MUHAMMAD SHAMAS Versus THE STATE Zaheer Ahmad Khan , Maqbool Ahmad-II and Mian Qamar-uz-Zaman

Muhammad Shamas was tried by the learned Special Judge, Customs, Lahore, under sections 156(1)8/85/92 of the Customs Act, 1969, for attempting to smuggle opium across the border, obstructing the Rangers party from apprehending him and intimidating them by firing at them. The learned trial Judge, by his judgment dated 16-4-1987, convicted him under section 156(1)(8), of the Customs Act and sentenced him to three years' rigorous imprisonment and to pay a fine of Rs.10,000 or in default thereof to suffer further rigorous imprisonment for six months. The benefit of section 382-B, Cr.P.C. was also awarded to him. The appeal (Cr.A. 227/C of 1987) filed by Muhammad Shamas against his conviction and sentence, is now before me.

2. The prosecution case in brief is that on receipt of a secret information that Muhammad Shamas accused would smuggle charas out of Pakistan, Muhammad Mukhtar S.I Anti-Smuggling Staff P.W. 1 organised a Nakabandi party on 12-8-1986 near Gaddu Pullee in the area of Patte Kalan, Police Station Saddar, Kasur. Muhammad Daud Naik P.W. 3, Malik Abdul Rahman S.I. P.W. 4 and Muhammad Jamil Naik, P.W. 5, amongst others, were members of the Nakabandi party. The party entrenched itself near Gaddu Pullee. At about 2-00 a.m. on 13-8-1986 three persons were observed heading towards the border. Two of them were carrying sacks on their heads, while the third was armed with a carbine. They were challenged to stop, but the person armed with the carbine fired at the Nakabandi party, who replied in return. The persons with sacks on their heads threw the same on the ground and started to run away, when Muhammad Jamil Naik, P.W. 5 of the Nakabandi party fired a very light pistol, through the light flare of which Muhammad Shamas and Aslam Malang, were identified. Muhammad Shamas, accused, was the person running away with the carbine. All the three accused managed to escape. From the search of the place, one sack P.1 containing nineteen packets P3/1-19 of charas and the other sack P2 containing twenty packets P-4/1-20 of charas were taken into possession vide recovery memo. Ex. P.A. Two samples were drawn from charas, which were made into separate parcels and taken into possession under a recovery memo. Muhammad Mukhtar S.I. P.W. 1 then drafted the complaint Ex. P.B. and sent the same to Police Station Kasur, where formal F . I . R . Ex. P B / 1 was recorded.

3. The two samples of charas sent to the Chemical Examiner were verified by him to be charas. Muhammad Shamas accused, was arrested on 17-9-.1986, on which date notice Ex. P.D. under section 171 of the Customs Act was served on him, vide memo. Ex. P.D. by, Nazir Ahmad S.I. P.W.

6. Muhammad Aslam Malang, accused, could not be arrested and was declared a proclaimed offender. Ultimately, challan against Muhammad Shamas, accused, was sent up.

4. Muhammad Shamas, accused, in his statement under section 342, Cr.P.C., denied all the accusations that were levelled against him. He denied that the case property belonged to him. He admitted that he was arrested on 17-9-1986, on which date his signatures were obtained on a blank paper. He further stated that Muhammad Mukhtar S.I. P.W. 1 and one Raja Javed S.I. were his neighbours in Al-Faisal Town, that his family members had some quarrel with the latter and that it was at his instance that this false case had been trumped up against him. He refused to produce defence or make a statement under section 340(2), Cr.P.C.

5. The learned Judge, relying upon the evidence of the members of the raiding party and that relating to the recoveries, convicted and sentenced Muhammad Shamas, accused, as stated in para 1 above.

6. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. According to the testimony of Muhammad Mukthar S.I. P.W. 1, Muhammad Daud Naik P.W. 3, Malik Abdul Rahman S.I. P.W. 4 and Muhammad Jamil Naik P.W. 5, the Nakabandi party held picket near Guddu Pullee adjacent to the B.R.B. canal. At about 2-00 a.m. on 13-8-1986 three persons were observed heading towards the border, that is to say towards the pullee. Two of them were carrying sacks on their heads, while the third was armed with a carbine. They were challenged to stop, but one of them fired at the Nakabandi party. According to the statement of Muhammad Daud Naik P.W. 3, under the directions of Muhammad Mukhtar S.I. P.W. 1, he fired two rounds at them in self-defence and according to the statement of Muhammad Jamil Naik P.W. 5, he fired two rounds with his very light pistol. In the light flare, Muhammad Mukhtar S.I. P.W. 1 identified Muhammad Shamas, appellant, and Muhammad Aslam Malang, proclaimed offender, Muhammad Daud Naik P.W. 3 identified Muhammad Shamas, appellant, only and Malik Abdul Rahman A.S.I. P.W. 4 and Muhammad Jamil Naik, P.W. 5 were not able to identify any of the accused. From the place of occurrence, one sack P.1 containing nineteen packets of charas P3/1-19 weighing about nineteen seers and another sack P.2 containing twenty packets of charas P-4/1-20 weighing approximately twenty seers were recovered and taken into possession vide recovery memo Ex. P.A. Two samples taken from the recovered charas were then transmitted to the Chemical Examiner, Lahore, through covering memo Exh. P.C. signed by Muhammad Mukhtar S.I. P.W.

1. On behalf of the appellant, the following submissions have been made. First, that there are discrepancies in the evidence, which make the story somewhat doubtful. In this connection it is submitted that at times the witnesses refer to thirty-nine seers of charas which was recovered, whereas at times they state thirty-nine kilograms. It is submitted that whilst all the witnesses have stated that three accused were seen heading towards India, Muhammad Daud Naik P.W. 3 in his police statement Ex. P.A. has stated that the appellant was coming from India. It is also pointed out that the distance of the place of occurrence from the border and village Patto Kalan has been given differently by each witness. Second, that there is an inordinate delay in the lodgment of the F.I.R. In this connection it is submitted that though the police station was not more than a mile away and the complaint Ex. P.B. was despatched at 8-10 a.m., the formal F.I.R. was not lodged till three hours thereafter. Third, that the accused could not have been identified by the light of the flare fired from the very light pistol, as such a light which falls from a height above does not sufficiently lighten up the faces of the individuals so that they can be properly identified, though it does brighten up the surroundings from which one can discern various objects within a reasonable radius. In this connection it is also submitted that from the evidence on the record, the accused were identified whilst they were fleeing from the place of occurrence and their faces could not have been seen. Fourth and last, that the covering memo. Ex. P.C. with which the two sealed samples of the opium were sent to the Chemical Examiner itself gives a complete lie to the prosecution case, as it clearly states that two samples being sent are those recovered from thirty-nine kilogram of opium which were left behind by unknown smugglers, who were attempting to cross the border when they were surprised by the Nakabandi party. I am somewhat sceptical about the ocular account, so far as where p the identification of Muhammad Shamas, appellant, is concerned. He was only identified by Muhammad Mukhtar S.I. P.W. 1 and Muhammad Daud Naik P.W. 3, two of the four witnesses who appeared at the trial. Muhammad Mukhtar S.I. P.W. 1 stated in examination-in-chief that Muhammad Shamas, appellant, was previously known to him personally. Muhammad Daud Naik P.W. 3 did not mention whether he knew the appellant earlier or not. According to his statement in cross-examination, when he challenged the accused, they fired and started running. He also stated that the accused started running away the moment he fired the two shots, after which he had fired from his very light pistol. He also stated that the shots from the alleged pistol were fired in the direction of the accused persons who were running. The complaint Ex. P.B. also shows that the three accused had succeeded in fleeing under cover of the high mounds that were present around the spot. In this view of the matter, I am doubtful whether the accused could have been identified. I do not wish to go on record that the light flare fired from the very light pistol in the instant case was not sufficient to brighten up the place to enable identification of the accused falling within the umbrella of its light. I would only say that in view of the somewhat consistent story that after the exchange of fire between the two parties the accused started running, whereafter the light pistol was fired, the statement of Muhammad Mukhtar S.I. P.W. 1 and Muhammad Daud ? Naik P.W. 3 that they were able to identify Muhammad Shamas, appellant, or Muhammad Aslam Malang, proclaimed offender, appears to be somewhat doubtful. However, what clinches the case is the covering letter Ex. P.C., under which the two samples of the charas recovered from the spot were sent to the Chemical Examiner, which clearly mentions that the same were taken from two lots left by two "unknown smugglers" who were attempting to smuggle it across the border when they were surprised by the Nakabandi party and had fled after leaving the charas behind. Taking into consideration all these facts, the evidence of Muhammad Mukhtar S.I. P.W. 1 and Muhammad Daud Naik P.W.3 that they were able to identify Muhammad. Shamas, appellant, in the darkness of. the night, being somewhat doubtful, cannot be accepted with any degree of safety or certainty . I would therefore, reject their evidence qua the identification of the appellant.

