1998- P Cr.

L J 1680

[Shariat Court (AJ&K)]

Before Khawaja Muhammad Saeed, C.J and Sardar Muhammad Nawaz Khan, J

ZATOON BIBI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.61 and 63 of 1997, decided on 3rd April, 1998.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 3---Competency of witness to testify---Child witness---Law requires the

intelligence of a child witness to testify in the circumstances of the case and not the factor
of his or her age.---(Witness].

Qadeer Hussain.v. The State 1995-PCr.LJ 803 ref.

(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---
----S. 5---Appreciation of evidence---Trial Court before recording the evidence of the
eye-witness (child) had duly tested her intelligence and capability to testify--Said child
witness had categorically implicated her mother and co accused in the murder of her
father and even the lengthy cross-examination could not discredit her
testimony---Relations between both the accused were also revealed in the statement of
the child witness which was corroborated by the post-mortem report and the
medico-legal report---Crime empties recovered from the place of occurrence were
found wedded with the rifle used in the incident--Extra-judicial confessions made by
accused before a respectable person had corroborated the prosecution story---Illicit
relations between the accused were also established by prosecution witnesses---Presence
of male accused in the city on the night of occurrence was proved by independent
evidence---Conviction and sentence of accused were upheld in circumstances.

Qadeer Hussain v. The State 1995 PCr.LJ 803 ref.

Sardar Rafique Mahmood Khan for Appellant (in Criminal Appeal No.61 of 1997).

Syed Hazoor Imam Kazmi for Appellant (in Criminal.1997)

Nazir Ahmed Wani for the Complainant.

Abdur Rashid Karhani, Asstt. A.-G. for the State.

ORDER

SARDAR MUHAMMAD NAWAZ KHAN, J.--- The above titled appeals arise out of
judgment and order of Additional District Criminal Court, Muzaffarabad, dated 4-9-1997
whereby the appellants were awarded 14 years' R.I. by the said Court.

2. The facts of the case are that a F.I.R. was lodged at Police Station Muzaffarabad by one
Sain Muhammad (complainant) wherein it was alleged that his real brother named
Shahzaman was murdered by someone while he (deceased) was sleeping at his residence
with his family members. The complainant stated in the F.I.R. that on receiving this
information, reached the House of the deceased where he found the dead body of his
brother Shahzaman soaked in blood. On inquiry it was told to him by his sister-in-law
(brother's wife) Mst. Zatoon Bibi that some unidentified persons entered into the house
by breaking the bolt of the door and assassinated her husband Shahzaman while they
were sleeping in their bedroom alongwith two minor daughters. This report was lodged at
police station on 11-3-1988. The concerned police authorities on receiving this report,
registered a case under section 5 of Islamic Penal Laws Enforcement Act, 1974 read with
section 302, A.P.C. The convicts appellants were arrested during the investigation and
after completion of investigation, they were sent up before the District Criminal Court,
Muzaffarabad to face the trial. Subsequently the case was transferred to the Additional
District Criminal Court, Muzaffarabad through an order of Shariat Court for hearing and
disposal.

3. The appellants were examined under section 242, Cr.P.C. on 4-9-1988, wherein they
denied the allegations levelled against them and prosecution was directed to produce
evidence in support of the prosecution story. The prosecution produced as many as 24 P.
Ws. After conclusion of trial, the Court below found the appellants guilty of offences for
which they were charged and awarded them with the sentence of 14 years' R.I. vide its
order, dated 4-9-1997. It is the aforesaid order, the legality and validity of which has
now been challenged through the instant appeals.

4. The learned counsel appearing on behalf of both the appellants while challenging
the judgment and order of the trial Court submitted that the said Court fell in error while
delivering the impugned judgment. The case against the appellants was not proved
beyond reasonable doubt as the prosecution story was full of material contradictions and
discrepancies, the learned counsel argued. They further maintained that the appellants
were to be acquitted by giving them the benefit of doubt. It -was also argued that the
motive behind the murder was also not proved and the version given by Mst. Zahida Bibi
(minor daughter of the deceased) was not trustworthy as she was minor at the time of
commission of offence and furthermore, her statement stood uncorroborated by the other
evidence on record. As per estimation of learned defence counsel, the very fact that
different persons including real brother of the deceased named Suleman were also
arrested and their release during the investigation cast a serious doubt upon the
prosecution story. The learned counsel contended that keeping in view the overall
circumstances of the case it was wrong to convict the appellants. It was also the argument
of defence that the recovery of rifle (the weapon of, offence) was also doubtful and it was
another factor to make the story a doubtful.
5. The learned Assistant Advocate-General and the counsel for the complainant while
supporting the impugned judgment contended that the prosecution story was proved
beyond any doubt and the Court below committed no illegality while delivering the
judgment under appeal.

6. The case of the prosecution is that Mr. Abdul Hamid who is son of real sister of the
deceased developed illicit relations with the wife of the deceased and this very fact came
into the knowledge of Mr. Shahzaman (deceased) and other inhabitants of the vicinity
named Lumianpattian. According to prosecution, different "Jirgas" were held in this
connection and Abdul Hamid (appellant) was asked not to visit the house of deceased
Shahzaman. The deceased obstructed him (Hamid) to visit his home and due to reported
illicit relations between Mst Zatoon Bibi (wife of deceased) and Abdul Hamid, the
relations between spouses also became strained. With this background, both the
appellants joined hands to get rid of Shahzaman (deceased). Mr. Abdul Hamid was
serving in the Army in those days and on 3rd of March, 1988 he came from his Unit, met
Mst. Zatoon Bibi and after having prepared a plan to murder Shahzaman went back to
join his duty in his Unit. He obtained a leave for two days i.e. for 10/11th March, 1988,
came to the vicinity known as Lumianpattian where Shahzaman was living with Mst.
Zatoon Bibi arid his two minor daughters. The appellant Abdul Hamid on 10th of March,
1989 secretly entered into the house of deceased and the fact of his entry in the house was
known to the appellant Mst. Zatoon Bibi. At midnight, Abdul Hamid with the connivance
of Mst. Zatoon Bibi entered into the bedroom of deceased. According to the story put
forward by prosecution, the deceased and his two minor daughters were sleeping in the
said bedroom whit; appellant Mst. Zatoon Bibi was also present there. The appellant
Abdul Hamid caught hold of Shahzaman deceased and Mst. Zatoon Bibi fired by a .12
bore rifle twice at her husband Shahzaman Mst. Zahida Bibi, a minor daughter of
Shahzaman rouse from sleep on account of echo caused by first fire made by Mst. Zatoon
Bibi and the second fire was witnessed by Mst. Zahida Bibi. The second fire which was
made in the presence of Mst. Zahida Bibi also hit the person of Shahzaman deceased. The
deceased on account of fire-arm injuries expired on spot. The convict appellants after
commission of murder went outside the house and made a plan to side track the
investigation. Mst. Zatoon Bibi came back inside the house, took a Chhuri and inflicted
injuries on the face of the deceased. Thereafter, she torn her clothes she was wearing at
the time of incident and thrown out one brief case and two attache cases out of the house.
She raised hue and cry by saying that some dacoits had murdered her husband and had
taken away some house-holdings. She went to the house of his neighboured Muhammad
Asghar and narrated the same story to him. On this, Muhammad Asgar came alongwith
her to the house of the deceased where he found the dead body of Shahzaman soaked in
blood. Muhammad Asgar (P.W.) also found some empties of cartridges lying near the
dead body. On queries made by Muhammad Asgar she told him that at midnight she
alongwith her husband and daughters were sleeping, some body knocked at the door and
her husband went outside the-house but found none outside their house. Her husband
came back and after a short while some unidentified person entered the house by
breaking bolt of the door. A few of them caught hold of her and other murderer her
husband. The dacoit who caught hold of her torn her clothes also during scuffling and
took a brief case and two attache-cases out of the house. According to prosecution, this
all was done to conceal the actual incident and thus she attempted to side track the
investigation. On the other hand, Abdul Hamid who also received an injury on the left
ankle during the incident went back to his Unit and made a false excuse to the military
authorities by pretending that he was injured at Thatta (Sindh) while he was on leave. He
remained in the Hospital on account of this injury. In this way according to prosecution.
both the convict appellants dodged the police concerned and after a length investigation
they were taken into custody.

