SASTA ALIAS SASTI Versus THE STATE
Sasta alias Sasti and Hassan Masih were tried by the learned Special Judge Customs, Lahore, under section 156(1)(8) read with section 178 of the Customs Act for attempting to smuggle opium to India across the Pakistan border. By his judgment, dated 4-11-1986, he convicted both the accused under the said section and sentenced them to one year's rigorous imprisonment each and to pay a fine of Rupees five thousand (Rs.5,000) each or in default thereof to undergo further rigorous imprisonment for one year each. The benefit of section 382-B, Cr.P.C. was also granted to Sasta, accused. The appeal (Criminal Appeal No. 676-C of 1986) preferred by Sasta alias Sasti, convict, against his conviction and sentence, is now before me for disposal.
2. At this stage it may be mentioned that Hassan Masih, co-accused, absented himself on the day when the judgment was announced by the learned Speciai Judge, Customs. Since no appeal has been preferred by him, it appears that he is still absconding.
3. The brief facts of the case are that on 4-7-1983 a Nakabandi was held near border Posts Nos. 192/16 and 192/17 within the area of Police Station Ganda Singh Wala at a distance of about 1,200 yards from the India-Pakistan border. At 10-30 p.m., two persons carrying goods on their heads were observed going towards India. They were challenged, whereupon they fired two rounds with revolver at the Nakabandi party, The Satluj Rangers fired back in self-defence. Both the persons started running. In the light of the torch which was flashed on them from a distance of 20/25 yards, they were identified as Sasta alias Sasti and Hassan Masih, accused. Both the accused were successful in running away. However, on search of the place a bag containing opium weighing four killograms and a Desi carbine were recovered from the spot, which were taken into possession vide recovery memo. P.A. One gram of opium was drawn from the seized opium and sealed for the purposes of being sent to the office of the Chemical Examiner. Muhammad Akhtar Inspector P.W.1 sent the complaint Exh.P.B. to Police Station Ganda Singh Wala, on the basis of which formal F.I.R. Exh.P.B./1 was recorded.
Both the accused at the trial denied the accusations that were levelled against them, including the recoveries alleged to have been effected from the spot. They did not claim the property recovered as theirs'. Both of them stated that the Customs officer wanted both of them to indulge in smuggling and on their refusal, they were involved in the case falsely.
4. I have heard the arguments of the learned counsel for Sasta, appellant and the learned Standing Counsel for the Federal Government and have perused the record. The evidence as regards the occurrence is furnished by Muhammad Akbar Inspector P.W.1 and Muhammad Akram Lance Naik P.W.3. Their version of the occurrence already stands reproduced in para. 2 above and need not be repeated. Both of them clearly stated that the former had a torch with him, through the light of which they had identified the appellant and his co-accused, who were about 20 yards away from the Nakabandi party when the torch light was flashed on them. Both stated that they had identified Sasta, appellant, and Hassan Masih, co-accused, at the spot. The former stated in cross-examination that he had seen Sasta appellant and his co-accused thrice before the incident, whereas the latter stated in cross-examination that he knew both prior to the occurrence. Both denied the suggestion that they had involved the appellant and his companion at the instance of one Dilawar, who was a tout of the Rangers. On behalf of Sasta, appellant, it is submitted that the identity of the appellant was doubtful, due to the night being dark and the light of the torch not being sufficient to identify them, that since the two accused were not previous convicts it was not possible for any of the witnesses to have known them by sight, as it was impossible for them to have known every body residing in their vast area and that since only one bag containing opium was recovered from the spot and it has not been asserted that the same was being carried by Sasta, appellant, on his head, the appellant cannot be held guilty either of smuggling or attempting to smuggle the same. Both the witnesses have clearly stated in their cross- examination that they knew the two accused previously. They also identified them from a distance of 20/25 yards. The torch carried by the Rangers is a very powerful one and if a person is known, his identification is possible in the light of the said torch. None of the witnesses is inimical to the appellant nor anything in that nature was suggested to them. It cannot, therefore, be said that the appellant or his companion was not identified. As regards the suggestion that the appellant is not liable for any offence, because nobody has deposed that he was the person carrying the bag containing four kilograms of opium on his head, the same cannot be accepted. Section 178 of the Customs Act makes liable a person if he is found in company together with another and both or either of them are found having goods liable to confiscation under the Act, if it can be shown that he had knowledge that the goods which the other was carrying were liable to confiscation. In the instant case, the appellant and his companion both were proceeding towards India, with something on their heads. When challenged, one of them fired two rounds. When the Rangers fired in self-defence, both started running and threw the bag containing four kilograms of opium and the carbine. The only natural inference that can be drawn is that both the accused had knowledge that both or one of them was carrying smuggled goods. It cannot, therefore, be said that the appellant is not guilty of any offence. For all these reasons, the submission of the learned counsel for the appellant has no merit and is rejected. The ocular account being natural, straightforward and convincing, has the ring of truth. I would hold that the two witnesses did see the appellant and his companion attempting to smuggle opium to India and that when an attempt to apprehend them was made, they fired back and fled, leaving a bag of opium and a carbine behind. The case of the prosecution, therefore, stands proved against the appellant.
5. On the question of sentence, it has been urged that their appellant had already undergone detention as an under trial prisoner from 11-10-1983 to 13-11-1983 and as a convict from 4-11-1986 to 8-12-1986 and that since he is not a previous convict and this was his first offence, that the sentence may be reduced to that already undergone. I have given my anxious consideration to this request. Sasta, appellant, has suffered detention for two months. It is not clear from the record that he was the actual owner of the opium or was otherwise a man of means, who had the financial ability to conduct smuggling operations in opium. The probability that he was merely a carrier, cannot be excluded. Since this is his first offence, I would reduce the sentence of Sasta, appellant, to that already undergone, but would increase the fine payable by him from Rupees five thousand (Rs.5,000) to Rupees seven thousand (Rs.7,000).
6. For the foregoing reasons, whilst maintaining the conviction of Sasta, appellant, under section 156(1)(8) read with section 178 of the Customs Act, I reduce his sentence to that already undergone, but direct that he will pay a fine of Rupees seven thousand (Rs.7,000) or in default thereof to undergo simple imprisonment for two months.
7. This appeal, therefore, stands partly accepted, in terms of reduction in the sentence of imprisonment, as stated above.
8. Sasta alias Sasti, appellant, is on bail. Subject to the payment of the fine of Rupees seven thousand (Rs.7,000) imposed on him, within a reasonable time to be communicated to him, his bail bond shall stand discharged, failing which, he shall be taken into custody to serve out the sentence imposed on him in default of payment of fine.
S.A./S-206/L Sentence reduced.