MAULA BUX AND 8 Others vs THE STATE AND 2 OTHER

1. ANWARUL HAQ, J.-After hearing the learned counsel for the parties, we have decided to convert this petition into an appeal, and dispose it of accordingly.

2. On the 12th of August 1976, a first information report was recorded at the instance of Maj. Allah Nawaz Khan at the headquarters of the Pakistan Coast Guards, Karachi, alleging that at about I a.m. On that day one of the patrols of the Coast Guards challenged certain persons who were busy in loading bundles on camels. There was an exchange of lire as a result of which two persons named Ramzan and Shall Muhammad (respondents in the present proceedings), were caught at the spot along with fourteen bundles of foreign smuggled goods loaded on seven camels and six bundles lying on the ground. Tie: first information report further stated that the two persons arrested at the spot disclosed that they were accompanied by nine other persons, and they named the present appellants as being concerned in taking delivery of the smuggled goods brought by a launch. On these allegations, a case falling under section 3 of the Imports and Exports Control Act of 1950 read with clauses (8) and (89) of section 156 of the Customs Act, 1969, was registered against these eleven persons. It is stated that a challan against them has since been submitted in the Court of the Special Judge.

3. The appellants had moved a petition in the High Court of Sind & Baluchistan under section 561-A of the Code of Criminal Procedure for quashing the proceedings on the ground that there was no evidence against them. However, this petition was dismissed in limine by a learned Judge of that Court by his order dated the 9th of 13 October 1975, observing that has no evidence bad yet been led in the case, it was not known as to what pieces of evidence might be made available against the applicants.

4. It is contended on behalf of the applicants that the learned Judge in the High Court was in error in observing that it was not known as to what evidence might be available for the prosecution, as the evidence bad been spelt out in the challan submitted in the Courts of the Special Judge. The witnesses cited in the cballan are the first informant, Maj. Allah Nawaz Khan, his colleagues, Maj. Arif Sultan and Capt. M. Hayat, as well as his subordinates Sub: Maj. Mohammad Umar Khan, Nb-Sub.

5. Mohammad Bashir and Haveldar Manzoor Hussain, and the nature of their evidence is also ascertainable from the statements which they have made under section 161 of the Cr, P. C during the investigation of the case. It is submitted that neither any identification parade was held to fix the identity of the persons who escaped from the spot, nor have any recoveries been made from any of the appellants. Mr. Azimullah Shaikh contends that even if the entire evidence sought to be relied upon by the prosecution is accepted, it does not make out even a prima facie case against the appellants, and therefore, their prosecution would amount to an abuse of the process of the Court.

6. With the help of the learned counsel appearing for the parties we have scrutinized the available evidence, and we find that apart from the evidence regarding the interception of the bundles of smuggled goods by the Coast Guards, there is evidence that during the chase Nb-Sub Mohammad Bashir and Haveldar Manzoor were able to identify at least three of the appellants namely, Wasand (appellant No. 2), Babu Jan (appellant No. 6) and Haji Ahmed (appellant No. 9). It is correct that the presence of the torch was not mentioned in the first information report, nor was the fact that these two officials had Identified three the appellants, and even the they had not been formally Seized as a part of the case property, yet these two witnesses have made statements during the investigation of the case that they were able to identify these three appellants. The question whether their evidence should be accepted or not is a question, which must be decided by the trial Court in the first instance.

7. As regards the remaining six appellants, the learned counsel appearing for the State concedes that the only evidence available to connect them with the crime consists of the disclosure made by the two respondents who were caught by the Coast Guards at the spot. The disclosure is obviously not admissible in evidence, and even if these respondents repeat the same information at the trial, it would at best be available for consideration under section 30 of the Evidence Act, taut by itself it could not provide the basis for the conviction of the appellants named by the respondents as being concerned in the same transaction. In view of this position the learned counsel for the State was willing to concede that there was no possibility whatsoever of a conviction to be recorded against the six appellants which were not identified by the officials of the Coast Guards, and against whom there was no other evidence at all.