Understand how Pakistan’s Customs law shifts the burden of proof in smuggling cases. The Sindh High Court ruling in Abdul Razzaq v. DG Intelligence & Investigation-FBR (2016 PTD 1861) explains when a trader must prove lawful possession of foreign goods.

Smuggling Law & Burden of Proof: What the Sindh High Court Clarified in Abdul Razzaq v. DG Intelligence & Investigation-FBR (2016 PTD 1861)

When customs officers raid a warehouse and find goods of foreign origin, who must prove whether they’re smuggled — the government or the trader?

This is not a theoretical question. It goes to the heart of many customs disputes in Pakistan. Traders often claim they bought the goods “from the open market,” while the authorities accuse them of smuggling.

The Sindh High Court’s judgment in Abdul Razzaq v. DG Intelligence & Investigation-FBR (2016 PTD 1861) answers that question with precision — and its reasoning has since become a reference point for how the burden of proof operates in smuggling cases under the Customs Act, 1969.

Case Summary

Background:

Customs intelligence received information about a large stock of foreign-origin ladies’ art silk cloth stored in a Karachi warehouse. Acting on that tip, a team raided Plot No. 176, Al-Habib Textile Mills, Garden West, and seized 54 bales and 5 bags (3,220 kg) of cloth marked “In Transit to Afghanistan via Karachi” — clearly of Indian origin, which was banned for import under the Import Policy Order 2010–2011.

During the raid, one Abdul Razaq, working as Munshi for Abdul Qadir (the warehouse occupant), claimed that the goods belonged to Abdul Qadir, who allegedly bought them from the open market in Quetta. But neither man could produce any import or purchase documents.

The cloth was confiscated, and the case proceeded through all three adjudicative tiers — the Deputy Collector, the Collector (Appeals), and finally, the Customs Appellate Tribunal — each ruling against the applicant.

The Legal Question Before the High Court

When the case reached the Sindh High Court through a Customs Reference under Section 196, the key question was:

> Who bears the initial burden of proof — the Customs Department or the accused trader?

In other words: if someone claims they lawfully purchased goods of foreign origin from within Pakistan, must Customs prove smuggling, or must the trader prove lawful purchase?

The Applicant’s Argument

The applicant, Abdul Razaq, argued that:

Customs had produced no direct evidence of smuggling.

The goods were bought from the open market in Quetta.

Hence, the authorities were legally bound to prove smuggling beyond reasonable doubt.

He relied on several earlier precedents — including PLD 1962 SC 440 (Qazi Ziauddin) and 1988 MLD 2085 (Mian Shafiq Alam) — to argue that mere possession of foreign goods doesn’t automatically mean they’re smuggled.

The Court’s Analysis

Justice Muhammad Karim Khan Agha examined the case law and dissected the logic of burden of proof under Sections 2(s), 16, and 187 of the Customs Act, 1969.

Let’s break that down.

1. What the Law Says

Section 2(s) defines “smuggling” — bringing goods into Pakistan in breach of any prohibition or to evade customs duties.

Section 16 empowers the Federal Government to prohibit or restrict import of certain goods.

And most importantly, Section 187 of the Customs Act states:

> “When any person is alleged to have committed an offence under this Act… the burden of proving that he had such authority, permit, licence or other document shall lie on him.”

That means: if a person is found in possession of goods that appear imported, the initial evidentiary burden lies on them to show lawful possession — not on Customs to prove smuggling.

2. The Principle of Shifting Burden

The Court cited Kamran Industries v. Collector of Customs (PLD 1996 Karachi 68) and Sikandar A. Karim v. The State (1995 SCMR 387) to explain the two-tier burden:

Initial evidential burden: lies on the accused to produce some evidence showing the goods were lawfully acquired.

Legal burden: shifts to Customs to disprove that evidence once the accused presents a prima facie case.

In simple terms:

If you show receipts, invoices, or proof of lawful purchase, Customs must then disprove your claim. But if you show nothing — the presumption of smuggling stands.

3. Why the Applicant Lost

The Court emphasized several critical facts:

The cloth was clearly of Indian origin, not importable into Pakistan.

 The goods were packed in cartons labeled “In Transit to Afghanistan via Karachi”.

The applicant produced no purchase receipt, invoice, or payment proof.

He admitted the goods belonged to him.

Given these factors, the Court held that the initial burden under Section 187 was not discharged.

