Appeal No.69/LB of 1998, decided on 28th June, 2006. Versus Appeal No.69/LB of 1998, decided on 28th June, 2006.
JUSTICE (RETD.) MIAN MUHAMMAD JAHANGIER, MEMBER (JUDICIAL).-- -This appeal directed against Order-in-Original No.2 of 1998 passed by Collector of Customs, Custom House, Lahore, dated 20-1-1998 whereby gold weighing 6000 Tolas along with other A goods including vehicle used in the commission of offence were ordered to be confiscated under clause (89) subsection (1) of section 156 read with section 157(2) of Customs Act, 1969 and imposed penalty of Rs.) Million on each person involved in this case under the aforesaid provision of law. The show-cause notices, dated 13-11-1985 served upon Jamshaid Iqbal alias Billu etc. through registered A.D. would reflect on complete history of the case amounting to an act of smuggling of gold, therefore, the show-cause notice is being re-produced as under:--
Whereas a report has been received from the S.H.O. Police Station, Gulberg, Lahore, that in pursuance of an information that one Allauddin alias `Lawn' who is a big notorious smuggler of gold, would smuggle through his workers a huge quantity of gold to India, via Ferozepur Road through Kasur Border, in a Toyota Car No. LHH-9577 white colour, the Deputy Superintendent of Police of Gulberg Circle, under the orders of Senior Superintendent of Police, Lahore organized a Police Raiding Party, headed by him, (Deputy Superintendent of Police, Gulberg Circle) held a naka at `Qanchi' near Amar Sidhu, on 22-7-1985. At 2015 hours the Police naka party saw and stopped the suspected Car No.LHH-9577 and found two persons occupying the same.
2. And whereas on enquiry, the said two persons disclosed their names and addresses as under:---
(i) Jamshed Iqbal alias `Billo' son of Sher Muhammad caste Rajput resident of House No.22 Cali No.147, Chah Sheikhanwala, Ichhra, Lahore (driver).
(ii) Muhammad Arif son of Channan Din, caste Mashki, Mochipura Model Town, Lahore.
3. And whereas the said Car No.LHH-9577 was searched by the Police naka party but nothing was recovered but since the information was authentic, therefore, the said car and both the said persons were brought to Police Factory Area, for interrogation etc. and in the meantime Mr. Safdar Mahmood Assistant Commissioner City deputed to help the Police, also arrived there.
4. And whereas on interrogation, in the presence of Ch. Safdar Mahmood Assistant Commissioner City, the said Jamshed Iqbal alias Billo disclosed that:--
(I) the gold is lying beneath the back seat of the car and the same belonged to Allauddin. alias `Laws' and was brought from his bungalow in Gulberg;
(II) the same (gold) was to be delivered to Surjet Singh alias (Billo) resident of Lakha, District Amritsar (India).
5. And whereas on the above disclosure and subsequent pointation of Jamshed Iqbal the said car was searched by the Police party and as a result of that following goods were recovered from beneath the back seat of the car in the presence of Assistant Commissioner (City). Four Cotton Cloth Jacket, Containing 600 rannies of gold (each 10 tola) weight 6000 tolas (as shown in the recovery memo).
6. And whereas the said Jamshed Iqbal alias (Billo) was further interrogated and on his pointation, the Police authorities recovered the following articles from the secret basement of Bungalow No.77-B-I Gulberg-HI, Lahore of Allauddin alias `Lawn';
(i) Weighing scale with brass weights for weighment of gold.
(ii) Sewing machine used for sewing jackets.
(iii) Jute bag (tora)
(iv) Car No. LHK-909 Honda Civic (Red Colour) used for carriage, removal and transportation of smuggled gold by Allauddin alias 'Lawa' (As shown in recovery merino.)
7. 600 slabs said to be smuggled gold of foreign origin recovered from the Car No.LHH-9577 were seized by the Police under the provisions of the Customs Act for violation of prohibitions and restrictions in force, on the ground that this gold smuggled into p akistan was being attempted to be smuggled out of Pakistan to India.
8. Car No.LHH-9577 was seized on the ground that the same was being used for the removal/transportation of the smuggled gold which was being attempted to be smuggled out of Pakistan to India.
9. Car No.LHK-909 recovered from House No.77-B-I, Gulberg III Lahore was seized on the charge that the same had also been used for the carriage, transportation and removal of the said gold. Other articles recovered from the House No.77-B-I, Gulberg III, Lahore were also seized.
10. And whereas according to investigation:-
(i) That aforesaid gold was smuggled into Pakistan by Allauddin alias `Lawa' and his accomplices and the same was being attempted to be smuggled to India by them through Jamshed Iqbal alias `Billo' and Muhammad Arif who were actively involved in the act of smuggling of gold and are also concerned with its removal and transportation.
(ii) Allauddin alias Lawa has not yet been apprehended/arrested by the Police and that he has been declared as proclaimed offender and his warrants of arrest have been issued by-the Special Judge of Customs, Lahore.
