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Special Criminal Appeal No. 3 of 1978, decided on 24th June, 1986.

‑‑S. 103‑‑‑Search witness, reliability of‑‑Mashir being not a person of locality, held, would be a non‑compliance of S.103, Cr.P.C.‑ [Recovery].

‑‑‑Ss. 156(1)(89) & 162‑‑Evidence, appreciation of‑‑Benefit of doubt‑ Four co‑accused acquitted on same set of evidence and case of accused at par with their case‑‑‑Mashir an informer of Coast Guard Department and worked for them for reward‑‑Despite sufficient time and opportunity, search conducted without warrants, in violation of S. 162‑‑Major of Coast Guard though present at time of incident yet not examined at trial‑‑Accused given benefit of doubt and acquitted, in circumstances.

Shoukat Hussain v. Zulfiqar and others P L D 1981 Lah. 13 ref.

Sarwar Khan for Appellant.

Habibur Rahman for the State.

Dates of hearing: 23rd and 24th June, 1986.

This appeal is directed against the judgment, dated 30‑3‑1978 of Special Judge (Customs and Taxation), Karachi whereby he convicted the appellant Haji Moosa under clause (89) of section 156(1) of the Customs Act, 1969 and sentenced him to undergo R.I. for six months and to pay a fine of Rs.20,000 or in default to undergo R.I. for six months more.

2. The case of the prosecution in brief, is that Capt. Ali Hamid of Coast Guards on receiving spy information went to the office of appellant Haji Moosa where he found that two persons were sitting there and transaction of foreign currency was going on. The appellant Haji Moosa produced US 1500 before Subedar Azam. Capt. Ali Hamid disclosed his identity and secured the dollars from the appellant. The foreign currency was secured from other accused namely Saleemuddin, Irshad Illahi and Muhammad Jaffar. Capt. Hamid Ali also secured US 500 Dollars from Dicky of Car of Haji Moosa. Mashirnarmr was prepared and it was attested by Mashir Tariq Sajjad and Muhammad Ali. All the five accused were arrested. The learned Special Judge (Customs and Taxation), Karachi by the same judgment acquitted four accused and convicted the appellant as stated above.

3. The prosecution in support of the case before the Special Judge examined P.W. 1 Tariq Sajjad Exh. 6, P.W. 2, Capt. Ali Hamid Exh. 9, P.W. 3 Raja Liaquat Exh. 10.

4. Appellant in his statement under section 342, Cr.P.C. Exh. 11 denied the allegations and stated that he had enmity with P.W. Subedar Azam. He also filed written statement Exh. 11‑A in which he stated that foreign currency was not recovered from him. He stated that Major Azam and P.W. Ali Muhammad came to his office and took him and his servant Ilyas Khan with them alongwith Pakistani currency of Rs.1,20,785. He examined eight witnesses in his defence. They have stated that appellant was taken away and currency was foisted on him.

I have heard Mr. Sarwar Khan for the appellant and Mr. Habibur Rahman, for the State. It is contended by Mr. Sarwar Khan that Mashir was paid employee of the Custom Department, therefore, his evidence is not reliable. He has argued that there is violation of the provisions of sections 162 and 171 of the Customs Act as the office of the appellant was searched without the warrant as required by law and notice as required under section 171, Cr.P.C. was not served. He has further argued that learned Special Judge on the same set of evidence has acquitted the co‑accused.

6. Mr. Habibur Rahman appearing for the State has supported the judgment and stated that prosecution has proved the case and conviction against the appellant is proper.

