August 22, 2003	Friday	Jumadi-us-Sani 23, 1424

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PESHAWAR, Aug 21: A two-member bench of the Peshawar High Court has ruled that any statement recorded by an accused before a competent customs officer under the Customs Act is not equivalent to a confessional statement and, on its basis, an accused could not be convicted.

The bench, comprising Justice Qazi Ahsanullah Qureshi and Justice Qaim Jan Khan, gave the ruling on Thursday while accepting a writ petition of an employee of the defunct Government Transport Service (GTS), and acquitted him of charges in a narcotics smuggling case.

Normally, the Customs Department officials rely on statements recorded under Section 165 of the Customs Act and do not produce a suspect before a magistrate for recording confessional statements.

The petitioner, Ali Gohar of Charssada, who was a cleaner in the GTS, was sentenced to six years imprisonment by the Customs Appellate bench of the high court on June 9, on the basis of his statement recorded before a customs officer under Section 165 of the Custom Act, 1974.

Two employees of the GTS — Qadir Gul and Ali Gohar — were arrested on July 20, 1992, on charges of smuggling six kilograms of heroin and foreign cloths. They were acquitted by a special customs judge in March 1993.

However, the Customs Department filed an appeal before the Customs Appellate bench of the high court which accepted the appeal and convicted both of them.

Advocate Noor Alam Khan filed a writ petition on behalf of Ali Gohar before the high court, stating that a statement under Section 165 of the Customs Act could not be considered equivalent to a confessional statement recorded before a judicial magistrate under Section 164 of the Criminal Procedure Code.

Mr Khan contended that under Section 164 of the CrPC there were certain requirements which had to be fulfilled by a magistrate while recording the statement of an accused. He said that the magistrate had to inform the accused about repercussions of recording a confessional statement and had to inform him that the said statement could be used as an evidence against him.

However, he contended, there were no such requirements under Section 165 of the Customs Act as the competent officer did not fulfil these conditions while recording statement of the accused.

Mr Khan added that the statement under Section 165 of the Customs Act at the most could be considered equivalent to a statement recorded by the police under Section 161 of the CrPC, which could not be used as an evidence against an accused.

The petitioner’s counsel further stated that putting signature of an accused on a statement recorded under Section 165 of the Customs Act was in conflict with the CrPC as a statement before an officer was not equivalent to a confessional statement.

He said that the high court might give a ruling about the admissibility of a statement under Section 165 as a confessional statement.

The Deputy Attorney-General of Pakistan, Salahuddin Khan, appeared for the Customs Department and contended that the Customs Act was a separate law and its sections were applicable to cases falling under the Customs Act.

He contended that the statement under Section 165 of the Act was recorded before a competent officer and, therefore, it could be considered a confessional statement.

He said that the appellate court was right in setting aside the acquittal of the petitioner and convicting him on the basis of that statement.