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Special Criminal Appeal No. 1 of 1983, decided on 17th June, 1987.

---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 5.139--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--In case of true declaration of contraband articles, appropriate officer would have returned such articles on his leaving Pakistan Acquittal ordered in circumstances.;

K.M. Nadeem for Appellant.

Jalaludin Baloch for the State.

Date of hearing: 25th March, 1987.

The appellant who is an Iranian national has been convicted by the Special Judge (Customs & Taxation), Karachi under S.156(1)(8) of the Customs Act to S. I. for one year and a fine of Rs. 20,000 or in default of payment of fine to suffer further S.I. for 3 months. He has appealed against his conviction and sentence. The case of the prosecution against the appellant was that on 10-7-1982 the appellant arrived at the Karachi International Airport by Gulf Air Flight No. GF-762. That the appellant was subjected to search and examination on his arrival in the International Customs Lounge at Terms,:. No.l, Karachi, by the Preventive Officer, Customs, Shakir Hussain, and or search his hand bag yielded 27 slabs of gold each weighing 10 tolas A and 5 wrist watches from the false bottom of his hand bag. The above offending articles alongwith the travelling documents of the appellant were seized under a Mashirnama prepared at the spot. After usual investigation the accused was challaned before the learned Special Judge (Customs and Taxation) Karachi who convicted him under section 158(1)(8) of Customs Act, 1969 for offence of smuggling 27 slabs of gold. The learned counsel for the appellant contends that the appellant who is an Iranian national was in transit and, therefore, the learned Special Judge wrongly held him guilty of smuggling gold in Pakistan. Alternatively, it is contended by the learned counsel that the appellant being a foreign was unaware of local laws and was not given any opportunity to declare the contraband gold as required by section 139 of the Customs Act. Learned counsel for the State on the other hand supported the judgment of the learned Special Judge (Customs & Taxation) and contended that there was no proof available on

record that the appellant was a passenger in transit and as the bringing in of gold is prohibited the learned Judge rightly convicted the appellant for offence of smuggling gold into Pakistan. After hearing the learned counsel for the appellant and the learned counsel for the State I am of the view that this appeal must succeed on the alternate submission of the learned counsel for the appellant. The F.I.R. in the case which was lodged by the Preventive Officer, Customs Shakir Hussain on 10-7-1982 soon after seizure of gold from appellant shows that immediately on arrival of the appellant in the Customs Examination Hall at Terminal No.1, Karachi Airport, he was suspected by the said Preventive Officer and was subjected to search which yielded 27 slabs of gold each weighing 10 tolas bearing Swiss mark and 5 wrist watches from the false bottom of the hand bag carried by the appellant. There is no mention in the F.I. R that the accused appellant who is admittedly a foreign national and does not speak or understand any other language except Persian was either asked to make declaration as required under 5.139 of the Customs Act or was given an opportunity to declare any contraband items in his possession on arrival in the Customs Examination Hall. It is also significant that in the F.I.R. it is stated that the offending articles namely the slabs of gold and wrist watches were found concealed in the false bottom of the hand bag which the appellant was carrying. The Customs Officer Shakir Hussain when cross-examined by the appellant's counsel stated as follows:

"It is correct that the gold slabs and 5 wrist watches were not concealed in any false bottom of the hand bag."

No doubt that witness also stated in his evidence that on arrival of appellant at the customs counter he enquired from him if he had any gold or currency with him, the appellant allegedly replied in the negative, but this was an obvious improvement made by the witness in his statement as this important fact was not mentioned in the F.I.R. which was lodged by this witness after about two hours of the arrival of appellant at Karachi Airport and interception by the witness. It is also admitted by this witness in cross-examination that besides the offending articles namely gold slabs and wrist watches the hand bag of the appellant also contained some wearing apparels but these articles are not shown in the mashirnama prepared by the witness at the spot. One of the mashirs in the case, namely, Bashir Ahmed, who claims to have witnessed the recovery of gold from appellant's bag was examined by the prosecution. This witness in his cross-examination stated that he had seen only gold slabs in the hand bag of appellant and no other articles. He also stated that customs officer Shakir Husain had informed him that 5 wrist watches were also recovered from the accused. The Investigating Officer Abdul Rahim Sidiqui in his cross-examination admitted that there is no direct air route for Iranians to go to Iran from Karachi and they go to Iran from Karachi through train, buses and other transport. The appellant/ accused in his statement under 5.342, Cr.P. C. stated before the Court that on arrival in the customs hall at the Karachi Airport, Terminal No.l he informed the Customs Officer Shakir Husain that he was going to Iran and had also informed that he was carrying gold and currency to Iran. The currency declaration form filled in by the appellant was confronted to witness Shakir Husain in cross-examination and he made the following reply:-

"I produce the currency form as Exh. 5F.

It is a FM Form. I do not know as to by which officer it has been signed. Apparently it bears the signatures of some officer and the seal of the Customs and endorsement 'checked'. It also bears the date as 10-7-1982."

He further stated, that at that time no masher was present and that 5 wrist watches which included one which he was wearing and a gold ring which was also in his hand were also recovered by the customs officer. He admitted his signature on the notice under section 171 of the Customs Act but stated that he was made to sign the copy of the notice on the ground that if he failed to sign the same he will be handed over to Iranian Embassy. He denied that he had attempted to smuggle gold and currency into Pakistan and stated that he was taking them to Iran through Taftan border. He also stated in his written statement which he filed in the case that he was taking the watches as gift for his sisters, wife and the gold was being carried as Amanat for "Punja" and some for his personal use. He further stated that he is settled in Dubai and is working there and as it is difficult to exchange the Dubai currency in Iran so he had converted it into gold which he was carrying to Iran. He stated that he was on transit through Zahidan to Iran and he carried 1500 US Dollars, 1200 Pakistani rupees and 250 Dubai dharms, one ring fitted with Aqiq and feroza which were seized by the Customs Officer. The learned trial Judge while convicting the appellant failed to notice that mere presence of gold in the baggage of appellant was not sufficient to hold that he was guilty of offence of smuggling or an attempt to smuggle gold as in the event of a true declaration of such contraband gold under section 139 of the Act the appropriate officer had the discretion to detain such articles for the purposes of being returned to him on his leaving Pakistan. The plea of the appellant that he had informed the Customs Officer Shakir Husain or in the alternative he was not afforded any opportunity to declare the same under section 139 of the Act, find support from the fact that in the F.I.R. which was lodged by the Customs Officer Shakir Husain immediately after seizure of gold, makes no mention about the declaration of appellant under section 139 of the Act. The fact that the Customs Officer Shakir Husain admitted in his cross-examination that the gold carried by appellant was not concealed in the false bottom of the hand bag G as alleged in the F.I.R. but was obviously lying with the clothes of the appellant goes to show that there was no attempt on the part of appellant to keep the gold in a manner which would have avoided its detection in the ordinary course of search. In these circumstances I am of the view that the prosecution failed to establish smuggling or attempt to smuggle gold by the appellant in Pakistan. The appeal is accordingly allowed and the conviction and sentence awarded by the Special Judge (Customs and Taxation) Karachi is set aside. The appellant is on bail his bail bonds are accordingly cancelled.

S. A. /M-201/ K Appeal accepted.

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