NOOR AHMAD Versus THE STATE Muhammad Rafiq Iqbal , Sh. Dtaqbool Ahmad and Mian Qamar-uz-Zaman

A challan against Noor Ahmad, Mohammad Nazir, Rahmat, Ashiq and Mohammad Iqbal was sent up under section 173 Cr.P.C. before the Special Judge, Customs, Lahore, to face their trial under section 156 (1)(8) read with section 178 of the Customs Act for smuggling cardamoms into Pakistan. Before the charge could be framed, Rehmat, Ashiq and Mohammad Iqbal were acquitted under section 265-K Cr.P.C. Noor Ahmad and Mohammad Nazir stood trial. Midway, Mohammad Nazir was also acquitted under section 265-K Cr.P.C. Ultimately, the learned Special Judge, Customs, by his judgment dated 12-10-1980, convicted Noor Ahmad under section 156 (1) of the Customs Act and sentenced him to two years' rigorous imprisonment with a fine of Rupees Two Thousand (Rs.2,000) or in default thereof to suffer further simple imprisonment for three months. The appeal (Cr.A.1173 of 1980) preferred by Noor Ahmad, convict, against his conviction and sentence, is now before me for disposal.

2. The prosecution case in brief is that Shan-e-Raza, Inspector, Chanab Rangers PW2 received a secret information regarding certain persons who had crossed 'over to India and would be returning with smuggled goods. He constituted a raiding party on 1-4-1979 in the evening comprising of Mohammad Saeed Ahmad Hav. PW4, Anwar Hussain Sepoy and Mohammad Ghazan L.Nk. The raiding party picketed near border post No.76 within the area of village Chakrali. At about 7-00 p.m. Noor Ahmad and Mohammad Nazir, accused, were seen coming from the side of India. They were surrounded and apprehended. They were brought to the company headquarters. There Noor Ahmad, accused, disclosed that he would lead the party to his house, where smuggled goods were kept. The raiding party then brought the accused to village Chakrali. At the said village Major Riaz-ul-Haq, Company Commander, Nawab Khan Inspector Rangers PW3, Yar Mohammad Hae. PW7, Sabir Hussain L.Nk. PW6 had also arrived there. Shan-e-Raza, Inspector PW2 handed over both the accused to Major Riaz-ul-Haq Company Commander to effect recoveries from the accused. Noor Ahmad, accused, led the Rangers to his house. Nawab Khan Inspector Rangers, PW3 alongwith Yar Mohammad Hav. PW7 and Sabir Hussain L.Nk PW6 and both the accused, went inside the house of Noor Ahmad in village Chakrali. Three bags of cardamoms weighing 72 kilograms valuing Rs.25,000 were recovered from underneath quilts from a room in the house. The said cardamoms were taken into possession vide recovery memo Ex.PB, which was signed by Nawab Khan Inspector PW3, Sabir Hussain L.Nk. PW6 and Yar Mohammad Hav. PW7. Thereafter, Shan-e-Raza Inspector PW2 forwarded his investigation report Ex.PA to Police Station Narang Mandi, where formal FIR Ex.PA/1 was recorded by Wali Mohammad SHO PW1 on 2-4-1979.

3. The accused denied all the accusations that were levelled against them, including the recovery alleged to have been made at his instance. He stated that village Chakrali was about eight miles from the Indian Pakistan border and that the case had been falsely registered against him at the instance of witnesses who had made false statements. He denied that the case property belonged to him. He pleaded innocence and asserted that the Rangers had recovered the cardamoms from a deserted Haveli of Umer Mir and had falsely involved him in the case. He produced Mohammad Ismail DW1, Sardar Ali DW2 and Jormal DW3 in his defence, who stated that the cardamoms had been recovered from the deserted house of one Noor Mohammad Mayo and that since Noor Ahmad, accused, lived at a distance of ten karams from the said place of recovery, the cardamoms were falsely planted upon the accused.

4. The learned trial Judge, relying upon the evidence of the Rangers officials both as regards the arrest of the accused and his leading to the recovery of smuggled goods from his house, convicted and sentenced him, as stated in para 1 above.

5. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The arrest of Noor Ahmad, appellant, on 1-4-1979 at about 7-00 p.m. is proved by Shan-e-Raza Inspector Rangers PW2 and Mohammad Saeed Ahmad Hav, PW4. The recovery of the smuggled cardamoms at the instance of Noor Ahmad, appellant, from his house, is proved by Nawab Khan Inspector Rangers PW3, Sabir Hussain L.Nk. PW6 and Yar Mohammad Hav. PW7. Their narration of the events already stands reproduced in para 2 above and need not be repeated. On behalf of the appellants the following submissions have been made with regard to their testimony. First, that no search warrants were obtained by the Rangers under Sections 162/163 of the Customs Act, as such, as the search carried out by them was illegal. Second, that there are material contradictions in the testimony of the witnesses as regards the recovery. In this connection it is submitted that search was not witnessed by Shan-e-Raza Inspector PW2 and Mohammad Saeed Ahmad Hav. PW4 and that though Nawab Khan Inspector stated that when his group went to village Chakrali, Shan-e-Raza Inspector Rangers PW2 with his group were already present, whereas Yar Mohammad Hav. PW7 (of the group with Nawab Khan Inspector PW3) stated that they reached before the arrival of Shan-e-Raza and his party. Third, that the case property was not produced in Court. Fourth, that the cardamoms recovered from the house of Noor Ahmad were not goods exclusively in his possession. In this connection, it is submitted that Sabir Hussain L.Nk. PW6 clearly stated that a woman was sitting on a cot in the courtyard of the house of Noor Ahmad, appellant, when the recovery was made. Fifth and last, that since the appellant was not caught bringing the cardamoms from the territory of India, when he was apprehended, no offence under section 158(1) of the Customs Act stands made out. As regards the first submission, sections 161 and 163 of the Customs Act are not applicable to the instance case. Noor Ahmad, appellant, was arrested near border post No.76 and led to village Chakrali, which is also within the border belt, as is apparent from the statements of Sabir Hussain L.Nk PW6 and Yar Mohammad Hav. PW7. The arrest and seizure were effected by the Pakistan Rangers Naka bandi party led by Shan-e-Raza, Inspector, Pakistan rangers. An Inspector of Pakistan Rangers has powers to effect arrest and seizure in the border belt within five miles of the border without warrant by virtue of Notification of the Central Board of Revenue No. S.0.R. 29(1)73, dated 3-1-1973, read with sections 163(4) and (5) of the Customs Act. Nothing, therefore, turns on the first submission raised by, the learned counsel for the appellant. With regard to the second submission, there is no material contradiction with regard to the recovery of the cardamoms from the house of the appellant. Since both the groups of persons proceeded to village Chakrali, one which was headed by Shan-e-Raza Inspector PW2, who? had originally arrested the appellant, and the second headed by Major Riaz-ul-Haq, Company Commander (given up PW), which had proceeded from Narowal and joined the first group at village Chakrali itself, the fact that nobody from the first group witnessed the recovery of the cardamoms from the house of Noor Ahmad, appellant, does not defeat the recovery. In fact it appears that the first group handed over the two accused to Major Riaz-ul-Haq, Company Commander, of the second group, so that he could attend to the recoveries. This explains why Nawab Khan Inspector PW3. Sabir Hussain L.Nk. PW6 and Yar Mohammad Hav. PW7 of the second group witnessed the recoveries. The fact as to which group first reached village Chakrali does not destroy the prosecution case. All the witnesses being disinterested and having no enmity or animosity with the appellant, their testimony cannot be discarded. Nothing therefore, turns on the second submission raised by the learned counsel for the appellant. With regard to the third submission, Man Shuja-ul-Haq Inspector Rangers PW5, who was Incharge of the Rangers Ware House, clearly proved that 72 kilograms of cardamoms were deposited in the Rangers Ware House under serial No.231, which were auctioned under the order of the Court on 16-6-1979, regarding which entry Ex.PD was made in their register. With regard to the fourth submission, nothing has come on the record to show that Noor Ahmad was living in the house, from where the cardamoms were recovered, with anybody else. The fact that some woman was found sitting on a cot in the courtyard of his house, when the recovery was made, does not make her a lady of the household. In the absence of any proper evidence to show that anybody else was also living with the appellant in the house in question, nothing turns on this submission. In fact the evidence shows that the house of Noor Ahmad was no more than a room and a small courtyard and according to Sabir Hussain L.NK. PW6, there were household effects of Noor Ahmad, appellant, alone in the room in question. It is, therefore, clear that Noor Ahmad alone was the sole male occupant of the house in question and the recovery of so large a quantity as 72 kilograms of cardamoms itself shows that he alone was in possession of the same. With regard to the last submission, namely, that no offence under section 156 (1)' (8) of the Customs Act stands made out, I cannot agree with the learned counsel for the appellant in this respect. The cardamom were recovered from his house, which is situated in 'the border belt, i.e. within five miles from the border. The cardamoms were in a large quantity, sufficient to throw the onus on the appellant to show under what lawful authority he held such a huge quantity. He did not discharge the onus. A presumption would, therefore, arise that they were cardamoms smuggled into Pakistan. Had the house of the petitioner been situated outside the border belt, such a presumption could not have been drawn. In these circumstances, this submission is rejected. The appellant appears to have been properly convicted under section 156 (1)(8) of the Customs Act.

6. On the question of sentence it is submitted that the appellant has undergone the agony of protracted trial lasting for more than a year and half. If is further submitted that the present appeal having been admitted in 1980, has now come up for hearing after almost seven years and the appellant has suffered the mental agony of its apprehended dismissal for this long period of time, which alone is sufficient punishment. Learned counsel for the appellant relies upon Muhammad Shafiq and others v. The State (1986 P.Cr.L.J. 851). It is, therefore, submitted that the sentence of imprisonment of the appellant be reduced to that already undergone. Learned counsel for the department does not seriously oppose this request, but prays that the sentence of fine be enhanced to adequately punish the appellant for the offence committed by him. Taking all circumstances into consideration and particularly the fact that the present appeal has come up for hearing after almost seven years, I would reduce his' sentence of imprisonment to that already undergone. Whilst, therefore: maintaining the conviction of Noor Ahmad, appellant, under section 156 (1)(8) of the Customs Act, I sentence him to the term of imprisonment already undergone by him, but would increase his fine from Rupees Two Thousand (Rs.2,000) to Rupees Five Thousand] (Rs.5,000). In case the appellant does not pay the fine, he shall suffer simple imprisonment for six months.

7. For the foregoing reasons, this appeal stands partly accepted, in terms of reduction in the sentence, as stated above.

8. Noor Ahmad, appellant, is on bail. Subject to the appellant the fine of Rupees Five Thousand (Rs.5,000), within a reasonable period to be notified to him, the bail bonds shall stand discharged, failing which, he shall be taken into custody and sent to Jail to serve out the term of imprisonment imposed on him in lieu of non-payment of fine.

M.Y.H./N-82/L ?????????????????????????????????????????????????????????????????????? Appeal partly accepted.