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Petitioner: ROYCE DEAN WELLMAN VS Respondent: THE STATE Through Collector Of Customs JUDGMENT
Court Name: Sindh High Court Judge(s): Ghous Muhammad Title:ROYCE DEAN WELLMAN vs THE STATE Through Collector Of Customs
JUDGMENT
Reported As: 1997 MLD 1708 Result: Appeal allowed Judgment JUDGMENT On 17-7-1996 this appeal was allowed by a short order. Hereafter, appear the detailed reasons. The instant appeal under section 185-F of the Customs Act, 1969 (hereafter "the Act 1969") arises out of conviction of the appellant through judgment passed by the Special Judge (Customs and Taxation), Karachi, dated 30-3-1994 in Case No.69 of 1993 whereby the appellant was convicted under section 156(1)(8) of the Act, 1969 and sentenced to undergo rigorous imprisonment for 10 years plus fine of Rs.5 lacs, and in default of the latter to undergo a further rigorous imprisonment for 2 years, while allowing deduction of the time spent in jail by the appellant as an under trial prisoner. 2. The facts necessary for disposal of the present appeal are that the appellant, Royce Dean Wellman, an American national holding American Passport No. Z-6963651, while on his exit from Pakistan was intercepted and arrested at the Quaid-e-Azam International Airport on 2-3-1993 on charges of attempting to smuggle 5 Kg. Of heroin powder. Noor Ahmed Panhwar, the complainant and seizing officer lodged F.I.R. On 2-3-1993 at 10-00 p.m. Since the basis of allegations by the prosecution are contained in the F.I.R. The contents whereof are being reproduced as under:----- "On 2-3-1993, while I was performing my duties at the International Departure Hall,Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi where baggage examination of the outgoing passengers of the Gulf Air's Flight No.GF-733 for Muscat was in progress, I suspected and intercepted a passenger, later on identified as Royce Dean Wellman holding US, Passport No.Z- 6963651, who was leaving for Frankfurt via Muscat by the aforesaid flight. The passenger was asked to declare whether he was carrying any contraband goods i.e. Narcotics etc., in his baggage or on
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his person to which he denied. Being dissatisfied with the passenger's declaration his baggage comprising a blue colour ' Corallite' suitcase was subjected to examination in presence of two independent witnesses Messrs Mazhar Abbas and Muhammad Shahbaz. The suitcase which apparently, contained personal belongings of the passenger upon minute examination was felt somewhat heavy in weight. As such the top and bottom of the said suitcase was broken which led to the recovery of 4 polythene bags each cleverly concealed in the false top and bottom of the suitcase. Further, examination of these 8 polythene bags yielded the recovery of brown colour heroin powder. The brown colour heroin powder, so recovered, on weighment was found to be 5 Kgs. (gross) and was seized alongwith containers and travelling documents of the passenger under the cover of a Mashirnama prepared on the spot. Representative samples of the seized heroin were also drawn which were sealed and signed by both the witnesses. Passenger/accused namely Royce Dean Wellman was arrested and a notice under section 171 of the Customs Act, 1969 was served upon him." The investigation was carried out by S.P.O. Javed Akhter Mughal and the seized heroin powder was deposited in the State warehouse. After due investigation the final challan was submitted on 14-6- 1993, wherein one of the alleged culprits Muhammad Aziz was shown as an untraceable accused against whom proceedings under section 512, Cr.P.C. Were initiated, while he was declared as absconder. Formal charge under section 156(1)(8) of the Act, 1969 was read out to the appellant to which he pleaded "not guilty". The prosecution then examined 4 witnesses namely, P.W.1 being the complainant /seizing Officer i.e. Noor Muhammad Panhwar (Exh.4). P.W.2 i.e. Muhammad Iqbal Malik the then Deputy Assistant Medical Examiner Customs Laboratory (Exh.5). P.W.3 i.e. Muhammad Shahbaz, who acted as a Mashir of seizure of heroin powder (Exh.6) and PWA i.e. Javed Akhter Mughal, who had investigated this matter (Exh.7). P.W.1, Noor Muhammad Panhwar, in his testimony supported the contents of the F.I.R. As he deposed that while on 2-3-1993 when he was posted in the International Departure Hall of Jinnah Terminal, Quaid-e-Azam Airport at about 6-15 p.m. The appellant proceeded at the customs clearance counter. Upon suspecting the appellant he inquired from him whether he was carrying any contraband item which was denied by the appellant. Being dissatisfied he called two Mashirs namely Mazhar Abbas and Muhammad Shahbaz and in their presence he examined the appellant's baggage which comprised one blue coloured corolite suitcase. On breaking the upper and