(iii) Mst. Razia Begum wife of Allauddin alias `Lawa', Ghayasuddin, Iftikharuddin and Zaheeruddin sons of Allauddin alias Lawa are involved in the offence of act of smuggling, keeping, concealing and dealing with smuggled gold and abetting and conniving in the act of smuggling and having knowledge of the fact that the aforementioned gold had been smuggled into Pakistan and was being attempted to be smuggled to India.
(iv) The seized Car No.LHH-9577 originally belonged to Muhammad Ashfaq son of Karim Bux resident of 11 Swami Nagar, Muslim Road, Samanabad, Lahore and he is said to have sold it to Jamshed Iqbal alias Billo son of Sher Muhammad. This car still stands registered in the name of Muhammad Ashfaq son of Karim Bux who has reportedly not received payment of balance amount of Rs.15000 from Jamshed Iqbal alias Billo to whom he has sold. Car No.LHK-909 Honda Civic original belonged to Pervaiz Khan son of Asdullah Khan r/o House No.3, Salik Street No. 13, Old Muslim Town, Lahore who sold it to Allauddin alias `Lawa' son of Nawab Din resident of 77-B-I, Gulberg III, Lahore but it still stands registered in the name of Pervaiz Khan who according to the investigation report contends that he had sold this car to Allauddin alias `Lawa' son of Nawab Din and that he has no concern with the car because the same is owned and possessed by Allauddin alias Lawa. He further stated that due to his business engagements he could not give transfer letter to Allauddin alias `Lawa' and therefore the ear does not belong to him, but in fact belongs to Allauddin alias 'Lawa'.
11. And whereas the assay report No.AC-18(V) 85-86/R-6, dated 12-11-1985 of Pakistan Mint, Lahore obtained from the Pakistan Mint, and submitted to this office, by the S.H.O. Police Station, Gulberg, Lahore reveals:--
(i) The description and number 600 slabs said to be gold as under:--
S.No. ?????????????????????????? Description on the exhibits ??????????????????? Number of Slabs
1. ???????????????????????????????? Credit Suisse. ?????????????????????????????????????? 350 Nos.
2. ???????????????????????????????? Swiss Bank Corporation. ????????????????????? 150 Nos.
3. ???????????????????????????????? Bank leu Zurich. ?????????????????????????????????? 100 Nos.
(ii) representative samples were drawn and assayed by the Pakistan, Mint staff and the fineness of gold per thousand parts was found to range from 999.0 to 999.4 as shown in the assay report.
12. And whereas the bringing of gold into Pakistan and taking it out of Pakistan in breach of prohibitions and restrictions in force constitutes offences under sections 16 and 2(s) of the Customs Act, 1969 read with subsections (1), (2) and (3) of section 8 of the . Foreign Exchange Regulation Act, 1947 and subsections (1) and (3) of section 3 of the Imports and Exports (Control) Act, 1950 read with section 178 of the Customs Act, 1969 and are punishable under section 156(1) clauses (8) and (89) of the Customs Act, 1969.
12A. Allauddin alias Lawa, Jamshed Iqbal alias Billo, Muhammad Arif, Mst. Razia Begum, Ghayasuddin, Iftikharuddin, Zaheeruddin and their associates have therefore committed offence by violating the provisions of sections 16 and 2(s) of Customs Act, 1969, subsections (1), (2) and (3) of section 8 of the Foreign Exchange Regulation Act, 1947, and sections 3(1) and 3(3) of the Imports and Exports (Control) Act, 1950 read with section 178 of the Customs Act, 1969 punishable under section 156(1) clauses (8) and (89) of the Customs Act, 1969.
13. The abovementioned vehicles seized in this case are also liable to confiscation under section 157 of the Customs Act, 1969 for violation of the provisions of laws referred to above.
14. Now therefore the said Allauddin alias `Lawa' Jamshed Iqbal, Muhammad Arif, Mst. Razia Begum, Ghayasuddin, Iftikharuddin, Zaheeruddin, Muhammad Ashfaq, Pervaiz Khan and other associates are hereby called upon of show cause within ten days from the date thereof, as to why they should not be penalized and why the seized gold, cars and other articles be not confiscated under section 156(1) clauses (8) and (89) and section 157 of the Customs Act, 1969 for the violation of the provisions of the laws referred to above.
15. They may produce all evidence documentary or otherwise, in support of their defence, along with their explanations within the prescribed time, failing which the case will be considered for decision on the basis of evidence available on record.
16. They should also state in their explanations whether they wish to be heard in person or through their counsel.
(2) This show-cause notice was resisted by Jamshaid Iqbal (appellant) and others on many grounds basically that search and seizure in the case was illegal as it was made by Assistant Commissioner City who was not authorized to do so under the Customs Act as he was not declared as appropriate officer in terms of section 2(b) ibid and since the search and seizure was illegal therefore, the subsequent proceedings also being illegal and cannot sustain in the eye of law, even' otherwise no independent witness was cited in such proceedings due to which there was violation of section 103, Cr.P.C.; that extension in time limit for issuance of show-cause notice was allowed by the Collector of Customs without assigning any reason, even it was granted after expiry of first two months and that no notice under section 171 of the Customs Act, 1969 was issued to the appellant nor the police officer was competent in this regard.
