Sajjad Ahmad Versus State
Ijaz Anwar, J .--- The instant appeal has been filed against the judgement dated 23.12.2019, passed by the learned Special Judge Customs, Taxation and Anti-Smuggling, Khyber Pakhtunkhwa, Peshawar in case FIR No. 11/2018 dated 23.10.2018 under sections 2 (s), 16 and 139 of the Customs Act, 1969 read with section 8 (2) of the Foreign Exchange Regulation Act, 1947, further read with 3(1) of Imports and Exports (Control) Act, 1950, punishable under clauses 1 (8) (89) of subsections (1) and (2) of section 156 of the Customs Act, 1969 read section 3(3) of Import and Export (Control) Act, 1950 of Police Station I&P Branch, Model Customs Collectorate Customs House, Peshawar whereby the accused/appellant was convicted under section 156 (8) read with 2(s),16 of the Customs Act, 1969 to five years simple imprisonment and 02 Lac rupees fine and in default, to further undergo six months simple imprisonment.
2. As per the contents of the FIR, the Customs Authorities received information that on 23.01.2018, an attempt would be made to smuggle foreign currency from Peshawar to Dubai through flight No. EK-637. At 07:00 hours on the same day, when the complainant along with a lady Inspector Zakira Tasleem, Lady Searcher Monika and Sheraz Ahmad Sepoy were present and were busy in checking of luggage of the outgoing passengers, in the meanwhile, a passenger who later on disclosed his name as Sajjad son of Said Ibrar having a cloth sack containing peanuts was intercepted. On checking, presence of foreign currency in between the peanuts was noticed. The accused was taken with the sack to the office of the Superintendent of the Airport where in the presence of Assistant Collector and of the Superintendent along with the marginal witnesses, the luggage was thoroughly checked, as a result of which from the sack of cloth, foreign currency i.e. Saudi Riyal 310,000/- and UAE Dirham 220,000/- was recovered regarding which the accused could not produce any legal justification. The currency was taken into possession vide recovery memo Ex.PW 1/1. Accused was arrested and the instant case was registered against him.
3. Accused/appellant faced trial before the trial Court on the above charges and on conclusion of the same was convicted and sentenced to the imprisonment as referred in para-1 of this Judgement. Hence this appeal.
4. Arguments of learned counsel for the parties heard and record perused.
5. Perusal of the record would show that besides other sections of law, section 139 of the Customs Act, 1969 (hereinafter to be referred as the "Act") has also been applied to the present case. This section deals with the method of declaration to be made by the passenger /owner for the purpose of clearing his baggage. The same being relevant is reproduced as under:
"Declaration by passenger or crew of baggage.- The owner of any baggage whether a passenger or a member of the crew shall, for the purposes of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such articles for examination.
Provided that where the Customs Computerized System is operational, all declarations and communications shall be electronic."
Bare reading of the above section of law would show that this section, on one hand places responsibility on the passenger/owner of the baggage to make declaration verbal or written qua the contents of his baggage and on the other hand equally casts duty on the "appropriate officer" of the Customs to ask certain questions from the passenger in respect of his baggage and articles contained therein. Now, this Court has to see whether the said section of law has duly been complied with and whether the prosecution has proved the element of concealment on part of the accused appellant for the purpose of smuggling) foreign currency abroad or otherwise.
6. On perusal of contents of FIR/Murasila as well as the notice under section 171 of the Act served upon the accused appellant, no reference can be found qua the fact that any chance was provided to the accused for the required declaration or that any question was put to the accused in respect of the contents of his baggage. Similarly, the statement of the complainant/seizing officer recorded by the I.O under section 165 of the Act is also silent regarding the fact that the provisions of section 139 were adhered to. On the other hand, Sepoy Sheraz Ahmad as well as lady constable Monica in their statements have stated that the complainant/seizing officer had asked the accused appellant whether he had any illegal foreign currency. Both these statements are ditto copy of each other and it seems that only the name of the witnesses has been changed. Likewise, the statement of accused appellant recorded by the I.O is available on record which shows no reference of any chance provided to him for the purpose of declaration. In the said statement, the accused appellant has showed his unawareness qua the fact that taking such quantity of foreign currency abroad is a crime.
7. In respect of the concealment of the currency, it is alleged by the prosecution that accused had kept the currency in a cloth sack/bag wherein apparently peanuts were lying, however, when checked the foreign currency detailed in the FIR was recovered. It is noted that neither in the Murasila/FIR nor in the recovery memo, there is any mention that the cloth sack/bag and the peanuts were taken into possession nor the statement of the seizing officer/complainant contains any mention in this respect. Similarly, in the notice served upon the accused appellant under section 171 of the Act, no reference has been given qua taking into possession the cloth bag and the peanuts. Similarly, there is no reference qua the recovery of cloth bag and the peanuts in the personal search memo of the accused appellant.
