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Petitioner: THE STATE VS Respondent: M. ASHRAF
Court Name: Lahore High Court Judge(s): Saad Saood Jan Title: THE STATE vs M. ASHRAF Case No.:Criminal Appeal No. 326/C of 1984 Criminal Appeal No. 654 of 1982
JUDGMENT
Reported As: 1986 P Cr. L J 136 Result: Appeal accepted Judgment JUDGMENT The respondent, Muhammad Ashraf, was tried by the Special Judge, Customs, Lahore, for an offence under section 156 (1)(8), Customs Act, on the allegation that he was caught in the act of smuggling a very large amount of Pakistani and foreign money out of Pakistan. By his judgment, dated 28-4-1984 the learned Special Judge acquitted him. The Federal Government has preferred this appeal to challenge the order of acquittal. 2. Before I proceed further it seems appropriate that I should take notice of a preliminary objection raised on behalf of the respondent to the effect that there is no proper appeal before me inasmuch as the gentleman who has preferred it was not competent to do so. It may be A mentioned that this appeal has been presented by Mr. Muhammad Nawaz Abbasi, Advocate, on behalf of the Federal Government. The contention for the respondent is that Mr. Abbasi was not authorised to prefer this appeal as this could only be done by a law officer appointed under the Central Law Officers Ordinance, 1970, and that Mr. Abbasi was not such a law officer. To examine the objection raised by the respondent it will be of advantage to refer to certain provisions of the Customs Act. Section 185 and section 185-B establish the Court of a Special Judge and confer upon him exclusive jurisdiction to try cases under the Act. Section 185-F provides for an appeal from an order of decision made by the Special Judge. Subsection (1) of this section reads as follows:- "Any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898, may, subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and 'in hearing and disposing
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of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code." Mr. Abbasi has placed on record a photostat copy of a letter received by him from the Central Board of Revenue, directing him to file an appeal in this case. The letter incorporates the opinion as well as the decision of the Law Division of the Federal Government. The relevant part of the note of the Law Division reads as follows:- "We agree with the view of the C.B.R. That the judgment of the Special Judge should be impugned before the Appellate Tribunal ......... Mr. Muhammad Nawaz Abbasi, Advocate, 9-The Mall, Rawalpindi is not on our Panel but he is a Special Prosecutor for customs cases and is nominated for filing the appeal." It may be mentioned that under the Rules of Business of the Federal Government the Law Division looks after legal proceedings and litigation concerning the Federal Government. The Law Division was, therefore, competent to nominate Mr. Abbasi to file an appeal on behalf of the Federal Government. It is also to be noticed that unlike the Pakistan Criminal Law Amendment Act, 1958, Section 185-F does not specify the person through whom alone the Federal Government can exercise its right of appeal. Thus it can nominate any member of the Bar for this purpose. For this reason the two unreported cases cited by the learned counsel for the respondent are distinguishable. The unreported cases are State v. Zar Badshah Criminal Appeal No. 654 of 1982 and State v. Munawar-ud-Din, etc. Criminal Appeal No. 473 of 1978. In these cases appeals were filed on behalf of the Federal Government by a person other than a Public Prosecutor whereas under section 10(2) of the Pakistan Criminal Law Amendment Act, 1958, the right of the appeal could be exercised by the Government only through a Public Prosecutor. On this ground alone a learned Single Judge dismissed the appeals. However, that may be, as section 185-F (ibid), does not create any such restriction the appeal against the respondent could be filed by any Advocate appointed by the Federal Government for the purpose. 3. In support of his objection the learned counsel for the respondent drew my attention also to subsection (2) of section 185-G which is in the following terms:- "A Law Officer appointed under the Central Law Officer Ordinance, 1970, shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government." He contended that by operation of this subsection only a law officer J mentioned therein could present an appeal on behalf of the Federal Government. I find it difficult to subscribe to this contention. In my opinion the subsection merely enables a law officer appointed under the Central Law Officer Ordinance to conduct proceedings before the Special Appellate Court by virtue of his office but it does not create any exclusive right in this regard in their favour. As I read the subsection I can find nothing in it which would preclude the 'Federal Government from appointing counsel other than a law officer for conducting; proceedings on its behalf before the said Court. 