7. Mr. Tariq Sajjad Exh. 6 has stated that on 23‑6‑1976 at 3‑00 p.m. he was passing behind the Memon Masjid when two persons of Coast Guards stopped him and took him to Allahwala Building where one Toyota Corolla Car being No. KCC‑180 was standing. One person got down from the car. Capt. Hamid told him (Tariq Sajad) that he was Haji Moosa and must be carrying smuggled foreign currency in his hand‑bag. He stated that they followed him to a room on the first floor where four persons were sitting, and were dealing in foreign currency with two persons. They took dollars from those persons after making payment in Pakistani currency. Two Coast Guards Officers told the appellant about the rate of the dollars. He agreed to sell at the rate of Rs.11 per dollar. Appellant took out the dollars on which the Coast Guards Officers disclosed their identity and secured 1.500 US from the accused. He took Coast Guards people to his car and produces 500 dollars from the dicky of the car. He stated that front accused Saleemuddin foreign currency was also secured. Rs.1,20,785 were taken from the table of appellant Haji Mossa. In his cross‑examination he has admitted that Coast Guards people had given him a card bearing No, 001. And one case has been filed against him alleging therein that he had taken bribe or showing the Identity Card. He has admitted that he is informer of the Coast Guards and used to get reward for the informations. He has stated that Coast Guards people did not give anything in writing to the accused before search.

8. P. W. 2 Ali Hamid Exh. 9 stated that one day before the incident he received spy information. In persuance of that he went and secured foreign currency from the office of the appellant. He has corroborated the contents of the F.I.R and has given the details of Search. He produced the F.I.R as Exh.9-A.

9. P.W. 3 Raja Liaquat Exh. 10 is the Investigating Officer. He has stated that he alongwith complainant and some other persons went near Allahwala Building. They saw a car which came there and a person got down with the brief case and went upstairs in the building. He has stated that the person was not previously known to him. After about 5 mintues Capt. Hamid with his party rushed upstairs. He followed them and stood out side the room. He stated that he did not‑see the recoveries as he was standing outside. He has further stated that Capt. Hamid came out after 15b or 20 minutes alongwith appellant Haji Moosa, Subedar Azam and two Mashirs and went downstairs to the car. He went alongwith Capt. Hamid, who opened the dicky of the car and secured US 500. Then they went inside the office and prepared Mashirnama and other papers. The appellant alongwith other accused Guards Headquarters alongwith the currency and the car. He then interrogated the accused and examined Capt. Hamid, Subedar Azam and the Mashir. He stated that after completing the investigation he handed over the case papers to the Headquarters Commissioner Officer Major Mukhtar who filed the complaint in the Court. He produced complaint as Exh. 10-A.

10. In the present case four co‑accused, have been acquitted on the same evidence. The case of the present appellant Haji Moosa is at par as foreign currency was secured from all the accused who were sitting there. Mashir Tariq Sajjad has given obliging statement so far three co‑accused are concerned but he 'has implicated appellant and one Saleemuddin. It is an admitted position that this Mashir Tariq Sajjad is a spy of the Coast Guards and used to get rewards when something was secured. The learned Special Judge has given the benefit of doubt to the other co‑accuses and discarded the evidence of this Mashir to that extent. The Mashir is not an independent person. He is not from the locality, therefore there is non‑compliance of section 103 of the Criminal Procedure Code. Complainant Ali Hamid in his examination‑in‑chief stated that he got spy information about transaction of foreign currency one day prior to incident but in spite of that he did not obtain the search warrant from the Magistrate concerned as required by section 162 of the Customs Act. On this Mr. Sarwar Khan referred to a case reported in Shoukat Hussain v. Zulfiqar and others P L D 1981 Lah. 13.

11. The complainant had sufficient time to get the search warrant but he failed to do so and there is clear non‑compliance of mandatory provision of law. Major Malik Azam has also been shown as prosecution witness but he has not been examined. Appellant had alleged enmity with this Major Azam. It is admitted that at the time of incident he was present but for the reason best known to the prosecution he was not examined. Looking to the peculiar circumstances of the case and non‑compliance of the provisions of the law, I am of the view that this is a case where appellant can get benefit of doubt. Accordingly II accept the appeal and acquit the appellant. He is on bail. His bail bond stands discharge.

12. Mr. Sarwar Khan frankly stated that Special Judge has not passed any order for the return of the Pakistani currency as the matter is required to be adjudicated by the Coast Guards authorities. He even does not press this point before this Court for the refund of the currency, therefore, no order is necessary in this regard.

S. G. D. Appeal allowed.

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