8. During trial, prosecution has examined Miss. Monica lady constable as PW-1 who is marginal witness to the recovery memo. In her cross-examination, she showed her unawareness regarding notice under section 139 of the Customs Act, 1969. She also admitted that her statement is silent to the extent of giving notice to the accused appellant under the above section of law. She further stated that the seizing officer Azhar Naeem have asked the accused whether he had any notified items or not in his possession. This witness was confronted with the statement of Muhammad Azhar Naeem inspector however, there was no reference of notice under section 139.
Muhammad Iqbal Inspector has investigated the case who has been examined before the court as PW-2. In his cross-examination, he admitted it correct that in the challan, there is no reference to the extent of any chance provided to the accused for declaration, mis-declaration, non-declaration, concealment etc. He also admitted it correct that his investigation is silent to the extent of declaration or mis-declaration under section 139 of the Act.
The complainant/seizing officer has been examined before the Court as PW-3. In cross-examination, he admitted it correct that nowhere in the Murasila, FIR and in his statement recorded under section 165 of the Customs Act, it has been mentioned that the accused was given the chance of declaration. He further admitted that accused appellant was served by him with a notice under section 171 of the Customs Act 1969 which is silent to the extent of declaration and misdeclaration. He further admitted it correct that neither in the recovery memo nor in the personal search memo there is any reference given relating to the bag of cloth and peanuts.
9. The statement of accused recorded under 165 of the Customs Act by the 1.0 as well his statement under section 342 Cr.P.C recorded before the court would show that he has not denied the possession of the currency, however, he stated that he was not in the knowledge that taking such quantity of foreign currency abroad is a crime and that he has not committed or attempted to commit any offence of smuggling foreign currency. It is worth mentioning here that Customs Act, 1969 is a special law specifically dealing with the levy and collection of customs-duties, fee and service charges and other allied matters, therefore, the crew of Customs posted at the Airport must have the knowledge of such law and are bound to have resource to section 139 of the Act in the first place. But here, in the instant case, no notice under section 139 of the ibid Act was given to the accused appellant. Similarly, neither the cloth bag nor the peanuts were taken on recovery memo nor any other evidence was brought on record that the currency was maneuvered to be concealed in a manner so as to prove the allegation qua smuggling of foreign currency abroad. In case titled "Masood v. the State" (1987 MLD 1602), accused charged for smuggling of gold etc was neither given notice under section 139 of the Customs Act, 1969 nor the concealment of such articles was proved as such, the conviction awarded to accused was set aside and he was accordingly acquitted. The relevant extract of the judgement is reproduced as under:-
---Ss.156(1)(8) & 139--Smuggling into Pakistan--Iranian National subjected to search at Airport while in transit--Twenty-seven slabs of gold and 5 wrist-watches recovered from his bag--Accused not afforded any opportunity to declare contraband gold nor asked to do so under S.139--Gold and watches not concealed in any false bottom of hand bag--Currency declaration form confronted to witness--Mere presence of gold in baggage of accused without any attempt to conceal it from detection, held, was not sufficient to hold that accused was guilty of smuggling or attempting to smuggle gold into Pakistan-
Acquittal ordered in circumstances.;
10. For what has been discussed above this Court is of the firm view that the prosecution failed to establish the offence of smuggling or attempt to smuggle foreign currency by the appellant abroad beyond shadow of doubt. It is well settled by now that a single circumstance creating doubt in the prosecution case is sufficient to be resolved in favour of the accused. The august Supreme Court of Pakistan in case titled "Tariq Pervez v. the State" (1995 SCMR 1345) held as under:
"For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
11. This Court thus, holds that the impugned judgement whereby the appellant was convicted and sentenced cannot be maintained. Resultantly, the instant appeal is allowed and the conviction and sentence awarded to the accused appellant by the Special Judge, Customs Taxation and Anti Smuggling, Khyber Pakhtunkhwa Peshawar vide judgement dated 23.12.20219 is set aside. Resultantly, the accused appellant is acquitted of the charges levelled against him in the instant case. He is on bail (under section 426 Cr.P.C). His bail bonds stand cancelled and sureties are relieved of their liability towards bonds. The seized currency is, however, confiscated to the State.
JK/168/P Appeal allowed.