7. During investigation, the police recorded the statements of P.Ws. took into custody the
two cartridge empties, crime lead bullets wads of gutta and blood-stained clay from the
place of occurrence. The .12 bore shot gun (weapon of offence) and Chhuri were also
recovered at the instance of appellant Mst. Zatoon Bibi. Post-mortem report of the
deceased and a medico-legal report on reference made by the police were also obtained.
The reports of Chemical Examiner and Forensic Expert were also filed with the challan.
After the arrest of appellant Abdul Hamid his blood-stained shirt (Qameez), Shalwar
(stitched at the left leg o; trousers) were also taken into possession at she instance of
appellant. The police also got the appellant Abdul Hamid medically examined

F t and a report in this connection was also placed on record. The leave certificate and
injury report of' Abdul Hamid were obtained from Military Authorities and certified
copies of documents are also placed on the file by Investigating Agency. Besides this, the
documents showing the correspondence between police and military officials for handing
over the culprit (Abdul Hamid) to police for investigation is also a part of the file.

8. Now let us see whether in the light of the evidence collected and produced before the
trial Court, the convict appellants are connected with the commission of crime or not. To
prove the appellants guilty of offence alleged against them the prosecution was under
burden to prove:--

(a) The illicit relations between the appellants,

(b) The presence of Abdul Hamid at Muzaffarabad on 10th of March, 1988 and his
participation in the said murder,
(c) The participation of Mst. Zatoon in assassination of her husband Shahzmn with
the connivance of Abdul Hamid.

9. The star witness produced by the prosecution is Mst. Zahida Bibi, the minor
daughter of the deceased and Mst. Zatoon Bibi.

10. The learned counsel for the appellants raised an objection that as the said witness was
minor at the time of recording of her statement in the Court, it was matter of care and
caution for the Court while placing reliance on her statement. According to the learned
counsel the trial Court did not apply its mind to this particular aspect of the case. We
think the trial Court has rightly believed the testimony of the said witness. It is true that
Article 3 of Qanun-e-Shahadat Act (10 of 1994) is a rule of caution. The question which
a Court has to decide is whether a child witness appearing in the witness-box is
intelligent enough to understand as to what evidence he or she is giving, and to be able to
understand the questions and to give rational answers. What the law requires is l not
factor of age but the intelligence of a particular child witness in the circumstances of the
case. This view finds support from a judgment of Honourable Supreme Court of Azad
Jammu and Kashmir in a case titled Qadeer Hussain v. The State 1995 PCr.LJ 803-809.
The relevant portion of the judgment is as under:--

"Article 3 is a rule of caution. The question in each case which a Court has to decide is
whether a particular child who has appeared in the witness-box is intelligent enough to
be able to understand as to what evidence he or she is giving and to be able to understand
the questions and to be able to give rational answers. A child of tender years is not by
reason of his youth, as a matter of law, absolutely disqualified as a witness. There is no
precise age which determines the question of competency. This depends upon the
capacity and intelligence of the child, his appreciation of the difference between
falsehood and truth, as well as his duty to tell the latter."

In the instant case, the Trial Court initially but some questions in order to ascertain the
quantum of intelligence of the said witness. After posing the necessary questions she was
declared as fully competent to understand the questions and their rational answers. It
clearly means that the Trial Court was aware of the requirement while recording the
statement of a minor witness. The said witness categorically implicated her mother Mst.
Zatoon and Abdul Hamid in the murder of her father. She while making statement in the
trial Court deposed that her mother Mst. Zatoon after killing her father threatened her not
to disclose the fact to any body otherwise she had to meet the same fate. According to her
statement which was made on oath in the trial Court, her father was murdered by both the
appellants in her presence. She also stated in the Court that initially she could not disclose
the actual incident on account of influence of her mother but when her mother was
arrested, she disclosed the fact of her father's murder. As per her evidence, the deceased
was inflicted fire-arm injuries before his death and stab wounds after his death by her
mother. She also stated before the Court that Abdul Hamid was identified by her and he
caught hold of her father while her mother was firing at him in a close contact. It was also
her statement that at the first stage of investigation she nominated her uncle's as culprits
at the instance of her mother. This witness is a real daughter of Mst. Zatoon Bibi and
despite lengthy cross-exanimation nothing could be brought out to discredit her
testimony. Her statement also reveals the fact of relations between both the appellants.
The post-mortem report and another medico-legal report on record corroborates the
version given by the said witness. The cause of death as shown by the post-mortem
report is due to fire-arm injuries. The other medico-legal report given in answer to a
reference made by the police, shows that some of injuries on the face of the deceased
were inflicted post-mortem. The very facts is also a corroborative piece of evidence.

