PAKISTAN Versus STATE

1. MUHAMMAD AFZAL ZULLAH, J. --Leave to appeal is sought from judgment dated 20-10-1986 of the High Court of Sind; whereby Criminal Appeal of respondents Nos. 2 to 8 against judgment of their conviction under section 156(1) of the Customs Act, 1969 with sentence of 3 years R.I. and fine of Rs.25,000 each, was allowed and they were acquitted.

2. The star prosecution witness--Captain Tahir Khan who is also the complainant, deposed as follows:--

3. "On 1-6-1985 I was posted in Marine Company of Pakistan Coast Guards. I During my duty hours I received a spy information and in pursuance of such information alongwith Naib-Subedar Shoukat Gill, Naik Ali Jannan and others left the Keamari for the area in between Phitti Creak and the Clifton. One Customs representative was also with us. On reaching there we started patrolling the area. We had left Keamari on 1-6-1985 at about 2 p.m. Upto 7 p.m. we could not detect anything. At 7 p. m. I again received another information through wireless about the charas in the launch and which was likely to pass through that area. At about 7-30 p.m. we spotted a launch. We made a challenge to that launch but the launch speeded up and did not stop. We were in gun boat. We chased the launch for about 10 K . Ms. in the sea. The launch still did not stop. I therefore ordered to make warning fires at the launch. On hearing such shots the launch stopped. Due to rough sea it was not possible to check the launch in the water. I asked the occupants of the launch as to what they were carrying and they replied that they were not carrying anything and that the launch was empty. We escorted the launch to Phitti Creak where it was possible to check the same. Before searching at the Phitti Creak we served upon the occupants of the launch a notice under section 164 of the Customs Act in presence of mashirs. Naib-Subedar Shoukat Ali Gill and Naik Ali Jannan acted as mashirs as no person from the public was available there at that time. There were 7 crew members in the launch. All those 7 crews are present in Court. After serving notice we searched the launch. The search resulted in the recovery of 300 bags of charas. I seized the bags of charas and on my direction such mashirnama and inventory were prepared by one of the our members of the staff

4. 'I also arrested all the crews accused. I also served upon the accused a notice under section 171, of the Customs Act. I produce its copy as Exh. 4-E. It bears my signature and also the thumb-impressions of the accused. Initial enquiry in the matter disclosed that the owner of the launch was one Amir Shah. I then brought the launch, the property and the crews to Keamari and there I lodged the report. I produce the report as Exh. 4F... ...................

5. 'We had drawn 3 samples from the seized charas. I see 3 slabs of chars as sample present in Court. These are the same'. "

6. This deposition was supported by another similar eye-witness account and the chemical analysis of the samples which established the seized stuff as contraband canobies (charas).

7. The defence plea was of partial denial. The presence of all the accused in the launch and its having been checked and brought back to the Coast, has not been denied. The plea, however, is that nearly 5 tons of the contraband stuff has been planted on them for false implication.

8. The learned trial Judge relying on the prosecution evidence convicted d sentenced the accused as stated above.

9. In appeal the High Court noted three main arguments about discrepancies in the conduct of the raiding party as also the preparation of raid documents; the discrepancy as to who took the samples; and, the doubt regarding who supervised the raid. But without accepting or rejecting after due examination any of then, it was held that: "On count of the material contradictions ink the evidence of the various prosecution witnesses, a doubt has been created about the of the prosecution story". As a result of this observation the respondents were acquitted.

10. 'It needs to be observed that the learned Judge in the High court did not attach due importance, rather failed to notice the following features of the case:

(i) All the accused admitted presence in the launch;

(ii) The accused tried to get away by increasing the speed of the launch;

(iii) There was a chase by the raiding party for about 10 K.M.;

(iv) There was no reason for the raiding party to falsely implicate the accused;

(v) The complainant and the Chemical Examiner pointed out the same samples present in Court as a part of the seized stuff;

(vi) That the weight of the contraband stuff was too much to be planted falsely;

(vii) That the burden according to the special provisions of the Customs Act, 1969, had shifted to the accused; and

(viii) That the discrepancies noted in the impugned judgment were either minor or explainable.

11. After hearing the learned counsel we consider it a fit case for g ant of leave to appeal after condoning the delay.

12. Order accordingly.

13. Non-bailable warrants for appearance of the accused shall issue Against them.

14. S.Q./P-32/S Leave granted.