Only a bare verbal claim of open-market purchase was made — and that wasn’t enough.

Hence, the Tribunal and lower authorities were right to treat the goods as smuggled and uphold their confiscation.

4. Distinguishing Earlier Cases

The Court explained why earlier judgments cited by the applicant didn’t help:

In Qazi Ziauddin (PLD 1962 SC 440), the goods were lawfully importable — unlike here, where import from India was banned.

 In Mian Shafiq Alam (1988 MLD 2085), the accused produced a valid cash memo, establishing prima facie lawful purchase.

 In Sikandar A. Karim (1995 SCMR 387), the goods were freely importable and available in the open market — again, not comparable.

In Abdul Razaq’s case, none of these conditions applied. Hence, the presumption of illegality stood.

The Ruling

The Sindh High Court reframed the central legal question as:

> “Whether the Customs Appellate Tribunal was justified in holding that the goods in question are smuggled goods and that the applicant failed to discharge the burden of proof under Section 187 of the Customs Act, 1969?”

The Court answered in the affirmative — in favor of the Customs Department — and dismissed the Reference.

Key Takeaways for Traders and Practitioners

1. The Law Doesn’t Favor Silence

If you’re caught with goods of foreign origin — especially banned items — saying “I bought them from Quetta” won’t save you.

You must show documents: receipts, invoices, transport bills, or any record showing lawful purchase.

2. Section 187 is the Turning Point

The Customs Act 1969 shifts the evidential burden to the accused early.

Failing to meet that burden can lead to automatic confiscation and penalties.

3. The Type of Goods Matters

Goods legally importable and available in open markets may create a presumption of lawful origin.

But banned goods — like Indian-origin fabric in this case — create a presumption of smuggling unless proven otherwise.

4. Intelligence-Based Seizures Carry Weight

When seizures are made based on credible intelligence, supported by witnesses and proper seizure reports, courts generally uphold them.

5. Documentary Proof is Your Shield

Even a simple cash memo can change the entire case. The absence of documentation signals guilt under customs law.

Legal Insight: Shifting Onus — Not Shifting Blame

This judgment reaffirms a subtle but powerful distinction:

Customs law doesn’t assume every accused person is guilty — but it does assume that someone in possession of banned or duty-evaded goods must explain their possession.

That explanation must be more than words — it needs evidence.

In that sense, the ruling aligns with Article 121 of the Qanun-e-Shahadat (1984) — anyone claiming an exception (lawful possession) must prove it.

Practical Implications for Businesses

If you deal in imported goods, especially textiles, machinery, or electronics:

Keep your import and purchase records for at least 5 years.

Avoid sourcing goods without invoices — even from “trusted” market suppliers.

Know your Import Policy Orders — not everything sold in the market is legally importable.

Engage customs lawyers early if your goods are detained or seized.

A well-prepared response can often prevent escalation to confiscation or prosecution.

FAQs on Customs Seizure & Burden of Proof in Pakistan

Q1. Who bears the burden of proof in a customs smuggling case?

Under Section 187 of the Customs Act, 1969, the person found in possession of suspected smuggled goods bears the initial burden to prove lawful possession.

Q2. What kind of documents help discharge the burden?

Invoices, import declarations, receipts, transport bills, and customs clearance papers — anything showing the goods were lawfully acquired.

Q3. What happens if I claim I bought the goods from the open market?

You must produce at least some documentary evidence of that purchase. Mere oral claims are insufficient.

Q4. Can Customs seize goods even if I didn’t personally import them?

Yes. Possession of banned or duty-evaded goods is enough to attract liability unless you prove lawful acquisition.

Q5. Are all foreign goods presumed smuggled?

Not all. Only those which are banned for import or lack duty-payment records. Goods freely importable and commonly sold in open markets carry a different presumption.

Q6. What’s the best defense against a smuggling allegation?

Immediate production of documents showing lawful source or purchase. The faster you establish your evidential defense, the weaker the prosecution’s case becomes.

Final Word

The Abdul Razzaq judgment makes one principle crystal clear:

> Customs law rewards documentation and punishes assumption.

If you hold foreign-origin goods without proof of lawful acquisition, the law assumes the worst — and you must fight uphill to reverse that presumption.

For importers, traders, and warehouse operators in Pakistan, the message is simple:

Keep your papers ready — your defense begins with your documentation.