4. For the reasons stated above I would repel the objection with regard to the competency of the appeal before me. 5. Prior to January, 1985, there was only one Special Appellate Court for the whole of the Province. It was presided over by a Single Judge sitting at the Principal Seat of this Court. By a notification, dated 30-1-1985 the Federal Government constituted the Senior Judges at Rawalpindi, Multan and Bahawalpur, also as Special Appellate Courts in respect of areas falling in the respective jurisdiction of these Benches and correspondingly curtailed the jurisdiction of the Special Appellate Court at the Principal Seat. In the appeal before me the respondent was allegedly caught at the Islamabad airport and the case was registered against him at Police Station Civil Lines, Rawalpindi. Ordinarily, therefore, this appeal should have been heard at the Rawalpindi Bench but then I am informed by learned counsel for the respondent that air his request venue of the trial was shifted to
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Lahore. It was in Lahore that the judgment was announced and the record of the case was maintained. I should, therefore, think that the Special Appellate Court at Lahore has the jurisdiction to hear the appeal. In support of the view which I take I would refer to Valia Ambu Poduval v. Emperor ILRI 30 Mad. 136 which was followed by the Allahabad High Court in Shori Lal v State AIR 1952 All. 193 and approved by the Punjab Chief Court in Hira Lal v . Emperor 44 I C 326. 6. The material facts it this appeal are mostly admitted and the main question for consideration is whether or not the respondent was smuggling Pakistani and foreign money out of Pakistan. To examine this question it seems necessary to set out the facts in some detail. The respondent is an original resident of Chichawatni in Sahiwal District but for the last 21 years he has engaged himself in business in England. He has taken British nationality and also holds a British passport. He has been frequently visiting Pakistan. For the last time before the present incident he came to Pakistan on 11-12-1981. The present incident occurred on the evening of 17-12-1981 when he arrived at the Islamabad Airport in order to catch a flight for Dubai. 7. It was alleged by the prosecution that the customs authorities had already received information that an attempt was being made to smuggle a large amount of Pakistani currency out of the country. To foil the attempt two raiding parties were formed. At about 8-30 p.m., the respondent arrived at the P.I.A. Counter. He had a suit-case and a brief-case with him. After briefing by the P.I.A. Staff at the counter his suit-case was tagged. He was then approached by Mr. Iftikhar Ahmad lqbal, Deputy Superintendent, Customs, Currency Cell, who inquired from him if he had any objectionable articles in his possession. When he replied in the negative he was asked to open his suit-case. The suit-case ` was secured by a combination-cum-key lock. The respondent took out the keys from his pocket and after using the combination number he applied a key to the lock. The suit-case contained Pakistani currency notes of the value of Rs.9,00,000 wrapped in Khaki envelopes together with some clothes. On his personal search a further sum of Rs.200 in Pakistani currency notes and 505 Dhirhams of U.A.E. Were found. The brief-case was got opened but it did not contain any contraband article. Consequent upon the recovery of such a large amount of Pakistani and foreign money, a report was prepared by Mr. Iftikhar Ahmad Iqbal (P.W.1). On the basis of this report a case under section 156 (1)(8) of the Customs Act was got registered against the respondent at Police Station Civil Lines on the same night at 12-45 a.m. 8. The respondent pleaded not guilty to the charge of smuggling at the trial. He did not dispute the recovery of the Pakistani and foreign money from his possession but had his own story to narrate. He stated that he and his brother were planning to instal a cold storage and an ice factory at Chichawatni. For this purpose they collected Rs.9,00,000 partly by raising loans from a Bank and some relatives and partly by selling articles which he had from time to time brought to Pakistan. The construction work had already begun. On 16-12-1981 he came to Lahore with his cousin, Mehmood Ahmad (D.W.4) with the money with the object of going to Karachi for buying machinery for the cold storage and ice factory. After making the purchase he was to proceed to London whereas his cousin was to return back. He had a case pending in Dubai. He had given the telephone number of his relative, Muhammad Jamil (D.W.1) who lived in Lahore, to his lawyer at Dubai for contacting him whenever the case came up for hearing. Thus, when he arrived at Lahore on 16-12-1981 Muhammad Jamil (D.W.1) told him that he had received a message from his lawyer at Dubai that the case had been fixed for hearing on 20-12-1981. On receipt of this information he changed his programme and decided to immediately proceed to Dubai. There was no flight available from Lahore or Karachi for Dubai during the next two days, but one was due to take of from Islamabad on the following day. Accordingly, on 17-12-1982 he and his cousin went to Islamabad by 6.00 p.m. Flight and reached there at 7 p.m. His reservation for Dubai was not a confirmed one but he had managed to get a ticket on chance. As to what happened at the airport he stated:-