(3) While the prosecution explained before the Adjudicating Authority that the Assistant Commissioner in this case was deputed in order to assist the customs authority and police officer entrusted with the function to act as officer of customs and it was strictly in accordance with the spirit of section 7 that basically the information was received by the police officer and thereafter, the proceedings were initiated consequently, the smuggled gold was taken into possession in accordance with law.
(4) After hearing both the sides the Adjudicating Authority arrived to this conclusion that the respondent have not been able to furnish any documentary evidence to justify the legal import and lawful possession of the gold and that they merely relied on the technical infirmities which are not sufficient to shatter the prosecution case which stand established on the basis of evidence on record. Consequently, the gold weighing 6000 Tolas along with other articles were confiscated in terms of clause (89) of section 156(1) and section 157(2) of the Customs Act, 1969. Moreover, the penalty of rupee One Million was imposed on each person involved in this case. Hence this appeal.
(5) We have heard the learned counsel for the appellant, learned D.R. assisted by Mr. Idrees Saeed, D.S. for the respondent and have gone through the relevant record placed before us.
(6) After hearing both the sides very carefully it appears to us that the recovery of the gold in huge quantity from two places i.e. Car No. LHH-9577 and Bungalow No. 77-B-I, Gulberg-III, Lahore is admitted which means that there is no dispute between the parties on the aspect of recovery. In such situation leaving c aside the legal formalities for example who has recovered the smuggled gold, who are the witnesses or whether the provisions of section 103, Cr.P.C. have been violated or not, the basic burden of proof is on the person from whose custody the smuggled goods have been recovered. In this situation it can be further explained in this way that if a murder is committed in a house, there can be irregularities or even illegalities in the process of investigation but the burden would be on the inmates of the house as to how the murder was committed and that there would be no responsibility on the prosecution and if some irregularities and omissions are committed by the investigating agency/prosecution such weaknesses would not give any benefit to the accused. So same is the position in this case that the appellants and his associates have to show the justification of having such huge quantity of gold in their possession.
(7) It may be mentioned here that the proceedings before the Adjudicating Authority are mostly civil in nature having some criminal aspect and that is why if F.I.R. is lodged, then matter goes to learned Special Judge Customs for initiating, pure criminal proceedings against the culprits.
(8) Anyhow, when the burden in this case is on the appellants, then the question would arise that as to what is the defence of the appellants. Here there is necessity to re-produce the ground "A" as mentioned in the memorandum of appeal which is as under:--
(a) "That appellant No.1 is admittedly the owner of seized gold which was locally made. The rennies were prepared after purifying the old ornaments in Pakistan and names of foreign banks were embossed thereupon with a view to show that the gold is pure. The allegation that gold is of foreign origin .is false, baseless and without any substance. The prosecution has totally failed to establish that gold is of foreign origin."
(9) It is stated in this ground that the seized gold owned by Jamshed Iqbal was locally made, the rennies were prepared after purifying the old ornaments in Pakistan and names of foreign banks were embossed thereupon with a view to showing that the gold is pure and that the allegation that gold was foreign made, is false, baseless and without any substance. If this was the defence of the appellant though reflecting on the process of cheating/fraud, yet the appellant was bound to prove the same but he did not examine any evidence in support of this defence plea, otherwise the defence plea reflecting on a fraud carries no importance in the eye of law either the civil aspect of the matter or purely criminal in nature is being disposed of.
(10) Further it may he mentioned here that the statement of Asmat Ali Khan Scientific Officer, Pakistan Mint Lahore recorded as P.W.8 before the learned Special Judge Customs provides no strength to the defence plea of the appellant because his statement to this extent that he cannot say whether it was a smuggled goods or not is of no help because the appellant had to prove through sound and convincing evidence that gold was prepared or made in Pakistan. The assay report and the statement of the expert were speaking about the purity of the gold therefore, it had no concern with the origin of the gold either made in Pakistan or made of foreign country.
(11) So far as the omission or irregularity in issuance of the show-cause notice is concerned, it carries no importance because the show-cause notices were served upon the appellant and their companions and again and again it shall be observed that they had to prove the origin of gold being made in Pakistan either lawfully or through any fraudulent activity. Even in the aspect of search and seizure the observation is same and it may be added here that in case of raid when there is apprehension that the alleged illicit articles may be disposed of, then the police witnesses or an officer (Assistant Commissioner) assisting the raiding party, (marginal witnesses) are the relevant witnesses and to their extent on participation in apprehending the fraud there would be no illegality. It may be further added that, is there any possibility that the smuggled goods shall be handed over to the culprits if the process of apprehending them is facing some shortcoming. The Adjudicating Authority had to proceed further in the light of show-cause notice issued to the appellants and in such a case there was no need to examine the large number of witnesses to prove the act of smuggling because the appellants had to prove their defence plea in which they totally failed. The arguments advanced by learned counsel for the appellant are devoid of any force and the order impugned calls for no interference.
(12) In view of this, Order-in-Original No.2 of 1998 is upheld and this appeal being without merit is hereby dismissed.
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C.M.A./197/Tax (Trib.) ??????????????????????????????????????????????????????????????????????? Appeal dismissed.