HAFEEZ-UR-REHMAN Versus THE STATE

1. M. R. KHAN, J.-- ‑The appellant and one Ahmad Ali Khan, along with four others, were tried by Mr. Mahmud Khan, a Magistrate specially empowered under section 30 of the Code of Criminal Procedure, for an offence under item 8(a) in the Schedule to section 167 of the Sea Customs Act, 1878 read with section 9 of the Land Customs Act, 1924. Of them, the appel lant and Ahmad Ali Khan were convicted for the offence and sentenced to rigorous imprisonment for 3 years, each and to pay a fine of Rs. 5,000, each and, in default of payment of fine, to undergo further rigorous imprisonment for l years, each. The remaining four co‑accused were, however, acquitted. Against their conviction and* sentences, the convicted persons preferred two separate appeals in the Court of the Sessions Judge, Lahore. Both the appeals were dismissed. The convicted persons then filed two separate criminal revisional applications in the High Court of West Pakistan, Lahore, against the judgment of the learned Sessions Judge. A learned Single Judge of the High Court dismissed both the criminal revisions. Of the two convict ed persons, the appellant alone made a petition to this Court for special leave to appeal.

2. The prosecution case was that on the 22nd July 1962, between 4 and 5 p.m., Jamadar Khayal Muhammad (P. W. 2), Lance Naik Muhammad Awaz (P. W. 3) and Havildar Rifat Nabi (P. W. 6) of the Sutlej Rangers Force stationed at Wahga Border Post, Lahore were on patrol duty. As they reached the railway level crossing on the Ravi Bund, they found the gate at the level cross ing closed for a passing train. The gate‑man (P. W. 1) was on duty there at that time. In the meantime, a car bearing No. LEB‑2121 coming from Wahga side stopped at the level crossing as the gate was closed. This car belonged to Ch. Eid Muhammad (P. W. 4) and was driven at that time by Ahmad Ali Khan, the appellant's co‑accused. The patrol party saw that the appellant was sitting on the front seat by the side of Ahmad Ali Khan and that four other persons were sitting on the rear seat of the car. As the car stopped, P. W. Muhammad Awaz told Jamadar Khyal Muhammad that the persons sitting on the rear seat were smugglers whereupon Jamadar Khayal Muhammad asked the driver Ahmad Ali Khan to open the boot of the car to enable them to conduct a search for any smuggled goods. Ahmad Ali Khan had the keys of the car with him. He opened the boot of the car wherefrom 7520 tolas of tilla (gold‑thread) of Indian origin worth Rs. 8,480 were recovered and seized. Meanwhile, the four persons sitting on the rear seat of the car made good their escape, but they were chased by P. W. Muhammad Awaz. As one of the fleeing persons fired a revolver shot, Muhammad Awaz gave up the pursuit and came back. Ahmad Ali Khan and the appellant were apprehended on the spot. Jamadar Khayal Muhammad then wrote out a report addressed to the S. H. O., Manawan Police Station which was later sent to Police Station Misri Shah as the place where the car was seized with the offending goods was found to be within the territorial jurisdiction of the latter Police Station.

3. In this case, the prosecution examined nine witnesses includ ing Jamadar Khayal Muhammad, Lance Naik Muhammad Awaz and Havildar Rifat Nabi. Both the Courts of fact found on evidence that Ahmad Ali Khan was driving the Car No. LEB‑2121 at the material time; that the appellant was then sitting by his side on the front seat; that the four persons who had sat on the rear seat of the car fled away; that Ahmad Ali Khan on being asked opened the boot of the car and that 7520 tolas of tilla were recovered therefrom. It was further found by both the Courts that the said car belonged to Ch. Eid Muhammad and that Ahmad Ali Khan was his driver. Having regard to the evidence of Mr. Manzoor Ali, Customs Inspector, Wahga, the Courts further arrived at the concurrent finding that the seized tilla was of Indian origin and that its importation into Pakistan without licence or permit was prohibited. The appellant and his co‑accus ed failed to produce any import licence or permit.

4. The appellant pleaded not guilty to the charge and took the plea that he was arrested by the Rangers while he was returing at the time of the occurrence after fishing in the river Ravi. Ahmad Ali Khan, the co‑accused pleaded alibi. These pleas were rejected by both the trial Court and the learned Sessions Judge for which they gave convincing reasons. Accordingly, both the appellants and his co‑accused, in view of the findings of fact, were found guilty of the offence for which they were tried.