other parts of the suitcase polythene bags containing brown coloured powder were obtained. The brown coloured powder when tested was found to contain heroin powder. It has been alleged by P.W.1 that the total weight of the polythene bags were 5 Kgs. And the heroin powder was seized under the Mashirnama (Exh.4-A) which was prepared on the spot in the presence of Mashirs Mazhar Abbas and Shahbaz whereafter the travel documents of the appellant alongwith his passport and air ticket were also seized (vide Mashirnamas Exh.4-B and 4-C). It has further been stated by P.W.1 that the appellant was arrested on the spot and a notice under section 171(1)(8) of the Act, 1969 (Exh.4-D) was served on him. Thereafter, three samples from the heroin powder were prepared while the remaining heroin was sealed and kept in a white cloth bag which was also sealed on the spot. The appellant and the seized property were taken to the Customs House and handed over to I&P Branch. P.W.4 i.e. Javed Akhtar Mughal, the Investigating Officer, submitted an interim challan on 16-3-1993 followed by a final challan on 14-6-1993. In his statement recorded under section 342, Cr.P.C. The appellant pleaded innocence and alleged false implication. He also stated that the suitcase in dispute did not belong to him and was only lying on the customs counter already before he entered the departure hall. 3. The learned trial Judge formulated the following points for determination:-- "(1) Whether five Kgs. Of heroin powder was recovered from the suitcase which was being carried by accused while he was intercepted in the International Departure Hall and was to travel by Gulf
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Airline Flight No. GF-733? (2) What offence, if any, the accused is guilty of? (3) What should the sentence be?" On point No. 1 the learned Judge found the appellant guilty while convicting him convicted and sentenced him as stated above. 4. I heard Mr. Rana M. Shamim learned counsel for the appellant and Mr. R.A. Essani the learned D.A.-G. For the State and also perused the record as well as the cited case-law. 5. The learned counsel for the appellant vehemently urged--- (a) that the impugned judgment is based on mis-appreciation and non-- appreciation of the evidence led by the prosecution; (b) that no independent witness as Mashir of recovery was taken by the prosecution; (c) that there is delay of 3 hours 45 minutes in lodging the F.I.R. For which the prosecution has not offered any plausible explanation; (d) that the trial Court has failed to take into consideration that the time of preparation of Mashirnama is 18-15 hours and the time of registration of F.I.R. Is also 18-15 hours, which clearly suggest that the prosecution story is a fabricated one; (e) that there is no evidence to establish that the appellant was carrying the disputed suitcase; (f) that the learned trial Court did not appreciate the procedure regarding sampling, test, storage etc. Of the seized/confiscated narcotics, which was not done in accordance with the Customs General Order No. 12/86, dated 31st July, 1986 (reported as PTCL 1986 St. 951(ii); (g) that the learned trial Court also totally ignored the material contradictions in the evidence of the prosecution witnesses. 6. On the other hand, the learned D.A.-G. While supporting the impugned verdict of conviction submitted that the Mashirs, though were officials of the Customs, were equally good witnesses and, therefore, there was no reason to disbelieve them particularly when no, enmity or bias was alleged against them. In support of his submission he cited Karim v. Nazir Ahmed 1980 SCMR 791, Muhammad v. State PLD 1981 SC 635, Muhammad Hanif and another v. The State 1979 PCr.LJ 1078, Mir Khan and others v. The State PLD 1968 Kar. 903, Qabool and another v. The State PLD 1976 Kar. 1205, Mushtaq Ahmed v. The State 1995 SCMR 510, Saeed v. The State 1995 PCr.LJ 1203, Arbab A.I v. The State 1995 PCr.LJ 1272 (FSC), A.I Hassan and others v. Mukhtar and others 1983 SCMR 806, Hizbullah v. The State and another PLD 1984 Quetta 1. Regarding contradictions in the statement of witnesses the learned D.A.-G. Has submitted that those are of trivial nature and minor discrepancies or omissions are of no importance which can exist due to lapse of time. In support of his submissions he cited Aurangzeb v. The State 1978 SCMR 255, Roshan and 4 others v. The State PLD 1977 SC 557, Bachal v. The State PLD 1963 (W.P.) Kar. 1062, Mokha v. Zulfiqar and 9 others PLD 1978 SC 10, Sher Muhammad and others v. The State PLD 1959 (W.P.) Lah. 124, Allah Yar v. State PLD 1976 BJ 1, Zakir Khan and others v. The State 1995 SCMR 1793!He has further submitted that the appellant being carrier of narcotics is not entitled to a lenient treatment. He relied upon Nadir Khan and another v. The State 1988 SCMR 1899, Bonifacio A. Burayag v. The State PLD 1991 SC 988, Alam Masood v. The State 1988 SCMR 64, The State through D.A.