11. The police during investigation took two licences of .12 bore rifle No.6046. The
entries of licence shows that originally this rifle was owned by Sain Muhammad (real
brother of the deceased) and subsequently it was transferred to Shahzaman deceased. The
report of Arms Expert shows that the crime empties recovered from the place of
occurrence were fired from the same rifle. It means that the rifle of Shahzaman deceased
was used during the incident. It is true that the rifle was not recovered at the pointation of
the appellant Mst. Zatoon Bibi but nevertheless the fact remains that it was the weapon of
offence as per Arms Expert report and the evidence of the P.W. Mst. Zahida Bibi and Mst.
Zareena wife of Gulzaman. According to statement of Mst. Zahida Bibi the rifle used in
the murder of her father was initially owned by her uncle Sain Muhammad and
subsequently it remained in the house of the deceased and it was seen by her prior to the
assassination of her father. Another witness who arrived at the place of occurrence
immediately after occurrence is Mst. Zareena wife of Gulzaman. The statement of this
witness shows that the rifle and crime empties etc. lying near the dead body were seen by
her. It is also clear from the statement of Mst. Zahida Bibi and Major Abdul Hamid that
the police took the rifle in their custody the very next day after reaching the place of
occurrence. The crime empties crime lead bullets and wads of Gutta were taken into
custody by police immediately after reaching the spot. These articles were sealed in
parcels in the presence of witnesses and were sent to Arms Expert. The bloodstained clay,
Shalwar of the deceased and shirt of accused Abdul Hamid were taken into possession by
the police. These articles were sealed in parcels in the presence of witnesses and were
sent to Chemical Examiner. According to the report of Chemical Examiner the above
referred articles were found to be stained with human blood. The Arms Expert Report
reveals that crime empties were fired from the rifle bearing No.6046 owned by the
deceased which was taken into custody by the police and was sent to the Arms Expert for
opinion. The medical report about the injuries on the left ankle of the appellant Hamid
reveals that he received this injury for about 3 months ago on account of which a scar is
visible on left ankle of the appellant. The Shalwar of the accused Hamid which, was
taken into custody by the police after his arrest shows the stitching marks on the left leg
of trousers. The extra-judicial confession made by the appellants before a respectable
person Major retired Abdul Hamid also corroborates the prosecution story. The testimony
of Major (retired) Abdul Hamid cannot be discredited as there appears no reason to
disbelieve him. This witness was fully cross-examined but nothing came out so as to
shake his credibility. The fact of illicit relation between the appellants is also established
by the evidence of parents of the deceased, the brothers and other inhabitants of
Lumianpattian who appeared as prosecution witnesses in the Court. The presence of
Abdul Hamid at Muzaffarabad is also established through the evidence of P.Ws. Pervaiz
and Ali Zaman whose testimony cannot be disbelieved as there appears no rivalry or
enmity whatsoever between these witnesses and the convict appellants. Moreover, there
is no relationship in between the deceased and the witnesses. The certified copies of leave
certificate and injury report of Abdul Hamid placed on record also support the
prosecution version as the murder took place at the mid night of 10-3-1988 when he was
on leave from his Unit. Another factor which lends support to the fact that the appellant
Abdul Hamid participated in the murder of Shahzaman is that he failed to satisfy the
Court as to how he received a bullet injury near Thata (Sindh) while he was not on
military duty.

12. Besides the evidence which proves the prosecution story there are other attending
circumstances which suggest involvement of the convict appellants in the murder of
Shahzaman. As per story narrated by the appellant Mst. Zatoon Bibi to different P.Ws.
such as Muhammad Asghar Suleman, Sain Muhammad etc. the decoits caught hold of her
and during scuffling her clothes were also torn by them. This version leaves behind so
many questions. Why she was left alive to become a witness whereas the fact of the
matter is that she did not receive even a scratch mark on her body. It was not possible for
decoits to straightaway take the rifle of the deceased in their hands and murder him.
Moreover, why they left boxes outside the house. If it was a robbery or dacoity in the
house during night, naturally the decoits were not supposed to be empty handed. They
would have used their own weapons. Moreover, it was not possible for outsiders to locate
the rifle of deceased straightaway by entering into 'lie house. The way in which the
incident took place shows the involvement of inmates of the house. Why Shahzaman
deceased was left alive when he went outside at the first knock. The nomination of
brothers of the deceased as culprits by Mst. Zahida Bibi at the initial stage of the
investigation seems to be an afterthought of her mother Mst. Zatoon Bibi. The reason
being that if the could be identified by a minor girl why not by an adult lady who was
fully acquainted with, her brothers-in-law (husband's brothers). Had it been so, she
would have nominated them by herself keeping in view their strained relations. These all
logical questions which arise in the mind of a prudent person also suggest the
involvement of the appellants in the murder of the deceased.
In the light of the above observations, we find no force in the appeals which are hereby
dismissed. The sentence recorded by the lower Court is upheld.

N.H.Q./42/Sh.C. (AJ&K) Appeals dismissed.

1992 M L D 860

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD ANWAR---Petitioner

versus

Haji MUHAMMAD ISMAIL and others---Respondents

Writ Petition No.6971 of 1989, decided on 4th February, 1992.

(a) Qanun-e-Shahadat (10 of 1984)--

----Art.132---Special assertion of a witness not challenged in cross-examination would

amount to admission of the same. [Cross-examination].

(b) Qanun-e-Shahadat (10 of 1984)--

----Art.79---Execution of document---Proof---Where document was duly proved

through the statements of marginal witnesses, it was not necessary to produce the scribe
of the document, in Court.
(c) Qanun-e-Shahadat (10 of 1984)--

----Art.79---Applicability---Document in question, having conic into existence in the

year 1967, proof of the same in accordance with provisions of Art.79, Qanun-e-Shahadat
1984 was not necessary for Qanun-e-Shahadat had come into force in the year, 1984 ,
much after the creation of the document.

(d) Qanun-e-Shahadat (10 of 1984)--

----Art.79---Execution of document----Proof---Execution of document has to be

proved by the two attesting witnesses, if alive---Where, however, only one attesting
witness was alive and the other had died, signatures of such witness could be proved
through other evidence.

(e) Qanun-e-Shahadat (10 of 1984)--

----Arts. 3 & 17---Competency of witnesses---Nothing was available to show that

witnesses in question, were not competent to testify---Such persons appearing to be
truthful witnesses, their testimony could be safely relied upon.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----S.13---Relationship of landlord and tenant---Respondent although denying to be

tenant of property in question, yet in the face of evidence produced by petitioner landlord
in the shape of rent deed, the respondent neither asserted his ownership nor claimed to be
unauthorised occupant of the same---Rent Controller disbelieving statement of
respondent had rightly concluded that he was in occupation of shop as a tenant under the
petitioner---Order of eviction on the ground of wilful default on the part of respondent
was valid and in accordance with evidence on record.
(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

---S.13---Civil Procedure Code (V of 1908), 0.111, R.1---Ejectment application

through attorney---Competency---Where landlord had appointed special attorney and
authorised him to file ejectment application, same would be deemed to have been
competently filed.

Munir Hussain v. Mst. Mehrun Nisa PLD 1982 Kar. 71 rel.

(h) Civil Procedure Code (V of 1908)--

----O.III, R.1---Duly appointed special attorney could competently file or institute

legal proceedings on behalf of his principal.

(i) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----S.13---Relationship of landlord and tenant---Proof---Entries in the Excise and

Taxation Register pertaining to specific year showing that property in question belonged
to predecessor-in-interest of petitioner and that same was in occupation of respondent as
a tenant though, per se were not sufficient to prove relationship of landlord and tenant but
appellant's claim having been based on ownership, such entries were relevant.

Muhammad Fazal v. Tariq Aziz Malik 1989 MLD 2213 and Ghulam Fatima etc. v. Syed
Bashir Ahmad 1982 CLC 1575 rel.

(j) Constitution of Pakistan (1973)--

----Art.199---Evidence on record was sufficient to prove petitioner's case--Appellate
Court's contrary view, in the face of such evidence being not tenable was declared to be
without lawful authority and of no legal effect.

Muhammad Aqil Mirza for Petitioner.

Ch. Muzammal Khan for Respondents.

Date of hearing: 15th December, 1991.

JUDGMENT

The dispute pertains to a shop bearing NO.XIX-1-S-120 (lower portion), situated in Gali
Araian, Sialkot, which was rented out to Haji Muhammad Ismail, respondent No.1 in the
year 1967 at the rate of Rs.35 per month. Rent was increased from time to time and in the
year 1988, it was Rs.175 per month.

