MUHAMMAD SALEEM Versus THE STATE

Muhammad Salim, Sabir Ali and Muhammad Bashir were tried by the learned Special Judge Customs, Lahore, under sections 156(1)(8) and 89 read with section 178 of the Customs Act for having smuggled into Pakistan six bags containing large cardamoms weighing 125 kilograms. The learned Special Judge, Customs, by his judgment, dated 12-6-1980, convicted the said three persons under section 156(1)(8) read with section 178 of the Customs Act and sentenced them to nine months rigorous imprisonment each with a fine of Rupees one thousand (Rs.1,000) each or in default thereof to suffer further rigorous imprisonment for two months each. The appeal (Criminal Appeal No,. 770-C of 1980) preferred by Muhammad Salim, Sabir Ali and Muhammad Bashir convicts, is now before me for disposal.

2. The brief facts of the case are that on 6-11-1978 Haji Muhammad Aslam D.S.R. Sutluj Rangers P.W.1, with Bashir Alam S.I. P.W.6, Bashir Ahmad Hav. P.W.2, Atta Rasool Naik P.W.3 and nineteen other members of the Sutluj Rangers, formed a raiding party and raided Rakh bland in the area of village Lakhoki (Police Station Kahna) at about 3-30 p.m., which was situated at a distance of about three miles from the Indo-Pakistanf border. The raiding party surrounded the Rakh and apprehended Than Singh, Dalip Singh and Jogindar Singh accused, whereas Mahal Singh, Guil Singh and Jogindar Singh managed to escape. A tractor, which was found lying near them, was taken into possession vide memo. Exh.P.A. Than Singh, Dalip Singh and Jogindar Singh accused disclosed that they had placed six bags of large cardamoms in the Dera of Muhammad Salim accused for and on behalf of the said' accused and Muhammad Sabir and Bashir Ahmad, their co-accused. The three apprehended accused then led the raiding party to the Dera of Muhammad Salim accused. Muhammad Salim, Muhammad Sabir and Bashir Ahmad, accused, were present there, who, on seeing the Rangers party, ran away. On the pointing out by the Sikh accused, six bags of large cardamoms weighing 120 kilograms, which were found hidden in the room where chaff had been stored in the Dera of Muhammad Salim accused, were taken into possession vide memo Exh.P.B. Haji Muhammad Aslam, D.S.R. P.W.1 then prepared the investigation report Exh.P.C. which was transmitted to Police Station, Kahna on 7-11-1987, on the basis of which formal F. I. R. EXh.P.C.1 was recorded at the said police station. On 17-11-1978, Muhammad Salim, Sabir Ali and Muhammad Bashir, accused were arrested.

3. A separate challan was submitted against the three Sikh accused.

4. Than Singh, Dalip Singh and Jogindar Singh accused admitted their guilt at the very outset and were convicted and sentenced under section 156(1) (8) read with section 178 of the Customs Act by the learned Special Judge, Customs, Lahore on 23-11-1978.

5. A separate challan was filed against Muhammad Salim, Sabir Ali and Muhammad Bashir, the present accused persons. They denied all the accusations that were levelled against them. They admitted that their tractor was taken into possession from their tubewell, but denied that it had been used for transporting smuggled goods. They also denied the recovery of the cardamoms from the Dera of Muhammad Salim, accused. They did not claim the smuggled goods as their property. They imputed their false involvement to the false statements made by the members of the Sutluj Rangers against them. In defence they produced Hakim Ali, Lambardar D.W.1, Abdul Majid D.W.2, Akbar Ali D.W.3 and Muhammad Ashiq D.W.4 in their defence to prove their good character.

6. I have heard the arguments of the learned counsel for the appellants and the Customs Department and have perused the record. The evidence as regards the recovery of the smuggled cardamoms from the Dera of Muhammad Salim, appellant, is furnished by Haji Muhammad Aslam D.S.R. P.W.1, Bashir Ahmad Hav. P.W.2, Atta Rasool Naik P.W.3 and Bashir Alam S.I. P.W.6. Their account of the version already stands reproduced in para. 2 above and need not be repeated. All the four witnesses are independent witnesses and nothing has been brought on the record to show that anyone of them had any enmity or bore any ill-will against any of the appellants. The statement of Haji Muhammad Aslam D.S.R. P.W.1 that Than Singh, Dalip Singh and Jogindar Singh, the three convicted accused, had disclosed that they had placed the six bags of large cardamoms at the Dera of Muhammad Saleem, appellant, for and on behalf of the said appellant and Muhammad Sabir and Bashir Ahmad, co-appellants, cannot be accepted for three reasons. First, Haji Muhammad Aslam D.S.R. P.W.1 is the sole witness who deposes to this fact, whereas the remaining three witnesses do not corroborate him. Second, the statement appears to be of a confessional nature and since it has been made to an officer of Sutluj Rangers, whose position is no less than that of a police officer, the same is inadmissible under Articles 38 and 39 of the Qanoon-e-Shahadat. Third and last that since such statement made by the Sikh convicted accused does not stand proved, the Court cannot take into consideration the said statement as circumstantial evidence against the present appellants. In this view of the matter, the case, at best, stands proved under section 156(1)(89) of the Customs Act against Muhammad Salim, appellant, from whose Dera smuggled cardamoms were recovered and not against Sabir Ali and Muhammad Bashir, appellants even assuming they were seen running away from the spot on seeing the raiding party. The prosecution has brought no convincing evidence to show that Sabir Ali and Muhammad Bashir, appellants had any prior knowledge or information that the smuggled cardamoms were lying concealed in the Dera of Muhammad Salim, appellant, when they were recovered, and that they had some stake or interest in the goods. The mere fact that Sabir Ali and Muhammad Bashir, appellants, were found together with Muhammad Salim, appellant just before the raiding party happened 1 to come to the Dera of Muhammad Salim, appellant, and they ran away with Muhammad Salim, appellant, on seeing the raiding party, does not unequivocally establish their criminal involvement with Muhammad Salim, appellant, in respect of the possession of the smuggled goods. Sabir Ali and Muhammad Bashir, appellants are, therefore, entitled to the benefit of doubt.

7. As regards the case of Muhammad Salim, appellant, there is no evidence to show that the said appellant was served with any notice under section 171 of the Customs Act when he was arrested, showing the grounds of his arrest and seizure of the smuggled cardamoms which had been effected earlier. Service of the notice under section 171 of the Customs Act is mandatory. See Abdul Rauf v. The State 1983 P Cr. L J 19. In these circumstances, the arrest of Muhammad Salim, appellant, and the seizure of the smuggled goods from his Dera appears to be illegal. His conviction cannot, therefore, be legally sustained. He is also, therefore, entitled to an acquittal.

8. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Muhammad Salim, Sabir Ali and Muhammad Bashir, appellants, is set aside. All the three appellants are on bail. Their bail bonds shall stand discharged. The fine, if any paid by the appellants, shall be refunded to them.

S.A./M-621/1 Appeal accepted.