-G. v. Muhammad Siddique 1996 SCMR 246. He further submitted that section 103, Cr.P.C. Is analogous to section 165 of the Act, 1969 but in the instant case no personal search of the appellant was taken and during search of the baggage, the intoxicants were secured particularly in cases of narcotics a strict compliance of section 103, Cr.P.C. Is not necessary. He cited Muhammad Akbar v. The State 1995 SCMR 693, and Muhammad Jameel v. The State PLD 1996 Lah. 190. Regarding the F.IR. He submitted that in the absence of any enmity the alleged delay in making of the F.I.R. Is not fatal to the prosecution but even otherwise the F.I.R. Is not expected to be a detailed document. It is also not a substantive piece of evidence. It can be used only to contradict its maker. In support of this submission he cited Zar Bahadar v. The State
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1978 SCMR 136, Arbab Shah and 3 others v. The State 1976 PCr.LJ 40, Fazalur Rahman and 2 others v. The State PLD 1971 Lah. 883, Khushi Muhammad v. The State 1983 SCMR 697, Mazharul Haq v. Ishaque Sardar and 15 others PLD 1962 SC 480, Siraj Din v. Kala and another PLD 1964 SC 26, Fateh Muhammad v. State 1974 PCr.LJ Note 84 at page 53; Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977'SC 28 and Nasir Ahmed v. The State 1971 SCMR 398. 7. The principles of law enunciated in the decisions relied upon by the learned D.A.-G. Carry no cavil, however, the same are not applicable to the present facts of the case. It is again a settled proposition of criminal jurisprudence that precedents do not carry the same binding force as would be in civil law. In criminal cases the facts of the case have to be seen in their clear perspective. See Nazar Muhammad PLD 1978 SC 236, Gulab Khan (D.B.) PLD 1971 Kar. 299 and Mushtaque Ahmed v. The State PLD 1973 SC 418, Rabnawaz v. State PLD 1974 SC 87 and Ghulam Muhammad v. Allah Yar PLD 1976 SC 241. 8. The very basis of the entire prosecution's case is the assumption that the suitcase in dispute belonged to the appellant. There can be no doubt that the burden of proof to establish recovery of the suitcase and connect the same with the appellant accused rested entirely upon the prosecution which it had to prove beyond all reasonable doubt. The point that in matters pertaining to Customs the principle of burden of proof is different from other criminal cases not involving Customs and in the former the entire burden is upon the accused is not applicable where the very possession is in dispute. There can tie no presumption or assumption regarding possession which has to be established by the prosecution beyond all reasonable doubt. (See section 187 of the Act, 1969 and Qamar A.I v. The State 1975 PCr.LJ 797). Also in the context of how the principle of burden of proof is to work in Customs cases even where possession is not in dispute I would venture to reproduce an excerpt from a decision authored by me while sitting in a Division Bench i.e. Kamran Industries v. Collector of Customs PLD 1996 Kar. 68, which reads as under:-- 23. The next objection raised by the learned counsel for the respondents is that under section 187 of the Customs Act, the burden of proof was on the petitioner rather than upon the Customs Authorities to categorically disprove the allegations of misdeclaration and under-declaration levelled by the Customs Authorities. In this respect Mr. S. Tariq A.I has contended that the rulings relied upon by the petitioner counsel become inapplicable as the law has itself clearly cast the burden upon the petitioner. In order to appreciate this objection it is pertinent to scrutinize the provisions of section 187 which reads as follows:-- '187. Burden of proof as to lawful authority. Etc --When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit, licence or other document shall lie on him.' It appears to us that section 187 covers two situations which we state as follows: (a) when a person is charged with an offence under the Customs Act, the burden of proof is cast upon him to show that he had the lawful authority to commit that act; (b) when a person is found in possession of any goods the burden of proof is cast upon him to show that he was holding such goods under some lawful authority, permission or licence, etc. Situation (b) is not in issue in the present case, however, we feel that it provides for an eventuality where a person is found to be in possession of certain goods which fall under a prohibited category or which in an unlawful manner find place in the possession or custody of the accused. In such case the burden is upon the accused to show that he falls under some exemption or exception to hold such goods. This type of eventuality as envisaged and stated in situation (b) above is essentially a statement of the general principle of the law of evidence contained in Article 121 of the Qanun-e-Shahadat that whosoever claims to all under a preferential or exempt or