2. An ejectment petition. was filed by the petitioner against respondent No.1 on

5-3-1988, on the ground of default from 1986 till the date of institution of the petition
and sub-letting. The petition was accepted by the learned Rent Controller on 29-9-1988
who ordered eviction of respondent No.1 from the shop. Respondent No.1 preferred an
appeal which was accepted by the learned Additional District Judge. Sialkot vide his
judgment, dated 3rd May,1989.

3. The petitioner's learned counsel submits that the relationship of landlord and tenant
was proved through the rent-deed, dated 23-4-1967 (ExhA-1). He submits that the
rent-deed was duly proved through statements of marginal witnesses A.W.1 Muhammad
Yousuf and AW-2 Shaukat Mahmood son of Muhammad Mehdi, the deceased marginal
witness. He submits that AW-1 had stated that Haji Muhammad Ismail, the tenant had
signed the rent-deed in his presence and the said statement was never questioned in
cross-examination. He points out that signature of respondent No.1 appearing on the
back of rent-deed in token of receipt of rent were proved through statement of AW-2.
The learned counsel for respondent No.1, submits that the rent-deed was not proved in
accordance with the law. He adds that the execution of the deed was denied by
respondent No.1 and the petitioner failed to prove its execution under the provisions of
Articles 17 and 79 of Qanun-e-Shahadat,1984. He further submits that there is no
evidence to show that the relationship of landlord and tenant existed between the parties.
He submits that the findings of fact recorded by the appellate Court are not liable to be
set aside in the- exercise of Constitutional jurisdiction in the absence of misreading or
non-reading of evidence on the record. Lastly respondents' learned counsel contended
that the petition was incompetently filed by Murad AA special attorney of the landlord. In
support of his contentions he placed reliance on the following judgments:

(i) Haji Muhammad Ramzan v. Mian Jamil Shah (PLD 1967 Pesh. 380); (ii) Munir
Hussain v. Mst. Mehrun Nisa (PLD 1982 Kar. 71); (iii) Gul Dad Khan v. Rahim Shah
(PLD 1978 Kar. 19); (iv) Mst. Sarwar Sultan v. Mrs. Saeeduddin NLR 1980 AC
(Lahore-460).

In reply the learned counsel for the petitioner submits that Articles 17 and 79 of
Qanun-e-Shahadat were applicable to documents which had come into existence after
1984. As regards the documents which existed prior to the enforcement of the Order, the
provisions of section 68 of Evidence Act were applicable.

4. There is considerable force in the arguments raised by the petitioner's learned

counsel. .The appellate Court did not care to meet the reasoning of the learned Rent
Controller regarding his findings on issue No.1 and illegally allowed the appeal of
respondent No.i. The learned Rent Controller had come to the conclusion that rent-deed
ExhA-1 was proved through the statement of Muhammad Yousuf AW-1 and Shaukat
Mahmood AW-2, He also noted that respondent No.1 had advanced a false plea of
purchase of the disputed shop from one Ayub but did not produce any evidence to
substantiate the same. The appellate Court appears to have rejected the testimony of
AW-1 and AW-2 on exteraneous considerations. Muhammad Yousuf AW-1 had clearly
stated that he had signed ExhA-1, rent-deed, as a marginal witness and that Haji
Muhammad Ismail respondent No.1 had signed in his presence. He also stated that Mehdi
Shah, the other marginal witness had appended his signature on the said document in his
presence. True, he stated that the rent-deed had already been written and was brought to
the shop for his signature but the same does not detract from validity of the document
because respondent No.1 had voluntarily signed it and thus owned the contents of the
documents. This witness has honestly stated that he did not know Haji Muhammad Ismail
earlier. It simply meant that he had known him since the date of signing the document.
Moreover, no suggestion was put to him that, in fact some other person was produced
who had signed posing himself as Haji Muhammad Ismail. This witness was not in any
doubt about the fact, that it was Haji Muhammad Ismail, respondent, who had signed the
document although he was not known to him prior to the date of signing it. The specific
assertion that Muhammad Ismail, respondent No.1 had signed the rent deed was not even
challenged in cross-examination, which would amount to admission of the said
statement. The other marginal witness namely Mehdi Shah had passed away and his son
Shaukat Mahmood appeared in the Court who duly identified the signature of his late
father on ExhA.1. Mehdi Shah had signed the document in the absence of this witness but
he being the son was conversant with the handwriting and signatures of his father and had
identified the signature on the document. The document Exh.A.1 was duly proved
through the statements o1 A.W.1 and A.W.2. For proving execution of the document it
was not necessary to produce the scribe of the document in the Court. The argument of
the respondent's learned counsel that the rent deed (Exh.A.1) should have been proved in
accordance with the provisions of Articles 17 and 79 of Qanun-e-Shahadat has no force
as the said document had come into existence in the year 1967 and Qanun-e-Shahadat
was enforced in the year 1984. Even otherwise, under Article 79 of Qanun-e-Shahadat,
execution of the document has to be proved by the two attesting witnesses, if alive. In the
present case one attesting witness namely Muhammad Yousuf was alive and examined as
A.W.1. The other attesting witness namely Mehdi Shah had died and his signatures were
proved through the evidence of Shaukat Mahmood, A.W.2, son of the deceased witness.
There is nothing to show that the witnesses were not competent to testify as required by
Article 3 read with Article 17 of the Qanun-e-Shahadat. Both the witnesses appear to be
truthful persons and their testimony can be safely relied upon.

5. In the presence of the above referred evidence, burden shifted to respondent No.1 to
show in what capacity he was occupying the disputed shop. In his written statement he
admitted that he was in possession of the shop but denied that he was a tenant. He neither
asserted in the written statement that he was owner of the shop nor claimed that he was a
trespasser or an unauthorised occupant. However, while appearing as R.W.1 he falsely
claimed to have purchased the shop from one Ayub. The learned Rent Controller
disbelieved the said statement and rightly concluded that respondent No.1 was in
occupation of the shop as a tenant under the petitioner. Respondent No.1 had stated that
he never paid rent to the landlord. Now he cannot turn round and plead payment and is
liable to be evicted on the ground of wilful default.

6. The argument of the respondents' learned counsel that the ejectment petition was not
competently filed by Murad Ali, special attorney of the petitioner, has no force. The
petitioner had duly appointed Murad Ali as his special attorney and authorised him to
institute ejectment petition, appoint a counsel, make statement in the Court, file
application etc. The judgment in the case of Munir Hussain v. Mst. Mehrun Nisa (PLD
1982 Karachi 71) relied upon by the respondent's learned counsel is distinguishable
because m that case the execution of the power of attorney was seriously disputed and it
was held that it was not proved. Moreover, in the above judgment the attorney was not
even authorised to institute the ejectment petition. In the present case, the petitioner did
not say a single word in his statement to challenge the validity of the general power of
attorney.

