. The State P L U 1969 SC 293, where it was observed by the Honourable Supreme Court that the defence evidence in support of the plea of alibi although not strong, but not challenged by the prosecution, benefit of doubt was given to the accused and he was acquitted. Reliance is next placed on the case of Ameenullah v. The State P L D 1982 SC 429, in which the facts were that the accused pleaded alibi by showing that he was in Karachi at the time of occurrence, having purchased non-judicial stamp from stamp vendor in Karachi and executed power of attorney in favour of his brother-in-law in Karachi. The accused in said case also produced documentary evidence to show that on the date of occurrence he was admitted in a clinic in Karachi remaining there as indoor patient for 18 days and such documentary evidence was produced before the Investigating Officer while appearing for the first time before the Investigating Officer. It was held that the accused was not required to prove his plea of alibi and to lead evidence to raise plausible defence of being not present at the scene of occurrence. It was further held that all the evidence produced by appellant considered alongwith the prosecution evidence to leave room for reasonable doubt of appellant's guilt making his presence highly probable at Karachi when crime was committed. Reliance is also placed on the case of Yameen Kumhar v. The State P L D 1990 Kar. 275, where it was observed that section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It was also observed that it is mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal.

Mr. Abid S. Zuberi, learned Advocate appearing for the State, who has supported the impugned judgment, has argued that under section 156(2) of the Customs Act, the burden is on the accused to prove that no such act as alleged has been committed or there was no such intent of the accused from whose possession the goods were seized to smuggle same out of Pakistan. He has referred to the case of The State v. Umar Hayat and The; State v. Riaz Muhammad and another P L D 1992 SC 393, where it was held that once the initial burden is discharged by the prosecution, the burden shifts to the accused and has also to establish that he had not committed any such act as alleged. The next contention of the learned counsel is that the prosecution has proved its case beyond reasonable doubt that Rs.13,50,000 were recovered from the hot pot, sweetmeat box and from the person of the appellant which was intended to be smuggled out of Pakistan as appellant was to leave for Dubai and was holding a confirmed ticket. It is also argued that the defence plea set up by the accused was false, fabricated and an afterthought and D.W. Merajuddin, who is uncle of the accused, was introduced at a subsequent stage and his evidence did not cast any doubt on the prosecution version. On the point of mistake of time in the F.I.R. and Mashirnama, it is argued that such discrepancy is inconsequential and cannot falsify the prosecution case as a whole, particularly when it is read with the evidence of P.W. Maqsood Memon. According to the learned Advocate the F.I.R. is not a substantive piece of evidence and it can be used in contradicting the maker of the F.I.R. or for the purpose of corroboration. In support of this contention, learned Advocate has referred to the case of Rehmat Ali v. The State 1986 P Cr. L; 1394, where, in para. 38 of the judgment it was observed that the F.I.R. is not a substantive piece of evidence and the purpose of such report is to put criminal law into motion at the earliest. It was further observed that it can be used by defence for confrontation with the statement on oath by the maker at the time of trial and the final inference is to be drawn by comparing the F.I.R. with the rest of the relevant evidence in that sequence. Learned counsel further referred the case of Siraj Din v. Kala and another P L D 1964 SC 26, where it was observed that the first information report can only be used to contradict its maker and it cannot be used as substantive evidence to belie statement of prosecution witnesses. The learned counsel for the State then referred to the case of Syed Pir Wilayat Shah v. The State P L D 1991 Kar. 268, where the complainant had fully supported the contents of the F.I.R. but the Mashir,. after supporting the recovery in examination-in-chief tried to favour accused in cross-examination. The Mashir had also admitted that the baggage in question belonged to accused present in Court and that Mashirnama was read over to him and other Mashir and they had signed the same. It was held that the prosecution had proved its case against the accused beyond reasonable doubt and conviction was maintained, It is next argued that section 159(3) of the Customs Act which lays down the method in which a person is to be searched does not insist on presence of two persons, who should be respectable inhabitants of the locality etc. as provided in section 103 of Cr.P.C. and the search and recovery proceedings even in presence of the employee of Customs Department would be admissible in law and no exception could be taken. He also referred to Article 122 of the Qanun-e-Shahadat, 1984 and argued that when any fact especially comes within the knowledge of any person the burden of proving that fact is upon him. By referring to this provision, the learned counsel argued that if the currency recovered from the accused belonged to D.W. Merajuddin, the burden of proving such fact was on the accused which he has failed to discharge leaving no room to doubt the prosecution version.