8. The question as regards the drawing of the two samples by Muhammad Mukthar S.I. P.W.1 from the recovered opium left at the spot by the three accused, the sealing of the said samples by the said officer, its subsequent retention in the Commandant's Office and its final transmission to the officer of the Chemical Examiner, leave much to be desired. According to the testimony of the witnesses when the two samples were drawn, a recovery memo was prepared, which was signed by all of them. The said recovery memo, has not been exhibited. Muhammad Mukthar S.I. P.W.1 should have deposited the two sealed samples in the Customs warehouse, but according to his statement in cross-examination he did not lodge the same there but with the Commandant of A. S.I. U. in his safe. On what date the two sealed samples were deposited with the Commandant of A.S.I.U. is also not clear. Further, the date on which the said two sealed samples were transmitted to the office of the Chemical Examiner under cover of covering letter Ex. P.C. is also not clear. What appears from the evidence is that it was sent to the office of the Chemical Examiner on some date unknown, but was returned by that office as the date of the registration of the case on the covering letter Ex. P.C. was incorrect. The date was then corrected and the two sealed samples were ultimately sent to the office of the Chemical Examiner on 25-8-1986. The said covering letter Ex. P.C. shows that the two sealed samples bore seals with markings reading 3" x 3". The complaint Ex. P.B., however. shows that the two sealed parcels were sealed with seals bearing the words "M. Mukthar Malik SR" in English. Muhammad Mukhtar S.I. P.W.1 admitted in cross-examination that he had not handed over the two sealed samples to the Investigating Officer, that they had been placed in the custody of Major Muhammad Tahir Pervaiz, Commandant A.S.I.U. that no receipt was given by the said Commandant to him in token of the receipt of the said samples, that he had not drawn out the said samples from the Commandant's office thereafter and that he did not know when these samples were sent to the office of the Chemical Examiner and by whom the same were sent. In the presence of such discrepant evidence, it cannot safely be inferred that the two sealed samples of charas which the Chemical Examiner ultimately examined were those which were drawn by Muhammad Mukhtar S.I. PW.1 from the charas recovered from the spot.

9. The upshot of the above discussion is that neither from the evidence of the four named witnesses produced at the trial it can safely be inferred that they were able to identify the appellant or that the charas in the two sealed samples ultimately sent to the office of the Chemical Examiner was that drawn from the lot recovered at the spot. In these circumstances, Muhammad Shamas, appellant, is entitled to the benefit of doubt.

10. For the foregoing reasons, this appeal /is accepted and the conviction and sentence of Muhammad Shamas, appellant, is set aside. He shall be released forthwith, if not required in any other case. The fine, if recovered from him shall be refunded to him.

M.. Y. H./M-471/L ????????????????????????????????????????????????????????????????????????????? Appeal allowed.