7. The respondents' learned counsel also relied on the cases of Haji Muhammad Ramzan
and Guldad Khan to urge that entries in the Excise and Taxation Register are not relevant
for deciding question of relationship of landlord and tenant between the parties. Of
course, the entries in the E.T.O. record, per se, are not sufficient to decide the said
question but where the claim of landlord is based on his ownership of the property, the
entries are relevant. This view finds support from the cases of Muhammad Fazal v.
Tariq ,J-' Aziz Malik 1989 MLD 2213 and Ghulam Fatima etc. v. Syed Bashir Ahmad
(1982 CLC 1575). In `the present case the entries of the E.T.O. record pertaining to the
year 1987/88 (ExhA.3) show that the property belonged to Murad Mirza,
predecessor-in-interest of the petitioner and the 4 shops therein were occupied by
different persons as tenants, including Hafeez Qasab, respondent No.2 who, according to
Haji Muhammad Ismail respondent No.1 was his servant. Moreover, the relationship of
landlord and tenant between the petitioner and the respondent No.1 is established through
a written document Exh.A.1 which is proved by the statements of Muhammad Yousuf
A.W.1 and Shaukat Mahmood, A.W.2. He also placed reliance on the case of Sarwar
Sultan v. Saeed-ud-Din (NLR 1980, A.C. (Lah.) 460) to urge that the appellate Court
was justified to reverse the findings of the Rent Controller on reappraisal of the evidence.
The said judgment proceeds on its own peculiar facts and has no bearing on the facts and
circumstances of the present case.

8. For the foregoing discussion, I allow this petition, declare the impugned order, dated
3-5-1989, passed by the learned Additional District Judge to be without lawful authority
and of no legal effect and restore that of the Rent Controller, leaving the parties to bear
their own costs.

A.A./M-212/L Petition allowed.

1991PCr.LJ 826

[Lahore]

Before Muhammad Munir Khan and Muhammad Amir Malik, JJ

RAB NAWAZ and others---Appellants

Versus

THE STATE- -Respondent

Criminal Appeals Nos. 79-J and 30-J of 1988, heard on 24th February 1991.

(a) Penal Code (XLV of 1860)

----S. 392/34---Appreciation of evidence---Prosecution evidence did not suffer from

material contradictions, major discrepancies or dishonest improvements--Complainant
was an absolutely dependable witness and conviction could safely be sustained on his
evidence without further corroboration of the same---Claim of complainant that he could
identify the culprits, however, stood confirmed and corroborated by the test of
identification parade---Accused could not rebut prosecution case and evidence produced
by it---Conviction and sentence of accused were upheld in circumstances.

(b) Qanun-e-Shahadat (10 of 1984)

----Art. 17---Penal Code (XLV of 1860), S.392/34---Court can convict an accused person
on the testimony of one dependable witness---Law attaches more importance to quality
than to quantity of evidence---Proof of a fact would depend upon the character of
witnesses and their competency to speak to that fact.---[Witness].

Nemo for Appellants.

Mrs. Yasmin Sehgal for the State.

Date of hearing: 24th February 1991.

JUDGMENT

MUHAMMAD MUNIR KHAN, J.---These two Jail Appeal No.79-J of 1988 by Rab
Nawaz and Criminal Appeal No.30-J of 1988 by Muhammad Rafiq arises from the
judgment of Judge, Punjab Special Court for Speedy Trial NO. VIII, Sargodha, whereby
he on 3-2-1988, convicted them under section 392 read with section 34, P.P.C. and
sentenced them to ten years' R.I. and a fine of Rs.10,000 in default thereof two years' R.I.
each. We propose to dispose of these appeals through this single judgment.

2. The charge against the appellants/accused was that they robbed Muhammad Siddiq,
P.W.1 of Rs.70 and of motor cycle on 14-2-1986 near Burji No.74 on canal bank in Chak
No.10/ML at a distance of five miles from Police Station Pipplan of District Mianwali.
They denied the charge and claimed to be tried.

3. To prove its case, the prosecution produced seven witnesses. Muhammad Siddiq P.W.1
stated that on the fateful day, he was proceeding to Chashma Colony on his motor, cycle.
When he reached near Burji No.74, on the canal bank, he found that the road was
blocked, so he stopped his motor, cycle. A person with muffled face carrying knife came
there and asked him to hand over whatever was with him. At this juncture, another person
with a muffled face, armed with carbine arrived there. He offered Rs.70 to them. But they
(culprits) said that he had more money with him, which he should give to them. This led
to dialogues and altercation between him and the culprits. In the course of altercation, the
clothes fell down from the faces of the culprits enabling him to see their features/faces.
But they again muffled their faces. Since nothing more could be recovered from him, so
they (culprits) forcibly took away his motor, cycle.

4. Ch. Shanlim Jahangir (P.W.2), Magistrate Ist Class conducted the identification parade
on 29-4-1986. During the identification parade, Muhammad Siddiq P.W.1 correctly
identified the appellants/accused. Muhammad Sarfraz Khan S.I. (P.W.3) recorded F.I.R.
Exh.PA. on the report of Muhammad Siddio P.W.1 on 14-2-1986 at 6-30 p.m. Motor
cycle Exh.P.1 was recovered from the house of one Munir on 9-5-1986 in the presence of
Shabbir Hussain P.W.4. Ilam Din P.W.5 is a Wajtakkar witness. He stated that on 14-2-
1986, he had seen the appellants with motor cycle of the complainant in Chak No.II/ML.
Khuda Bakhsh S.I. (P.W.-6) stated that on 9-5-1986 Muhammad Rafiq led to the recovery
of knife P.2 from his house and, on the same day, Rab Nawaz accused /appellant got
recovered .12 bore pistol P.3, one live cartridge P.4 and Rs.70 from his house.
Muhammad Masood Inspector (P.W.7) investigated the case. He supported the recovery
of knife at the instance of Muhammad Rafiq appellant and the 'recovery of carbine P.3,
live cartridge P.4, currency note P.5 and two ten rupees currency notes on the pointation
of Rab Nawaz accused/appellant.

5. When examined under section 342, Cr.P.C., the appellants denied all the incriminating
circumstances. They did not produce evidence in defence.

6. Believing the prosecution evidence, the learned trial Court has convicted and sentenced
the appellants, as stated above.

7. These appeals have been filed through Jail. We have gone through the evidence with
the assistance of Miss Yasmeen Sehgal, Advocate, learned counsel for the State. We find
that Muhammad Siddiq P.W./complainant had no enmity against the appellants. He being
the Manager of Muslim Commercial Bank was/is a responsible person. He has
successfully faced the test of cross-examination. He rightly identified the appellants in
the identification parade. No objection whatsoever,, was raised by the appellants at the
time of identification parade before the Magistrate. We are very much impressed by the
straightforward manner in which the investigation has been conducted in this case. The
police could easily plant the recovery of stolen motor, cycle on one of the appellants, but
this has not been done. There is no reason to doubt the veracity of Muhammad Siddiq
complainant and Ch. Shamim Jahangir Magistrate/P.W. The prosecution evidence does
not suffer from material contradictions, major discrepancies or dishonest improvements.
Under Article 17 of the Qanun-i-Shahadat, the Court could/can convict an accused person
on the testimony of one dependable witness, in this case. The law attaches more
importance to the quality than to the quantity of evidence. Proof of a fact would depend
upon the character of the witnesses and their competency to speak to that fact. On our
assessment of the evidence of Muhammad Siddiq P.W., we find him to be an absolutely
dependable witness and the conviction can safely be sustained' on his evidence Without
further corroboration of the same. However, in the instant case, the claim of Muhammad
Siddiq P.W. that he could identify the culprits stands confirmed and corroborated by the
test of identification parade. The appellants have not been able to rebut the prosecution
case and evidence produced by it. The learned trial Court has applied its conscious mind
to the evidence on record and has given sound and cogent reasons in support of its
decision. The sentence awarded by the learned trial Court, in the circumstances of the
case, is not excessive.