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"------...As I was upset and in hurry I took suit-case Exh. P.2 inside the departure hall with me. I was told to wait by the P.I.A. Staff at the checking-counter as my ticket was on chance. I put my suit- case and brief-case near the counter of the P.I.A. And left my ticket with the P.I.A. Staff. In my presence people were being checked in. I later on was intimated at a late stage by the P.I.A. Staff that a seat on chance to me is available, so I went out to tell my cousin Mehmood Ahmad that I am leaving for Dubai where Mehmood Ahmad told me that I had taken wrong suit-case inside as he had checked suit-case available with me, both the suit-cases being of the same colour and make. I rushed inside the departure lounge and requested the P.I.A. Counter staff to hand me over my suit-case as I intended to change the same having brought in by mistake. One Muhammad Yousaf from Narcotics Board asked me that first I should show him after opening the suit-case Exh. P. 2 whether I was not carrying any narcotics and only then he will allow me to take the suit-case from hall for its exchange. I had explained to him that the keys of the suit-case were with his cousin Mehmood who is outside. The said Muhammad Yousaf after searching me taking the suit-case Exh. P. 2, keys with me, my passport and other documents including the P.I.A. Ticket, etc. From the P.I.A. Staff he allowed me after thorough search to go out from the hall alongwith a constable. I went out and brought the keys from my cousin Mehmood upon which Muhammad Yousaf P.W. Opened the suit-case, saw the currency for which I had explained him that I was carrying it for Karachi for bona fide purpose of purchase of machinery, etc. Muhammad Yousaf P.W. Went and called upon the Customs officials, where Daud Awan, Customs Inspector turned who after listening my explanation and looking the currency went and brought few other officials who took me to a room of A.C. Customs situated in another building there after due deliberation and consultation they involved me in this false case. Islamabad Airport was not a duly notified airport." With regard to the possession of U.A.E. Dirhams he stated:- "The aforesaid U.A.E. Dirhams were mine . . . . . . . . . .I am a British National and I arrived in Pakistan on 21-11-1981. I, twenty-six days prior to the occurrence as per law, can keep the foreign currency i.e. This kind of small amount as the total value of 500 U.A.E. Dirhams comes to about Rs.1,800. I was legally entitled to keep the same." To substantiate his version he examined five witnesses. 9. In support of its case at the trial the prosecution examined Kh. Iftikhar Ahmad lqbal (P.W.1), Mian Noor-ul-Ghani (P.W.2), Ch. Nisar Ahmad (P.W.3), Muhammad Yousaf (P.W.4), Raja Abbas Ali (P.W.5), Ashiq Hussain Bokhari (P.W.6), Muhammad Akhtar (P.W.8) and Daud Awan (P.W.9). Of these, Ch. Nisar Ahmad (P.W.3) and Muhammad Yousaf (P.W.4) were declared hostile. Inspector Abdul Razzaq, Ata Muhammad Akhtar and Sepoy Ishaq, were also mentioned in the F.I.R. To have been present on the occasion but they were not examined. The case was investigated by Inspector Taqi Mirza (P.W.10) and the F.I.R. Was recorded by A.S.I. Muhammad Shah (P.W.7). 10. As already indicated the factum of recovery of a very large sum of Pakistani currency from a suit-case which the respondent had brought in at the P.I.A. Counter just prior to catching the flight for Dubai is not disputed by the parties and the only question for consideration is whether the respondent was attempting to smuggle the said currency notes out of Pakistan or was it a case of innocent switching over of suit-cases resulting from respondent's anxiety to reach Dubai as early as possible to prosecute his law suit there. The star witness on behalf of the prosecution was Kh. Iftikhar Ahmad Iqbal (P.W.1) who was at the relevant time posted as Deputy Superintendent Customs (Currency Cell) at the Islamabad Airport. He stated:- "At about 8-30 p.m. Muhammad Ashraf accused now present in the Court came alongwith his brief-case Exh. P.1 and suit-case Exh. P. 2 and produced the same for briefing. After briefing his luggage was tagged which bears No. P.I.A. 72-82-61, which is Exh. P.A. After the completion of the briefing formalities I asked Muhammad Ashraf accused as to whether he had any objectionable articles in the brief-case or in the suit-case at which he replied in the negative. Then he was asked
