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Special Appeal No.5 of 1981, heard on 16th December, 1984.

‑‑‑S.156(1) (B)‑‑Articles recovered from accused at Airport‑‑Accused taking plea right from beginning that he had filed declaration anti goods were to be deposited with Customs Officers to be taken back‑ Declaration undisputably filed on prescribed form‑‑Other circumstances also casting reasonable doubt on prosecution story‑‑Benefit of doubt given to accused‑‑Accused acquitted in circumstances.

1980 P Cr. L J 771 and 1980 P Cr. L J 1135 ref.

Muhammad Hayat Junejo for Appellant.

Abdul Sattar for the State.

Date of hearing: 16th December, 1984.

This appeal is filed against the impugned judgment, dated 26‑8‑1981 wherby appellant has been convicted for offence under section 156(1) (8) of the Customs Act, 1969 and sentenced to R.I. for one year and a fine of Rs.30,000 and in default of the payment whereof further sentenced to R.I. for six months.

2. Briefly stated the relevant facts giving rise to this appeal are that appellant according to the case of the prosecution landed at Karachi Airport on 20‑8‑1979 at 10‑45 p.m. from Dubai by P.I.A. flight and had five suit‑cases which were examined. It is stated that appellant opened two suit‑cases with keys and the other three by setting the numbers of locks. The following articles were recovered:‑

(1) 2,000 wrist watches.

(2) 480 VCR Cassettes.

(3) 648 Neck‑chains.

(4) 950 yards of silk.

3. After completion of other formalities challan was presented. Before the trial Court prosecution examined in all four witnesses. P.W.1 is Khuda Dino Memon, Senior Preventive Officer, P.W.2 is Turab Khan, Mashir, P.W.3 its Akhtar Hussain who has given estimate of valuation of the goods in question and P.W.4 is Abdul Bari, Senior Preventive Officer, who has presented the challan in the Court.

4. Before the trial Court appellant in his 342, Cr.P.C. statement filed a written statement in which plea has been taken that he had filed declaration and the goods were to be deposited with the Customs Officers to be taken back later to its destination i.e. Dubai. One defence witness namely Abdul Jameel was examined who has supported the appellant.

5. It is submitted by Mr. Muhammad Hayat Junejo that in this case defence plea as such was taken right from the beginning as is evident from the record. This defence plea is reasonably true because it stands so proved from the record of the prosecution. Learned counsel has pointed out that Exh. 3‑F on the record is the printed declaration form which was signed by the Customs Officer as well as the passenger. According to this form all the articles recovered are specified against which value is also given. Emphasis is laid down on the fact that firstly this form is indisputably a declaration form which is on the prescribed form and this fact is not denied by Mr. Abdul Sattar counsel for State. Secondly it is stated that had it not been a signed declaration of the passenger then in the ordinary course Mashirnama would have been prepared without signature of the passenger concerned. Prosecution case on this point is not very clear. It appears that according to the prosecution this inventory was prepared as a prelude to the preparation of Mashirnama of recovery of offending articles. Nothing is available on the record to satisfy that there was such necessity of preparing first the inventory and then Mashirnama of recovery. The very fact that valuation of each article is shown indicates that it was signed as declaration. It is also noticed that on this very prescribed form of declaration signatures of Mashirs have also been obtained. Mr. Hayat Junejo contends that these signatures of Mashirs were obtained on this form subsequently. In view of this inventory as the prosecution calls it with some doubt for the reason that had it really been inventory then why small articles of value of Rs.30 have been shown like cigarette, charlee cologne and other colognes. The second ground which has impressed me very much is that as to why signature of appellant/ passenger was taken on this form which is normally used as declaration form. Not only this but in the cross‑examination of prosecution witnesses suggestions relating to defence theory have been made which have been denied. Such suggestions appear in the cross‑examination of P.W. 1 Khuda Dino Memon and P.W.2 Turab Khan out of them one is Customs Officer and the other is Mashir. The case of the defence is reflected in the statement under section 342, Cr.P.C. It is stated in the statement in writing filed by the appellant that the goods were destined for Dubai and the appellant had in fact taken the flight from Hong Kong to Dubai where he was supposed to deliver the goods in question to his employer who did not turn up as such there was no other way out and the appellant had to bring the goods to Karachi where he declared them. Appellant was in a hurry to go to Karachi as he had to celebrate Eid with his children. Appellant had also produced documentary evidence in support of his plea and produced photo copy of confirmed ticket for going back to Dubai. Appellant also produced tags showing that goods in question had come from Dubai and not from Hong Kong. According to the appellant if the goods had to be smuggled into Pakistan from Hong Kong then there would have been tags of Hong Kong and not of Dubai: It is also stated that if the intention was to import illegal goods from Hong Kong then there was no need to go to Dubai because Karachi Airport comes first and then Dubai. Now this plea has been taken up right from the beginning and it has been put to material prosecution witnesses in their cross‑examination. One defence witness examined also supports this plea who was fellow‑passenger of the appellant and deposed that at Dubai appellant was looking worried and waiting for somebody. It appears that this version taken up by the appellant casts reasonable doubt on the prosecution story. It reacts on the prosecution case. In the circumstances it is possible that plea taken by the appellant may be true. Hence the version of the prosecution becomes doubtful. In such circumstances benefit can be given to the appellant. Reliance is placed on 1980 P Cr. L J 771 and also another case reported in the same book 1980 P Cr. L J 1135.

For the facts and reasons stated above. I am of the view that prosecution case is not free from doubt as such impugned judgment is hereby set aside and the appellant is acquitted. In consequence appeal is allowed. Appellant is on bail and his bail bond is hereby cancelled.

M.A.K. Appeal accepted.

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