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Criminal Appeal No. 319-C of 1978 decided on 13th February, 1983

----S. 156 (1) (89)-Smuggled goods--Appreciation of evidence Testimony of defence witnesses including Chairman Sarafa Bazar Association showing that accused a member of association and used to work with his father a broker in gold and silver ornaments and one of prosecution witnesses also admitting that accused's father dealt to gold in Sarafa Bazar -Circumstances that accused found in possession of very large quantity of gold, held, can hardly be regarded as something suspicious.

---- Ss. 156 (1) (89) & 156 (2)-Smuggled goods - Burden of proof-Burden of proof in criminal case generally lying entire ly on prosecution but in case of smuggled goods provisions of S. 156 (1) (89) & 156 (2) making departure from said rule and lessening burden of proof of prosecution who has only to show that reasonable grounds exist to believe or suspect that goods found in possession of accused are smuggled.-[Burden of proof].

-----Ss. 156 (1) (89) & 156 (2)-Evidence Act (t of 1872) S. 156(1) Smuggled goods-Burden of proof-Burden of proof that goods found not smuggled goods, held, shifts to accused person only after prosecution has been able to establish that there are reasonable grounds for belief of suspicion that goods are smuggled goods.-[Burden of proof].

-----Ss. 156 (1) (89) & 156 (2)-Smuggled goods-Appreciation of evidence-Evidence on record not giving rise to a reasonable belief or suspicion that gold found in possession of accused was smuggled one-Accused and his father engaging in business of gold and possession of very large quantity of gold not a suspicious circumstance - No marking found on gold bars and same available in local market-Explanation offered by accused could not be rejected outright as false or incredible--- Gold found in his possession, held, not smuggled one-Convic tion and sentence of accused not sustained and order of con fiscation of gold set aside.

Mian Najam-uz-Zaman for Appellant.

Sh. Maqbool Ahmad 11 for the State.

Date of hearing : 13th February, 1983.

The appellant, Muhammad Iqbal (aged: 32 years), was convicted by the learned Special Judge, Customs, Lahore, of an offence under S. 156 (1) (89), Customs Act and was sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs. 50,000 in default of payment of the fine he was directed to suffer further rigorous imprisonment for a period of one year, In addition he was ordered to receive ten stripes. The appellant has filed this appeal against his conviction and sentences.

2. According to the prosecution on the night between 19th and 20th of August, 1976 the appellant came by air from Karachi and was on his way home inside the walled city in a rickshaw. He had two attach -cases with him. A few days earlier Mian Sultan Asghar (P. W. 3), Deputy Superintendent of Police, had received secret infor mation that certain persons were about to bring smuggled gold from Karachi to Lahore. Upon receipt of this information Mian Sultan Asghar (P. W. 3) organized a raiding party and held up the rickshaw carrying the appellant on Shahalami Road near Chauk Shahalami. The two attach -cases which the appellant was carrying were forced open as the appellant stated that he had left the keys behind in Karachi. Each of the two attach -cases contained 100 bars of gold, each bar weighing 10 tolas. According to then prevailing price the gold recovered was of the value of Rs. 12.00,000. The appellant was arrested and the gold recovered from the attach -cases was taken into possession by the raiding party. The sample of the gold were separately prepared and sent to the Pakistan Mint for examination. Mr. N. M. Butt (P. W. 4) who was then posted as Superintendent in the Assay Office reported that the fineness of the gold varied from 998.5 to 998.6 per thousands parts. The Superintendent of Police then lodged a complaint under section 156 (1) (89) of the Customs Act against the appellant in the Court of the Special Judge, Customs.

3. The appellant pleaded not guilty to the charge against him. He admitted that he was held up by the raiding party when he was carrying two thousand tolas of gold with him. He stated that he and his family were engaged in gold-business since generations. His further had died and the gold found in his possession belonged to his brother and sisters. He had taken the gold to Karachi for sale but as he did not get a good price at Karachi he had to bring it back to Lahore. He produced three witnesses in his defence.

4. In support of its case the prosecution examined Mian Sultan Asghar (P. W. 3), Maulvi Abdul Haq (P. W. 1). Mr. N. M. Butt (P. W. 4), A. S. I. Inayat Ullah (P: W. 5) and A. S. I. Sharif Ahmad (P. W. 6). A. S. Ls Inayat Ullah (P. W. 5) and Sharif Ahmad (P. W. 6) are merely formal witnesses. It is, therefore, not necessary to deal with their evidence. Mian Sultan Asghar (P. W. 3) was the head of the raiding party. He has deposed about the recovery of the gold from the possession of the appellant. The appellant has not challenged his testimony in so far as it relates to the recovery of the gold from his possession.

