STATE Versus ABDUL RASHID
Respondents Abdul Rashid and Shaukat Hussain Jamot were tried by Special Judge (Customs and Taxation) Karachi, for the offence under section 156(1) (8) of the Customs Act, 1969, who found them not guilty and vide judgment dated 26th May, 1991, acquitted them. This judgment is the subject‑matter of the present acquittal appeal filed under section 185‑F of the Customs Act, 1969.
2. A credible information was received by the Headquarters 2 Battalion Pakistan Coast Guards, Karachi, that an international gang of narcotics smugglers will try to smuggle narcotics in huge quantity out of Pakistan from Gizri Coast area. Acting on this secret information all routes to Gizri Coast were kept under strict surveillance and on 4th November 1986 a patrol party headed by Lieut‑Col. Muhammad Iqbal left for Gizri area at 12‑30 a.m. At about 2‑30 a.m. a vehicle was spotted near Misri Shah Chowk which was moving towards seashore flicking its lights. The vehicle was chased, whereupon the persons sitting in it opened fire towards the members of patrolling party, Taking the advantage of darkness the culprits were successful in escaping leaving the Datsun Pick‑up on the spot. The search of Pick‑up led to the recovery of 880 Kgs. of contraband charas. Six samples of contraband charas were drawn. On return to Headquarters Lieut‑Col. Muhammad Iqbal lodged F.I.R. on behalf of State. The investigation revealed that the contraband charas belonged to respondents Abdul Rashid and Shaukat Hussain Jamot. After usual investigation the above respondents were sent up to stand trial for the said offence alongwith co‑accused Muhammad Iqbal (since dead).
3. The respondents pleaded not guilty to the charge framed under section 156(1)(8) of the Customs Act, 1969, and claimed a trial. At the trial the prosecution examined Lieut‑Col. Muhammad Iqbal (P.W.1), Naik Muhammad Ramzan (P.W.2), and Major Muhammad Tarique (P.W.3).
4. In their statements recorded under section 342, Cr.P.C. the respondents have disputed the case of the prosecution professing ignorance. They did not step into the witness box and also led no defence.
5. On the assessment of evidence available on record the learned Special Judge found the respondents not guilty and acquitted them accordingly.
6. I have heard Mr. Nazar Hussain Dhoon, learned counsel for the appellant and have gone through the record of the case carefully.
7. There is no iota of evidence on record connecting the respondents with this crime. The learned Special Judge examined the evidence carefully and found the respondents not guilty for the following reasons:‑
"Muhammad Iqbal Seizing Officer in his deposition stated about seizure of 880 Kgs. Charas. He did not name any of the accused in his deposition. Therefore, he was not cross‑examined by the defence counsel. Muhammad Ramzan mashir also deposed about recovery, but did not involve any of the accused of this case. Therefore, for this reason, he was also not cross‑examined by the defence counsel. Muhammad Tariq I.O. in cross‑examination stated, that he does not remember, if he had seized or not the transfer letters/documents in respect of the vehicle in question. He admitted, that nothing was secured on the pointation of present accused.
It is a case of no evidence. Nothing has been brought on record to show, that any of the accused was involved in the commission of this crime. Only evidence which has been brought on record, is recovery, which by itself is not enough for recording finding against the accused. Besides, the investigation was not conducted properly. It is not proved, that notice under section 171 of the Customs Act was served upon accused Abdul Rashid. Even, it is not proved, that seized stuff was charas, as Chemical Examiner has not been examined."
8. Before an acquittal appeal is admitted to regular hearing it must be shown that the impugned judgment is unreasonable, perverse and manifestly wrong. In fact there is no evidence worth mentioning on record to even faintly connecting the respondents with this crime.
9. Even otherwise the prosecution case even if‑accepted does not make out a case of "attempt" to smuggle contraband charas. It could be a case of "preparation" alone, which by itself is not sufficient to convict an accused for the offence under section 156(1)(8) of the Customs Act, 1969. The case of Abdul Ghaffar Khan v. The State, reported in 1991 MLD 1823, is a direct authority on this subject wherein following observations were made:‑
"As a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be shown first, to have had an intention to commit the offence,‑ and secondly, to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to hay stack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. (See the case of Malkiat Singh v. State of Punjab, reported in 1961(2) S.C.R. 662, referred in the Law of Central Excise, Customs, Gold Control & Allied Laws by O.P. Tewari, 1989 Edition)".
10. The cases reported as Abdul Majid v. The State 1973 SCMR 108, Crown v. Muhammad Rafique Safdar and others PLD 1952 Sindh‑ 28, Central Board of Revenue and another v. Khan Muhammad PLD 1986 SC 192 and Hyder Khan and another v. The State 1991 PCr.LJ 1841 also lend support to this view.
11. It is a case of immature investigation. The respondents were in fact prosecuted on the basis of no evidence. The appeal is, therefore, wholly D misconceived and is dismissed in limine .
12. By a short order, dated 15‑3‑1992 I have dismissed this appeal in limin and these are reasons for the said order.
H.B.T./S‑895/K Appeal dismissed.