GUL NABI Versus THE STATE

Gul Nabi and Kafait‑ur‑Rehman, appellants were tried by the learned Special Judge, Customs, Lahore, under section' 156 (1) 89 read with section. 178 of the Customs Act, 1969, for being found in, illegal possession of Charas and opium. The learned .Special Judge, Customs, by his judgment dated 6‑12‑1980, convicted Gul Nabi and Kafait‑ur‑Rehman, accused, under both the said sections and sentenced them to six years rigorous imprisonment each with a fine of Rs.40,000 each or in default thereof to undergo further rigorous imprisonment for one year each. The joint appeal Cr. A. No.1340‑C of 1980) preferred by both the convicts is now before me for disposal.

2. The brief facts of the case are that on 27‑10‑1977, the DIG Police directed Ghulam Haider Malik, D.S.P. C.I.A. P4.4 to affect a raid to apprehend smugglers bringing narcotics to Lahore. Ghulam Haider, D.S.P. P.W.4 formed a raiding party consisting of himself, Fazal Muhammad inspector of. Police P.W.5 and 38/40 other police officials. He affected picket party at four places, namely, two at both the bridges of the River Ravi, at the round‑about of Shahdara and on the road loading to the Tomb of Jahangir. Ghulam Haider Malik, D.S.P. P.W.4, with some police officials, picketed himself on the Ravi Bridge. He detailed his driver to take his jeep containing the wireless set to Kamokee and to inform him from there about the arrival of the 'suspected car No. KAN 5352: All the pickets were formally installed by 300/400 P.M. At about 5.00 p.m. the driver of the jeep sent a wireless message to operator at new Ravi Bridge that the suspected car was arriving towards Lahore and was being followed by him. On receipt of this message, Ghulam' Haider Malik, D.S.P. P.W.4 alongwith a few police officials reached the Shahdara round‑about to prevent the suspected car from escaping towards Lyallpur. In the meantime, the suspected car was seen approaching. It turned towards old Ravi Bridge, but on seeing that a picket party was posted there. It turned towards the Jahangir's. Tomb. There the suspected car was cornered. Gul Nabi, Kafait‑ur‑Rehman, accused, were both in the said car. They tried to run away, but they were apprehended. The car was searched and from its rear seat six bags of Charas each weighing one maund and three hundred and eighty‑eight packets of Charas each weighing one seer were recovered and from its dicky eight tins of Charas "Burada" and one pouch containing 7 seers of opium were recovered. These items and the suspected car were taken into possession vide recovery memo. Exh. P. B. Ghulam Haider, D.S.P. P:W.4 prepared there sealed parcels containing sample of the Charas found in the bags, Charas Burada found in the tin and opium found in the pouch. These samples he delivered to Fazal Muhammad Inspector of Police P.W.5. Ghulam Haider D.S.P., P.W.4 prepared a raid report Exh. PA, which he despatched to Police Station Shahdara, on the basis of which formal F.I.R. Exh. PA/1 was recorded.

2. All the accused denied the accusations that were levelled against them, including the recoveries effected at their' instance. Both of them claimed that they sold underwears, which they purchased from Landa Bazar, and that on the day of incident they had gone towards the Jahangir's' Tomb for walk, when they were apprehended. They did not produce any witness in defence.

4. I have heard the arguments of the learned counsel for the appellants and the Custom Authorities and have perused the record. The evidence as regards the apprehension of the appellants on the road leading to Jahangir's Tomb with the suspected car KAM No. 5352 which they were driving and which contained narcotics, is furnished by Ghulam Haider Malik, D.S.P. P.W.4 and Fazal Mahmood. Inspector of Police P.W.5. The narration of the occurrence already stands reproduced in para two above. Nothing has been brought out in the evidence to show that any of the witnesses had any particular reason to depose falsely against the appellants or that they were otherwise inimical to or had animosity with any of them. Their evidence therefore conclusively establishes the apprehension of the appellants with the suspected cat containing the narcotics. However, nothing has come on the record to show that the narcotics was of foreign, origin or had been smuggled into the country and on which no duty had been paid. In the absence of such evidence the charge under section 156(1) 89 cannot be sustained Taza Khan and another v. The State (1984 P Cr. L J 1408). Further, the Chemical Examiner's report Exh. PD was not put to the appellants in their statements recorded under section 342, Cr.P.C. Still further the samples which were taken and sealed were not taken under a recovery memo. No one Knows how they were sealed and what seal impressions were affixed thereon. These illegalities vitiate the trial. In this view of the matter, the conviction of the appellants cannot be maintained.

5. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Gul Nabi and Kafait ur‑Rehman, appellants, are set aside. The appellants are on bail. Their bail bonds shall stand discharged.

6. Before concluding, I would like to mention that the ' A' part of the High Court file having been lost the same has been re constructed by the office but without any order after 28‑2‑1981. Rana Ejaz Ahmad, Advocate has supplied a photo copy of this Court's order dated 28‑2‑1981 whereby both the appellants were released on bail, which photo copy has been placed on the record.

S.A../G‑141/L Acquittal ordered