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excepted category must show that he fulfils that condition to fall within that category. This obviously should not be confused with the fectum of possession for which no presumption. Or burden of proof has been spelt out, in view whereof the possession itself has to be proved independently by the prosecution beyond all reasonable doubt. 24. It is situation (a) as stated above in para. 23 which directly in issue in this case i.e. Whether the burden of proof solely lies upon the petitioner to disprove allegations of mis-declaration and mis- description levelled by the Customs Authorities and whether the Customs Authorities are under no obligation to lead evidence and discharge any onus of proof. This part of section 187 of the Customs Act perhaps appears to be contrary to the general principle of the law of evidence contained in Article 117 of the Qanun-e-Shahadat that whosoever alleges existence of a particular fact must prove the same. There is little doubt that a special law or a particular statute can provide for a distinct regime of rules of evidence than contained in general law. In fact the law goes on as far as providing that the laws of evidence can be altered even by mutual consent and contract. See S.M. Anwar Sethi v. South British Insurance Company Ltd., PLD 1975 Karachi 458). However, on a closer scrutiny of the provisions of section 187 and the case-law settled by our Courts on the subject it appears that in such a situation it is only the evidential and tactical burden of proof which is cast upon the accused while the legal burden to bring home the allegations remains with the prosecution. Before we dilate upon the concept of the two types of burdens of proof and explain the terms 'tactical', 'evidential' and 'legal' burdens of proof we shall first discuss the case decided by the High Court of Sindh in Barkat A.I v. The State PLD 1973 Karachi 659. In this case the controversy revolved round section 177-A of the erstwhile Sea Customs Act, 1878 which catered for a similar situation as has arisen in the present case i.e. The same provided the burden of proof upon the accused to disprove the case of the prosecution that his intentions were not to defraud the exchequer or evade any prohibition or restriction under the Act. Writing for Court Tufail A.I Abdul Rehman, CJ was of the opinion that the said presumption of burden of proof could not be drawn until the explanation of the accused was first taken into consideration. According to the learned Judge the 'normal principle' was applicable i.e. That the accused was entitled to a benefit of doubt where he offered a reasonable explanation which was either acceptable or raised a doubt. In such cases the burden then shifted upon the prosecution to establish the case. In this regard the pertinent observations are reproduced hereunder: ' ....Despite section 177-A of the Sea Customs Act if upon the end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted." (at p. 671). 25. Both classical and contemporary treatises on the law of evidence (Cross on 'Evidence' 1967, 3rd Edition, London, Butterworth, 'A Practical Approach to Evidence' by Peter Murphy, 1988, 3rd Edition, London, Blackstons Press Ltd., and 'The Modern Law of Evidence' by Adrian Keane 1985, 1st Edition, Oxford, Professional Books Ltd. Talk in terms of two burdens of proof i.e., the 'legal' or 'persuasive' burden and the 'evidential' or 'tactical' burden. The legal burden is defined as "the burden of proof or the probative burden and the ultimate burden' (see Keane at p. 46). The same has also been defined as 'the burden of persuading the tribunal or fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue'. (See Murphy at p, 78). On the other hand the 'evidential' or 'tactical' burden has been defined as 'the quantum of evidence which would establish a prima facie case'. (See Murphy at p.79). The legal burden is accordingly in our view the ultimate and final burden whereas the evidential burden requires only establishment of a prima facie case. According to the learned Authors in every case there is a distinction between these two burdens. On a general principle both these burdens are cast upon the asserter of a proposition whereas in some cases the incidence of these two types of burdens may not coincide. According to Keane the determination of where the burden falls would