8. The upshot of the above discussion is that there being satisfactory basis to uphold the
conviction and sentence of the appellants, the appeals are I dismissed.

N.H.Q./R-279/L Appeals dismissed.

1986 P Cr. L J 1818

[Karachi]

Before Abdul Razzak A. Thahim, J

NOORUL ISLAM--Appellant

Versus

THE STATE—Respondent

Criminal Appeal No. 14 of 1986, decided on 3rd April, 1986.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)----

----Art. 4--Accused found in possession of heroin in odd hours of night near a

hotel--Allegations against accused being that he was selling heroin--Many persons
witnessed when heroin was secured from him at public place--Requirement of Art.4
fulfilled--Report of Chemical Examiner positive--Accused proving no enmity with
witnesses and Mashirs-Investigation by Police not defective--Conviction maintained.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)----

----Art. 4--Evidence--Evidence of police men--Evidence by police men, held, could
not be discarded until and unless it was found that they had given evidence due to some
mala fide.--[Evidence].

1976 S C M R 72; P L D 1981 S C 635; 1982 P Cr. L J 543 and 1982 P Cr. L J 399 rel.

(c) Qanun-e-Shahadat Order (10 of 1984)—

-----Art. 3--Prohibition (Enforcement of Hadd), Order (4 of 1979),

Art:4--Witnesses--Competency--Competency of witnesses neither challenged before
trial Court nor even in arguments before Court--No question put to witnesses either
about such testimony or previous character in" cross-examination--Witnesses were
competent to give evidence--Court, held, was to determine competency of witnesses in
accordance with qualification prescribed by injunction of Islam as laid down in Holy
Qur'an and Sunnah and if Courts came to conclusion that witnesses 'were not competent,
Court could discard their evidence.-[Witness-Evidence].

(d) Criminal Procedure Code (V of 1898)—-

---S. 382-B--Accused in jail since his arrest and not-admitted to bail at earlier
stage--Accused granted benefit of S. 382-B, Criminal Procedure Code.

K.M. Nadeem for Appellant.

Makhdoom Abdul Wali for the State.

Date of hearing: 26th March, 1986.

JUDGMENT
This appeal is directed against the judgment, dated 6th February, 1986 of Additional
Sessions Judge (Huddood) East, Karachi whereby he convicted the appellant Noorul
Islam under article 4 of the Prohibition (Enforcement of Hadd) Order 1979 and sentenced
him to suffer R.I. for two years, 15 strips and fire of Rs.15,060 in default of payment of
fine he shall suffer R.I. for six months.

Briefly stated the facts of the prosecution case are that on 11-7-1975, A.S.I. Muhammad
Yousuf of Police Station, Gulberg Karachi, alongwith police constables Khursheed,
Abdul Hamid and Lal Affsar was on petrol duty. He got spy information that one person
is selling Heroin sit Bengali Para, behind Jhoppra Hotel Block V, Federal B. Area,
Karachi. He went there and found appellant and on search 15 grams of Heroin was
recovered. A.S.I. Muhammad Yousuf secured the material in presence of the Mashirs
namely Khursheed Ahmed Ajmari and Anwar Hussain and prepared such Mashirnama
Exh.6. He brought the appellant at police station and lodged F.I.R. Exh.7 an behalf of the
State.

He sent Heroin to the Chemical Examiner, Government of Sind, Karachi, the report
Exh.8 is in positive. The appellant was challaned.

Before the trial Court prosecution in support of the case examined Muhammad Yousuf,
Head Constable, the then A.S.I. of P.S. Gulberg, Khursheed Ahmed Ajmari Mashir of
recovery Exh.9 Khursheed Ali, Police Constable Exh.10 and Abdul Hamid, Police
Constable Exh.11. Appellant in his statement under section 342, Cr.P.C. denied the
allegation and stated that he is innocent and witnesses, have deposed against him as they
are police witnesses. The statement of appellant on oath Exh.14 was also recorded.

Muhammad Yousuf who was A.S.I. at the relevant time supported the case and stated that
he found appellant smoking Heroin in presence of private witnesses Khursheed Ahmed
Ajmari and Anwar Hussain and also secured 15 grams of Heroin contained in plastic bag
from the right side of the pocket of the trouser of the appellant. He has produced
Chemical Examiner's report Exh.8 which shows that material was powder of Heroin
weighing 15 grams, P.W. Khursheed Ahmed Ajmari, has stated that he was made Mashir
of arrest of appellant Noorul Islam and on his personal search Sobidar Yousuf secured a
packet and told them that it was Heroin. He in .his cross-examination stated that he was
some time ago member of Qaumi Razakar force and used to perform duty with police at
Gulberg Police Station. Police constables Khursheed Ali and Abdul Hamid also supported
the version as given in the F.I.R.

Appellant led no evidence in his defence.

Mr. K. M. Nadim learned counsel appearing for the appellant raised the following
contentions.

(1) Police has no power to search a person of any public, man.

(2) Local police cannot investigate the cases under Hudood Ordinance.

(3). Witnesses are of not competent, therefore, their evidence cannot be believed as
they have not fulfilled the requirements of Arts. 3 and 17 of Qanun-e-Shahadat; 1984.

He has also argued that appellant was not given benefit of section 382-B, Cr. P. C. He has
referred to a case reported in A I R ,1942 All. 424, the point of search of a person.

Mr. Makhdoom Abdul Wali, appearing for the State has supported the conviction and
submitted that evidence of the witnesses was not challenged, therefore, prosecution has
proved the case beyond any reasonable doubt. He submitted that police can investigate
cases registered under 'prohibition of Hudood Ordinance.

Appellant was found in possession of 15 grams of Heroin in odd-hours of night near a

hotel. The allegation against him that he was selling Heroin. There are as many 4
witnesses in whose presence the Heroin was secured from the appellant at a public place,
therefore, requirements of section 4 of the Hadd Ordinance, 1979 have been fulfilled. The
report of the Chemical Examiner is in positive. The appellant has not been able to prove
any enmity with all these witnesses including Mashirs. No doubt 3 witnesses are police
men and Khursheed Ahmad Ajmari, worked in Qaumi Razakar Force. The evidence of
policeman cannot be discarded until and unless it is found that they have given evidence
due to some mala fide. There are numerous authorities on this R point. However, I refer
to 1976 S C M R 72; P L D 1981 S C 635; 1982 P Cr. L J 543 and 1982 P Cr. L J 399.