5. The findings of fact on which the conviction of the appellant was based were unsuccessfully challenged in the High Court. But the real point on which his criminal revision was pressed was that the appellant, in the facts of this case, could not be taken to be a person "concerned in the offence" and, as such, his conviction under section 167(8a) of the Sea Customs Act was bad in law. This did not find favour with the learned Judge of the High Court. In the petition for special leave, the correctness of the view taken by the learned Judge was challenged. Leave was, accordingly, granted to consider‑ "whether, on a true appreciation of all the facts and circum stances, it could be held, beyond reasonable doubt, that the petitioner was concerned in the offence of importation of prohibited articles, viz., the tills found in the boot of a car in which he was a passenger."

6. In order to appreciate the point involved, it is necessary to reproduce the provisions of item 8(a) of section 167 of the Sea Customs Act. The said item 8(a), as it was in force at the material time, ran thus:

7. Offences

8. Section of this Act to which offence has reference

9. Penalties

10. 8(a). If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under this Act, be imported into or exported from Pakistan contrary to such prohibition or restriction;

11. If any attempt be made so to import or export any such goods; or . . . .

12. 18 & 19 such goods shall be liable to confiscation, and any person concerned in the offence shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding ten years and not less than three months, and shall also be liable to fine not exceed ing five times the value of the goods.

13. Whether a person is or is not concerned in an offence coming under item 8(a) of section 167 depends upon the facts and circum stances of each case. Direct evidence as to the actual unauthorised importation of contraband goods may be available in rare cases. Where such direct evidence is available, no difficulty arises as to who are the persons concerned in the offence. Where, however, direct evidence is not available, the persons concerned in the offence are to be ascertained having regard to the facts and the attending circumstances of the case. In the instant case, the motor Car No. LEB‑2121 belonging to Ch. Eid Muhammad was being driven at the material time by his driver Ahmad Ali Khan. The appellant was then sitting by his side on the front seat of this car. His plea that he was arrested while returning after fishing in the river Ravi was rejected by the Courts with convinc ing reasons. The appellant had no explanation as to why he boarded the said car and sat by the side of the driver. He was apprehended on the spot along with the driver. Moreover, it appears from the cross‑examination of P. W. 2 Jamadar Khayal Muhammad that both the appellant and the driver Ahmad Ali Khan came towards the rear of the car to open up its boot as the patrol party wanted to search it. These facts give rise to a reasonable inference that the appellant was in league with the driver Ahmad Ali Khan and knew that the contraband rills was being carried in the boot of the car without any licence or permit. The learned Judge of the High Court, therefore, rightly held that the appellant was also concerned in the offence.

14. Learned counsel for the appellant submits that as the place where the contraband tilla was seized was about 15/16 miles away from the Wahga Border between India and Pakistan, the importation of the goods had been completed before the seizure thereof and, as such, the offence does not fall under item 8(a) of section 167 of the Sea Customs Act and the appellant cannot be said to be a person concerned in the offence. According to the learned counsel, the charge, if any, on the facts of this case should have been one under item 81 of the said section 167, but no charge thereunder was framed. There is really no substance in this contention. It is true that the contraband tilla was seized at a place which is about 15/16 miles away from the international border between India and Pakistan. But this distance can be easily covered by a motor car within 20 minutes or so. That being so, the tilla in question was, in fact, seized in the course of its unauthorised importation into Pakistan. According to the evidence of the Customs Inspector, tilla like the tilla seized in this case is available in the market in Pakistan. That being so, there might have arisen a different consideration, had the tilla in question been seized from any place in the market. As, however, the tilla was seized on the high way while it was being surrepti tiously carried in a motor car from the side of the international border towards the city of Lahore, the reasonable conclusion is that the same eras unauthorisedly imported by the appellant and his accomplice.

15. The contention of the learned counsel that the charge should have been one under item 81 of section 167 cannot at all advance the case of the appellant. The tilla seized from the boot of the car was necessarily in the possession of Ahmad Ali Khan who was driving the car and holding the keys of the boot of the car. It has been already found that the appellant had knowledge about the tilla carried in the boot of the car. The charge framed against the appellant and his co‑accused Ahmad Ali Khan attributed possession of the tilla to them. Thus, the essential ingredient of the offence under item 81 of section 167 was also there in the charge. The offences under item 8 (a) and item 81 of the said section are cognate offences, and the penalties for both these offences are the same. Hence, both the appellant and Ahmad Ali Khan could be convicted under item 81 as well, although the offence mentioned in the charge was not expressly stated to be one under that item.

16. Thus, there is no merit in this appeal. We, accordingly, dismiss the appeal. The appellant who was enlarged on bail by this Court shall now surrender to his bail for serving out the remainder of the sentence.

17. S. Q. Appeal dismissed.