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depend upon substantive law as well as common sense-(See pp.49 and 50). The mode of operation of the rules of evidence would be that the party upon whom the evidential burden is cast shall have to establish through prima facie evidence that he has an arguable case. In such an event it would then be obligatory upon the person bearing the legal burden to bring on record such material which would ultimately bring home his case. In circumstances where both the evidential and legal burdens are cast upon the same party the entire burden of proof shall be on that particular party and the distinction between legal and evidential burdens would not serve a fructuous purpose. However, it is in such-cases where the incidence of the legal and evidential burdens are distinct i.e. The legal burden is placed on one party whereas the evidential burden lies on another, that the party on whom the evidential burden is placed has to satisfy the same by establishing a prima facie case. In such an eventuality the burden would shift to the other party who shall have to bring forth the ultimate evidence to make out a case i.e. He would have to satisfy or discharge the legal burden. The concept of shifting of burdens of proof is not alien to even our jurisprudence. The shifting of burdens of proof have been discussed and approved in Mst. Safia Begum v. Mst. Malkani and another, PLD 1965 Lahore 576, Akber A.I v. Ehsan Elahi PLD 1980 Lahore 145, Government of Pakistan v. Moulvi Ahmed Saeed 1983 CLC 414, Muhammad Sarwar v. Fazal Rehman 1982 CLC 1286 and Sarder Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325. In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has been acknowledged, however, the reason as to why such a legal fiction takes place has not been discussed. We feel that it is due to operation of the principles of incidence of burdens of proof vis-a-vis 'legal' and 'evidential' burdens as discussed above that the process of shifting of burdens become possible. We have already cited the opinion of Adrian Keane and we hold that in order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, the case-law on the subject as also common sense end equity. In this case we are of the view that in the situation in issue i.e. (a) as discussed in para. 23 above, section 187 casts upon the petitioner-accused only the obligation to make out a prima facie case as it is only the evidential burden which is borne upon it. Once the petitioners were to satisfy this evidential burden, the legal burden to bring home the ultimate cases shifted upon the Customs Authorities. The question is now essentially to determine as to whether the petitioner was able to discharge the evidential burden. Evidential burden essentially requires making out a prima facie case which is arguable and at least raises a doubt in the mind of the Court. The very fact that this petition has been admitted to regular hearing confirms that the petitioners had made out a prima facie case in view whereof we hold that it has discharged the evidential burden. In any event the facts and circumstances of the case are such and the explanation offered by the petitioner are of such a quality which at least raises a doubt in favour of the petitioner. The contention of the learned Standing Counsel that no duty was cast upon the Customs Authorities to bring home any evidence in support of its case is incorrect. We are of the view that heavy onus, being the ultimate legal burden, shifted upon the Customs Authorities to come up with independent and cogent evidence against the petitioner which they have failed to discharge. In fact, even in the cases relied upon by Mr. Farogh Naseem i.e. Eastern Rice Syndicate v. C.B.R. PLD 1959 SC (Pak.) 364. The Collector, Central Excise and Land Customs, Chittagong v. Imdad A.I 1969 SCMR 708 and M/s. Latif Bros. v. Deputy Collector Customs, Lahore (1992 SCMR 1083), the Supreme Court has clearly held that the ultimate burden of proof lay upon the Customs Authorities which cannot be said to have been discharged merely on account of weakness in the evidence of the importer. The first two cases i.e. Eastern Rice Syndicate and Imdad A.I were adjudications upon section 39 of the erstwhile Sea Customs Act (which is comparable to the present section 32 of the Customs Act, 1969). In both those cases we cannot hold that the Courts were oblivious to the provisions of section 193-G of the
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Sea Customs Act which is almost identically worded to the present section 187 of the Customs Act. The said section 193-G of the Sea Customs Act, 1878, is being reproduced for convenience: 193-G. Burden of proof in certain cases.--Where any person is tried for an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him.' Even in the recent decision of Latif Brothers which touched upon section 32 of the Customs Act, 1969, the Court followed the earlier decision of Eastern Rice Syndicate. For that case also we do not feel that the Honourable Supreme Court closed its eyes to the provisions of section 187 of the Customs Act. We accordingly hold that the…
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