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to open his suit-case and brief-case. His suit-case Exh. P. 2 was opened by combination No. 000 and with the help of the keys which were handed over by the accused. The keys were produced by the accused from his pocket. From the suit-case Pakistani currency of the value of Rs.9,00,000 wrapped in Khaki envelops and pasted with the bottom or to It appears from his statement:- (i)that just before the recovery of the money the respondent produced the suit-case in question at the P.I.A. Counter as part of his luggage; (ii)the P.I.A. Accepted the suit-case for putting it on the air-craft and for that purpose placed a tag on it; (i.e)the suit-case was secured with a combination-cum-key lock; (iv)the respondent knew the combination number of the lock; and (v)the respondent carried the keys of the lock oh his person. The version of this witness was supported in its entirety by Raja Abbas Ali (P.W. 5), Superintendent of Customs and Ashiq Hussain Bokhari (P.W. 6) a Custom Inspector. Mr. Muhammad Akhtar (P.W. 8) who was, an Assistant Collector also made a similar statement although in his cross-examination he was unable to recall if the respondent had gone out of the departure lounge to bring the keys of the suit-case in question. Although Mian Noor-ul-Ghani (P.W. 2), a Security Supervisor in the P.I.A.,did not appear to remember the details of the incident his deposition was on the same line as the case of the prosecution. Both he and Daud Awan (P.W. 9), a Deputy Superintendent of Customs, stated that the respondent's suit-case was opened by Muhammad Yousaf (P.W. 4), although the keys were provided by the respondent. 11. As already mentioned two of the witnesses produced by the prosecution were declared hostile. They were Ch. Nisar Ahmad (P.W. 3) and Muhammad Yousaf (P.W. 4). One of them, namely, Ch. Nisar Ahmad (P.W. 3), was Assistant Officer in the Islamabad Airport Security Force and the other, namely, Muhammad Yousaf (P.W. 4) was a field Investigating Officer in the Pakistan Narcotics Board. They gave their own version of the incident. They stated that the respondent was held up by one of them, namely, Muhammad Yousaf (P.W. 4) and was asked to open the attache/suit-case. According to Ch. Nisar Ahmad (P.W. 3) the respondent at first denied that the suit-case belonged to him. However on the insistence of Muhammad Yousaf (P.W. 4) the respondent produced a key from his possession but it did not fit in the lock. The respondent, then, according to Muhammad Yousaf (P.W. 4), stated that the suit-case had been changed with that of his cousin who was standing outside the hall. Both witnesses deposed that the respondent then went outside the hall to bring the proper key. The lock was opened with the second key. They also stated that at the time of the recovery of the currency notes no employee of the customs department was present. 12. As noticed earlier the respondent examined five witnesses in his defence. Of these the testimony of Niaz Hussain (D.W. 5), was only to the effect that the respondent held an open ticket on the Syrian Arab Airlines on Karachi Demascus-London route. Muhammad Aslam (D.W. 3) is the brother of the respondent. He is a Halvai at Chichawatni. He deposed that he and the respondent had planned to set up a cold storage and an ice factory and for this purpose they had, after obtaining loans from different sources, started the construction work. They had earmarked Rs.9,00,000 for the purpose of buying machinery, etc. Abdul Shakoor (D.W. 2) is the brother-in-law of the respondent. He stated that he had advanced a loan of Rs.2,00,000 to the respondent for the installation of a cold storage at Chichawatni. 13. Muhammad Jamil (D.W. 1) is also a relative of the respondent. He stated that on 16-12-1981 at about 2-00 p.m., he received a message from the respondent's lawyer at Dubai that the respondent's case was to come up for hearing on 20-12-1981 and that the latter's presence was required on the occasion. On the same day at 4-00 p.m., the respondent came to his house and he passed on the message of his lawyer to him. There was no flight available from Lahore for Dubai on