7. I have minutely examined the record and contentions raised by the learned counsel. The F.I.R. (Exh.3/B) is recorded at 11-00 p.m. on 21-12-1991 when the time of occurrence is shown as 9-30 p.m. P.W.1 Maqsood Memon, who lodged the F.I.R., has admitted in his evidence that the time of occurrence given in the F.I.R. as 9-30 p.m. is incorrect and actually the occurrence took place at 9-00 p.m. Complainant Maqsood Memon, who is Preventive Officer could not be supposed to have wrongly mentioned the time of occurrence in the F.I.R. but in fact was done by him. He admitted that the occurrence, in fact, took place at 9-00 p.m. and further admitted that he was not in possession of anything to show that occurrence took place at 9-00 p.m. It has further come in his evidence that he lodged the F.I.R. after two hours of the seizure of the currency. It seems that the F.I.R. was initially recorded on white paper and then it was put up by the complainant before his Senior, who made corrections in it and the version in the F.I.R. (Exh3/B) is the one which was duly corrected by the Senior of the complainant. The original draft of the complainant was not available with witness which contained corrections made by his superior. From the F.I.R. it further appears that the Mashirnama of search, recovery and seizure was prepared at the spot on 21-12-1991 when the appellant was arrested and the alleged Pakistani currency of Rs.13,50,000 was recovered either from the hot pot, the sweetmeat box or his personal search. The Mashirnama (Exh.3/A) on record shows that time of preparation as 9-15 p.m. i.e. 15 minutes before the F.I.R. was lodged. Description or the number of currency notes are not mentioned in Exh.3/A and on the contrary it has been admitted by complainant Maqsood Ahmed Memon that the currency was counted on 23-12-1991 and the numbers of the currency notes were noted down in a sheet of paper on 23-12-1991 when the recounting was done at the Airport. If the currency notes were counted on 23-12-1991, it is not understandable how in Mashirnama (Exh.3/A) the total sum. recovered from either the person of accused or from other article was shown as Rs.13,50,000. The discrepancy in time of incident and the time shown in Mashirnama although seems to be very minor and insignificant, yet when the evidence of complainant Maqsood Ahmed Memon is read between the lines it clearly appears that what has been stated in the F.I.R. is not the fact as was mentioned in the draft F.I.R. which was corrected by his senior officer. In an attempt to involve the accused in the case, wrong time of occurrence has been shown in the F.I.R. as admitted by Maqsood Ahmed Memon and this was done to bring the time of occurrence in line with the time of preparation of Mashirnama (Exh3/A). To me it appears that the Mashirnama (Exh.3/A) was prepared before the F.I.R. was lodged and complainant Maqsood Memon has made misstatement that the time of occurrence was, in fact, 9-00 p.m. and not 9-30 p.m. as shown in F.I.R. (Exh3/B).

8. There was admittedly no mark of identification on either the hot pot, sweetmeat box or the shopping bag from which these items were allegedly B recovered so as to connect them with the accused and to say that the same were intended to be carried by him while leaving for Dubai by Flight No.PK 213. No reason has been shown by the prosecution why a need had arisen to recount the currency on 23-12-1991 when on 21-12-1991 the Mashirnama shows the recovery of Rs.13,50,000 from accused.

9. The Mashirs in this case, namely, Muhammad Shahbaz and Tahir who were called to witness the recovery and search proceedings belong to the Drug Enforcement Cell of the Customs Department and no independent witness was associated when admittedly there were 70/80 other persons inside the Departure Hall. It is of course not the requirement of section 159(3) of the C Customs Act that the respectable inhabitants of the locality should be called to act as witnesses as provided in section 103 of Cr.P.C., yet the propriety required that someone other than the subordinates of the complainant should have been called to act as Mashirs.

10. From the entire evidence on record it is not clear as to whether the appellant was intercepted at the airline briefing counter and his baggage had passed through A.S.F. Screening Machine. The evidence of complainant Maqsood Memon is silent on that point. The defence of the accused was that he was yet outside the Terminal and had not entered the Departure Hall when two officers of the Customs picked him from outside and took him inside, in spite of protests by him that the shopping bag belonged to his uncle Merajuddin who had gone to a nearby latrine and had kept the bag with accused to be looked after till he returned. The evidence of D.W. Merajuddin has gone unchallenged. The plea of accused as well as the defence evidence if put in juxtaposition with prosecution evidence, the defence version looks more plausible than the prosecution evidence which is not only discrepant but also not free of doubt. The doubt on any point arising in evidence has to be resolved in favour of an accused. The accused under section 156(2) of the, Customs Act is required to discharge the burden after prosecution has proved its case beyond all reasonable doubt as held in P L D 1992 SC 393. The prosecution had failed to discredit D.Ws. Merajuddin and Khushi Muhammad, who both deposed that the shopping bag containing the hot pot an6 sweetmeat box belonged to Merajuddin. The defence evidence cannot be brushed aside on mere assumption, as argued by the learned State counsel, that it was fabricated and was an afterthought.

11. The upshot of the above discussion is that the case against appellant was not proved beyond reasonable doubt and the conviction and sentence impugned in this appeal cannot be sustained. The appeal is accordingly accepted, the conviction and sentence awarded to the appellant are set aside and he is acquitted. Appellant shall be released forthwith if not required in any other case.

N.H.Q./M-1925/K Appeal accepted.