Now, I come to next contention of 'the learned counsel about testimony of the witnesses.
The competency of the witnesses was not challenged before- the trial Court and even in
argument this' point appears to have not been taken. Not only this but no question has
been put to the witnesses, about their testimony or previous character. Under Article 3 of
the Qanun-e-Shahadat, 1984 a person shall not be competent to testify if the has been
convicted by the Court for perjury or giving false evidence. The Court has to determine
the competency of witnesses in accordance with the qualification 'prescribed by
injunction of Islam as laid down in the Holy Qur'an and Sunnah. The Courts can examine
this point and if come for the conclusion that witnesses are not competent he can discard
their evidence. In cross-examination no such question has been put about incompetency
of these witnesses. In these circumstances I do not agree to Mr. K.M. Nadeem. I am of
this view that witnesses are competent to give evidence 'and there is no legal flaw in their
testimony. Mr. K. M. Nadeem has also argued that Investigation Officer cannot take
search of a person. I also do not agree with him. On this I-refer subsection (3) of section
102, Cr.P.C. which reads as under:-

"(3) Where any person in or about such place is reasonably suspected of concealing
about his person any article for which search should be made, such person may be
searched of such person is a woman, the direction of section 52 be observed."

The upshot of the above discussion is that the case has been proved against the appellant,
and he has rightly been convicted. The investigation bf police is not defective. The,
appeal is dismissed. The benefit of section 382-B, Cr.P.C. has not been given to the
appellant. It is contended that appellant is in jail since his arrest and was nod admitted to
bail at earlier stage. He shall be granted benefit of section 382-8, Cr.P.C. and jail
authorities to compute the period after necessary verifications.

M. Y. H. ----- Appeal dismissed:

1980 P Cr. L J 186

[Karachi]

Before Zaffar Hussain Mirza, J

EHSAN ELAHI MALIK - Appellant

versus

THE STATE---Opponent

Special Criminal Appeal No. 9 of 1979, decided on 20th October; 1979.

(a) Evidence Act (I of 1872)----

----S. 45-Expert witness=Competency-Test.-[Evidence]. The test for judging the

competency of an expert is to determine as to whether he is skilled and has adequate
knowledge in a particular calling to which the enquiry relates. It is for the Court to decide
the question of the competency and fitness of such witness and the test is to see if the
witness is sufficiently qualified by experience.

(b) Evidence Act (I of 1872)----

----S. 45-Expert witness-Opinion of experienced jeweller qua precious stones, held,

a4lmisstble when his experience in field not challenged in cross-examination.
(c) Customs Act (IV of 1969)---

----S. 2(s)-Smuggling-Attempt-Accused purchasing ticket for going to a foreign country,

checked in at Airline counter, given boarding card and baggage tags and finally 'asked to
make a declaration Accused in declaration suppressing information regarding huge
quantity of foreign currency in his possession and precious stones carried by him-
Appellant, but for interception by Customs Officers having done everything in his power
to take contraband out of country, case of attempt to smuggle, held, established.

(d) Customs Act (1V of 1969)----

---- S, 156 (1), (8)---Punishment---Quantum-Question of sentence-- . To be determined

on facts of each particular case-No hard and fast rule-No material on record as to
financial capacity of appellant - No argument regarding his inability to pay fine imposed-
Having regard to circumstances pointed out by appellant's counsel, sentence of
imprisonment and fine however, reduced to meet ends of justice.-[Sentence].

Muhammad Hayat Junejo for Appellant.

Mrs. Rashida Patel for the State..

Date of hearing: 7th October, 1979.

JUDGMENT

The appellant was tried and convicted under clause (8)1'of section 156 (1) of the Customs
Act, 1969, and was sentenced to undergo simple imprisonment for 15 months and to pay
a fine of Rs. 1 lac or in default to further undergo simple imprisonment for 15 months by
the Special Judge, Customs, Karachi vide his judgment dated 8th March, 1979.
Aggrieved by the aforesaid conviction and sentence the appellant has come up in appeal
before this Court. Briefly the facts of the prosecution case are that the appellant who
holds a British Passport, was about to leave Karachi for Hong Kong on 12th January,
1978 when be was intercepted by Mr. Jafery and other Customs Officers at the Karachi
International Airport at about 4-30 a.m. He was asked to declare if he was carrying any
contraband articles including currency and precious stones. Pursuant to this the appellant
made a declaration in Form F. M. under his signature disclosing that he had currency
notes of the value of 24 pounds sterling and 775 U. S. $ but in the column relating to
jewellery and precious stones, -the appellant marked `NILL'. After that the appellant was
searched in the presence of Mashirs Mohammad Iqbal and Cardoza but nothing
incriminating was secured. from .his personal search. However, some documents
consisting of passport, air ticket, health card and boarding card were secured from the
person of the appellant, The appellant was carrying a handbag with the airline cabin
luggage tag on searching which it was found to contain two trousers and a coat with their
pockets stitched. From -the pocket of the coat the Customs Officer recovered currency
notes of 20,000 .U. S: $ and six pieces of emeralds. From the. pocket of one of the
trousers currency notes of 10,000 U. S. $ and from the pocket of the other trouser
currency notes of 1,900 U. S. $ and 1,150 Pakistani Rupees were secured. From the
pyjama which' was also lying in the handbag currency notes of 7,100 U. S. $ were
recovered. The above currency notes and goods were seized and a mashirnama was
prepared by Anwar Hameed Jafery, Intelligence Officer, Customs, Karachi. The appellant
was then arrested and. F. I. R. was registered on behalf of the State. The appellant was
also served with notice under section 171 of the Customs Act. After the usual
investigation a chargesheet was submitted before the trial Court on 21st June, 1978.

2. The prosecution evidence consists of the testimony of Mr. Jafery, the Seizing Officer
who has supported the prosecution case as stated above, P. W. Cardoza, an employee of
the Swiss Airways, who acted as the mashir and P. W. Nazir Ahmed, a Jeweller by
profession who was examined as to the value of the emeralds. P. W. Cardoza has fully
supported the prosecution case and has stated that the appellant had checked-in for Hong
Kong by Swiss Air flight on the day of the incident at about 4-15 a.m. He had issued the
appellant a boarding card and cabin tag for his baggage and then the Customs Officer
interrogated the appellant asking him to declare on the Declaration Form any currency or
precious stones.- He has also .corroborated the evidence of Mr. Jafery that currency notes
and emeralds were secured from the clothes kept in the handbag of the appellant in .his
presence. The evidence of P. W. Nazir Ahmed is that he has been dealing in emeralds and
precious stones since his childhood. The emeralds in this case were referred to him by the
Customs Department for evaluation. According to him one piece of the emeralds weighed
3.85 carats whereas the remaining 5 pieces collectively weighed 80 carat. In his opinion
the emeralds were of Pakistani Original and the value of the big piece was Rs. 1 lac
whereas the value of the other five was Rs. 10,000.
3. The appellant did not deny the recovery of the contraband articles in the manner
alleged by the prosecution. However, his defence was that he was not smuggling goods
our of Pakistan. As to the currency he stated that he had brought the Dollars with him
when he came to Pakistan and was taking them out. He admitted that he purchased 'the
emeralds from Pakistan. As regards Pakistan currency his explanation was that he was
carrying this amount so that if he is unable to leave as scheduled he may be able to stay in
a hotel at Karachi.