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17-12-1981. The respondent decided to go to Rawalpindi for catching a plane for Dubai. On 17-12-1981 he drove the respondent and his cousin Mehmood Ahmad (D.W. 4) to the Lahore Airport. 14. Mehmood Ahmad (D.W. 4) is the main defence witness. He is a cousin of the respondent. He stated that the respondent was constructing a cold storage and an ice factory at Chichawatni and had to purchase machinery for the same. On 16-12-1981 he alongwith the respondent came to Lahore for the purpose of making inquiries about the machinery. The respondent was also to go to Karachi for the same purpose. The respondent brought-Rs.9,00,000 with him for buying the machinery. At Lahore Muhammad Jamil (D.W. 1) informed the respondent that he was required at Dubai in a civil case. The respondent then purchased a ticket from the P.I.A. He and the respondent stayed for the night in the house of Muhammad Jamil (D.W. 1) as the respondent fell ill. On the following day they went to Islamabad by air. As to what happened at the Islamabad Airport he stated:- "Ashraf asked me to stand outside, he left one attache-case with me and the other he took inside to take a chance on Dubai flight. I tried to open the attache-case which was with me as I felt cold. The attche-case could not be opened as the same had been changed, and Ashraf accused in hurry by mistake had taken the other attache-case inside the departure lounge. I tried to convey it in. The departure lounge to Ashraf but I was forbidden by gate constable. After a short while Ashraf told me from a distance that he has got seat for Dubai. I told him that suit-case had been changed at which Ashraf rushed back and after some time he came with a constable and asked me to deliver him the keys of the suit-case which I accordingly did. I kept standing outside but after a considerable time I came to know that Ashraf had been involved in a false currency case. I was not allowed to go inside by the guardman. Then I went to the arrival side from another door where I met the Customs officials and told them that Ashraf is innocent." It may be mentioned that this witness is a resident of Faisalabad where he runs a shop. He did not care to state the circumstances in which he had gone to Chichawatni on 16-12-1981. 15. While recording the order of acquittal the learned Special Judge rightly observed that where there was a possibility of the defence version being true the accused was entitled to the benefit of doubt. In coming to the conclusion that this was the case here he expressed the view that the defence version found support from the evidence led by the prosecution itself. In this regard he also took notice of the conduct of the respondent in not avoiding the flight when he saw that the passangers were being searched. He found that the prosecution had failed to produce important witnesses to substantiate its version. In this context he particularly referred to the omission of the prosecution to examine Mr. Ata Muhammad Akhtar and Sepoy Muhammad Ishaq. Mr. Akhtar was not only the airport manager but also exercised magisterial powers. According to the F.I.R. Mr. Akhtar was also present at the time of the recovery of money from the respondent's possession. Seopy Muhammad Ishaq had according to one version (not proffered by the prosecution) accompanied the respondent when the latter went out to bring the key from his cousin. The learned Judge castigated the prosecution for producing only a copy and not the original F.I.R. He drew an inference adverse to the prosecution on the latter's inability to produce the original key of the suit-case which was taken into possession at the time of the incident. As regards the quality of evidence led by the prosecution the learned Judge observed that its witnesses could be divided into two categories, namely, employees of the customs department and employees serving in other department. The testimony of employees of the customs department was suspect inasmuch as they stood to gain monetarily by way of awards in the event the prosecution succeeded in securing the respondent's conviction. He observed that there were contradictions and improvements in the statements of P.W. 1, P.W. 5, P.W. 6 and P.W. 9. 16. An appeal from an order of acquittal lies both in respect of finding of facts and law. In our Courts an accused is presumed to be innocent unless he is proved to be guilty. The presumption of
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innocence gets further strengthened when the trial Court after a fair appreciation of the evidence led before it finds him not guilty. An Appellate Court would not interfere with the decision of the trial Court merely because on the same evidence another view unfavourable to the accused can be formed, for, apart from other considerations, the trial Court has the advantage of seeing the witnesses when they appear to give evidence. But, then, as observed by the Supreme Court, if the reasons given by the trial Court in support of its finding are speculative or of artificial nature or the findings recorded by it are based on no evidence or misinterpretation of evidence or the conclusions drawn by it about the guilt or innocence of the accused persons are perverse or foolish resulting in miscarriage of justice the Court of Appeal will in such a case re-examine the evidence and draw its own conclusions from it. See Ghulam Muhammad v. Muhammad Sharif PLD 1969 SC 398. In Sheo Swarup and others v. King Emperor AIR 1934 P C 227 the Judicial Committee of the Privy Council observed:- "Sections 417/418 and 423 of the Code…
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