5. The plea of the appellant that he and his father were doing business in gold finds support from the testimony of three defence witnesses. They are Haji Muhammad Yaqoob (D. W. 1), Soofi Abdar Rashid (D. W. 2) and Haji Muhammad Ilyas (D. W. 3). Soofi Abdur Rashid (D. W. 2) is the Chairman of the Sarafa Bazar Association. He stated that the appellant was a member of his association. Hey further stated that the father of the appellant was a broker in gold and silver ornaments and that the appellant used to work with his father. There is no reason why the statement of these defence witnesses with regard to the business conducted by the appellant and his father should be disbelieved. The assertion of the appellant with regard to his father's profession was admitted even by one of the prosecution own witnesses, namely. Maulvi Abdul Haq (P. W. 1). This witness stated that the father of the appellant had dealt in gold in the Sarafa Bazar at Lahore. This being so, the circumstan ces that the appellant was found in possession of a very large quantity of gold can hardly be regarded as something suspicious.

6. The next question for consideration is whether the gold found 113 the possession of the appellant had been smuggled into Pakistan or that there were reasonable grounds for believing that it was smuggled gold. Before I consider this aspect of the case I think it will be con venient to reproduce the provisions of law 'under which the appellant has been convicted. Clause 189) of section 165 (1) of the Customs Act is in the following terms

If any person without lawful- Such. goods shall be liable to

excuse, the proof of which shall be confiscation and any person con-

on such person, acquires posses- cerned in the offence shall be

sion of, or is in any way concern- liable to a penalty not exceeding

ed in carrying, removing, deposit- ten times the value of the goods;

ing, harbouring, keeping or coin- and upon conviction by a Special

cealing, or in any manner dealing Judge to imprisonment for a

with smuggled goods or any goods term not exceeding six years and

with respect to which there may be to fine not exceeding ten

reasonable suspicion that they are times the value of such goods and

smuggled goods: if the Special Judge in his dis

Provided that if the smuggled cretion so orders also to whipp

goods be gold bullion or silver the ing.

bullion the onus of proving

plea that such bullion was obtain

ed by a processing or other means

employed in Pakistan and not by

smuggling shall be upon the per

son taking that plea.

The above clause may be read with subsection (2) of the same sec tion. It runs as follows:-

Where currency, gold, silver, precious stones, ornaments or other manufactures of gold, silver or precious stones, or other goods which the Federal Government may, by notification in the official Gazette, specify are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable there on or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized.

Ordinarily in a criminal case the burden of proving each and every ingredient of the offence with which an accused person is charged lies entirely on the shoulders of the prosecution. Therefore, in accordance with this well-settled rule before a person can be convicted of being U found in possession of smuggled goods the onus of establishing that the goods in question were smuggled should fall on the prosecution. How ever, the provisions of section 156(1)(89) and section 156(2) make a departure from the said rule inasmuch as they lessen the burden of the prosecution in this regard, for now the prosecution has only to show that there are reasonable grounds to believe or suspect that the goods found in the possession of the accused-person are smuggled. Once this has been done, the burden shifts to the accused person to show that the goods found with him were not smuggled. But it is important to note that the burden shifts to the accused-person only after the prosecution ha been able to establish that there are grounds for reasonable belief or suspicion that the goods are smuggled.

8. In this case there is no evidence on the record which can gives rise to a reasonable belief or suspicion that the gold found in possession of the appellant was smuggled. As already mentioned the appellant and his father were engaged in the business of gold and were member of the Sarafa Bazar Association, Therefore, the presence of a, very large quantity of gold in his possession could hardly be regarded as a suspicious p circumstance. There were no markings on the gold bars recovered from him. According to Mr. N. M. Butt (P. W. 4) the gold of 999.1 finances was available in Pakistan. According to another witness of the prosecu tion, namely, Maulvi Abdul Haq (P. W. I) the gold produced in the Court was available in the local market. The appellant was caught while coming from Karachi but his explanation was that be had taken the gold to Karachi for sale but had brought it back when he could not strike a suitable bargain there This explanation cannot be rejected outright as false or incredible. In the circumstances I can find no basis for enter taining any belief or suspicion that the gold found in possession of the appellant was possibly smuggled.

9. For the reason stated above I am unable to sustain the conviction and sentences of the appellant. Accordingly, I set aside the same and g acquit him of the charge against him, He is already on bail. His bail bond shall stand discharged.

10. The learned Special Judge has directed' confiscation of the gold. This order is set aside but the disposal of the gold will be subject to the orders of the relevant authorities under the Customs Act.

Appeal accepted.

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