4. The learned Judge of the trial Court has referred to rule 5 of Chapter XVIII of the
Exchange Control Manual published by the State Bank of Pakistan whereby it is
permissible to take out of Pakistan currency notes up to Rs. 20 in value per person. Under
rule 8 persons going to any country other than Afghanistan can carry foreign currency
notes of the exchange value issued to them by the authorised dealers on their passports.
Foreign nationals are permitted to take out within six months from the date of arrival in
Pakistan the unspent balance of foreign exchange that was brought in by them at the time
of their entry in Pakistan without the approval of the State Bank. Similarly Pakistani
nationals who are working or are settled abroad are allowed to take out within 15 days
from the date of arrival in Pakistan, the unspent balance of foreign exchange brought in
by them. In view of these rules and regulations, so far as the currency secured from the
possession of the appellant, is concerned, clearly he could take out the said currency only
in violation of the prohibitions contained in the foregoing rules. It was not disputed that
the stay of the appellant during his current visit of Pakistan was for more than six months
period. Under rule 15 of the aforesaid Chapter of the Manual the export of Jewellery or
precious stones up to Rs. 1,000 in value is allowed to persons other than those domiciled
in Pakistan or India when returning to their own country. Similarly Pakistani nationals are
allowed to take out Jewellery or precious stones up to Rs. 1,000 only under rule 14.
Under subsection (2) of section 8 of the Foreign Exchange Regulation Act the export
from Pakistan of Jewellery or precious stones except with the general or special
permission . of the State Bank is prohibited.

5. Now it is not disputed that the appellant was found in possession of unauthorised
foreign and Pakistani currency as well as precious stones. The only contention is that the
facts established on record do not constitute an attempt in law so that no offence of
smuggling as defined in section 2 (a) of the Customs Act, 1969 was committed by the
appellant. It was argued that the appellant may have changed his mind before performing
the final act of boarding the plane for consummation of the offence. It was also contended
that the evidence of P. W. Nazir Ahmed was .not admissible as he is not an expert within
the meaning of section 45 of the Evidence Act. The last contention has been made in
order to challenge the value of the precious stones for the reason that the precious stones
of the value up to Rs. 1,000 could validly be exported without permission.
6. 1 will first take up the consideration of the last-mentioned contention. Section 45 of the
Evidence Act defines an expert as a person specially skilled in foreign law, science or art
etc. Accordingly the test for judging the competency of an expert is to determine as to
whether he is skilled and has adequate knowledge in a particular calling to which the
enquiry relates. It is for the Court to decide the question of competency and fitness of
such witness and the test is to see if the witness is sufficiently qualified by experience. P.
W. Nazir Ahmed has stated in hip deposition that he is a partner in a jewellery shop and
has been doing the jewellery work since his childhood. He has dealt in emeralds and
other precious stones. It was argued that these facts do not make the witness an expert
witness to make his opinion admissible under section 45 of the Evidence Act. Learned
State counsel on the other hand, submitted that the witness has sufficient experience in
dealing with precious .stones of the nature referred to him and could, therefore, express
opinion as an expert as to the value of the stones concerned. It has not been pointed out to
me as to what qualifications an expert of this nature should possess. Normally an
experienced jeweller should be able to give a fairly correct appraisal of the value of
precious stones. The experience in the field claimed by the e witness was not challenged
in the cross-examination. I am, therefore, inclined to hold that the evidence of the witness
was admissible. In any case the question is not very material as the emeralds formed only
one o the items of the contraband articles for which the appellant was charged. Clearly
the foreign currency admittedly in possession of the appellant was also a prohibited item
and .the offence could be sufficiently established against the appellant even if' the
emeralds were not proved to be of the value of more than Rs. 1,000. This, therefore,
brings me to the remaining argument of the counsel that the facts on record do not
constitute an attempt on the part of the appellant.

7. The only argument in this behalf is that the appellant could have changed his mind
before finally embarking upon his journey out of Pakistan. It is in evidence that the
appellant had purchased a ticket for going to Hong Kong, he checked-in at the Swiss
Airline Counter, he was given the boarding card and the baggage tags and finally he was
asked by the Customs Officer to make a declaration. In this declaration in writing which
is on record as Exh. 31, the appellant suppressed . the information regarding the huge
quantity of foreign currency in his possession and the precious stones carried by him.
Having regard to all these facts it is clear that but for the interception by the Customs
Officials the appellant had done everything in his power to take out of Pakistan the
contraband articles. The Court is entitled to infer the existence of a fact regard being had
to the common course of natural events and human conduct. There is nothing on record to
indicate that the appellant, could have retraced his steps from the commission of the
offence. There is, therefore, no force in this submission that the evidence does not
establish the case of attempt to smuggle. Under section 2 (s) of the Customs Act, 1969 the
offence of smuggling includes an attempt, abetment or connivance of bringing in or
taking out of prohibited goods. I, therefore, hold that the offence has been brought home
to the appellant.

8. Learned counsel for the appellant finally assailed the quantum of sentence awarded by
the trial Court. He argued that the facts show that the appellant only committed a
technical offence. In this behalf counsel pointed out that so far as the currency is
concerned, the stay of the appellant in Pakistan exceeded the prescribed limit of 6 months
by 12 days. Further he referred to the fact mentioned in the F. I. R. that the money and the
stones belonged to one Mohammad Iqbal of Lahore and the appellant was a mere carrier'
for the purpose of conveying the goods to one Irfan at Hong Kong. The only benefit that
the appellant would have derived from the smuggling venture was $ 1,000 as mentioned
in the mashirnama (Exh. 3-A). Counsel referred to Adamjee Umer v. State of Bombay (A
I R 1952 S C 40) in which the appellant was convicted under sections 7 and 8 of the
Essential Supplies (Temporary Powers) Act, 1946 and was sentenced to 6 months' R. I. as
well as fine of Rs. 15,000. The Supreme Court of India while emphasising the need for
maintaining proportion between the offence and the penalty observed in imposing a fine
it is .necessary to have as much regard to the pecuniary circumstances of the accused
persons as to the character and magnitude of the offence and where a substantial term of
imprisonment is inflicted an excessive fine should not accompany it except in exceptional
cases". In Mohammad Sharif v. Crown (P L D Lah. 650) view was held that where fine is
beyond the means of an offender to pay, it ought not to be inflicted merely in order that a
substantive period of imprisonment in default should be suffered by the accused. Similar
view was held in Jagpat v. State (A I R 1957 All.764). The principles enunciated in the
aforesaid decisions by the learned counsel at the bar are valid and useful considerations
for determining the quantum of sentence to be awarded in a case but as I have already
held question of sentence has to be determined in the facts of each particular case and no
hard and fast rule can . be laid down. There is no material on record as to the D financial
capacity of the appellant and it has not been argued that he i unable to pay the fine
imposed upon him. Hoevever, having, regard to the circumstances pointed out by the
learned counsel of the appellant, in my opinion a sentence of simple imprisonment for a
period of one year and fine of Rs. 25,000 or in default further simple imprisonment for 3
months will adequately meet the ends of justice.

9. In the result, this appeal is dismissed with the aforesaid modification in the sentence.

Appeal dismissed.