Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 2‑P of 1978, decided on 13th March 1978.

(On appeal from the judgment and order of the Peshawar High Court; Peshawar, dated 6th December 1977, passed in Criminal Appeal No. 121 of 1977).

‑‑S. 156(8), (W‑Smuggling ‑High Court going through evidence on record with considerable care and coming to conclusion of all co‑accused of petitioner simply travelling with him in truck and there being no evidence of co‑accused being in conscious possession of contraband goods or else being in any way concerned with carriage of such goods‑Nothing on record showing such finding to be illegal Petitioner's stand of having taken over driving of truck temporarily on requests of permanent driver and permanent driver was to take over driving at an onward station not substantiated by producing permanent driver in defence nor any explanation given for not producing him in witness‑box‑High Court, held, wholly right in holding petitioner being in conscious possession of smuggled goods without any lawful excuse‑‑Conviction of petitioner upheld.

Syed Safdar Hussain, Advocate‑on‑Record, for Petitioner.

Nemo for the State.

Date of hearing : 13th March 1978.

‑This petition for leave to appeal is directed against the judgment of Peshawar High Court, dated 6‑12‑1977, and arise3 in the following circumstances :‑

On an information received by him that huge quantity of contraband goods were being carried in Truck No. PRB‑7921. Mr. K. M. Alamdad, Deputy Superintendent. Customs, incharge Check Post Khushal Garb alerted his staff and when the said truck arrived at the Check Post, at 11‑45 a.m. on 11‑6‑1977 it was stopped and upon the search of its body, it w al discovered that it had a double cover floor; on the removal of the upper wooden plank of the floor cavity was found in which 7212 wrist‑watches and 1536 chains were lying hidden since the petitioner herein could not explain as to how he bad came by these goods, he alongwith four others who were travelling with him in the truck were arrested and the goods taken into possession; thereafter K. M. Alamdad sent a murasila to S. H. O., Gumbat Police Station for the registration of a case against the petitioner and his co‑accused under section 156(F)t89) of the Customs Act; upon the basis of the said murasila, F.I.R. Exh. P. A. was later registered in the said Police Station and thereafter the investigation of the case was finalised and the petitioner and his co‑accused challaned in the Court of Special Judge (Central) Customs and Taxation, Peshawar, to stand their trial for the aforesaid offences. By his judgment dated 12‑9‑1977 the learned Special Judge found all the five accused guilty, accordingly convicted them and sentenced four of them to three years' R. I. and a fine of Re. 2,000 and in default further R. I. for three months. But in the case of accused Khan Afzal, who war said to be of tender age, the sentence awarded to him was six months' R. I. and a fine of Rs. 1,000 or in default further R. I. for 1 months. The case property was ordered to be confiscated by the State and it was directed that the same may be disposed of by the Customs Authorities according to law.

In the High Court, to which resort was made in its appellate jurisdiction, the conviction and sentence of petitioner herein was maintained and his appeal was dismissed. In the case of his co‑accused, however, the appeal was allowed and to that extent the judgment of the learned Special Judge was set aside and they were set at liberty.

Mr. Safdar Hussain, the learned counsel for petitioner has contended before us that upon the same evidence in this case the High Court had acquitted four co‑accused of petitioner and so the impugned judgment in regard to the latter must be held to be illegal. There is no force in this contention. In the High Court, the learned Single Judge had gone through the evidence on record with considerable care and came to the conclusion that the four co‑accused of petitioner, who were simply travelling, with him in the truck, could not be held guilty, for there was no evidence to show that they were either in conscious possession of the contraband goods or else were in any way concerned in their carriage, I respectfully agree with this conclusion. In point of fact the learned counsel was unable to seriously challenge the said finding, nor indeed was he able to point out anything from the record to show that the said finding was illegal. The learned counsel, however, seriously contended that under section 156(89) of the Customs Act, it was the burden of prosecution to show that the petitioner was in conscious possession of the contraband goods. But in this respect had produced no evidence whatever. In order to appreciat'3 this contention it would be profitable to reproduce the said section which reads as under:‑

"156.‑(1) Whoever commits any offence described in column 1 of table below shall, in addition to and not in derogation of any punishable to which be may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof.

(89) If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned In carrying, removing, depositing, barbering, keeping or canceling, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods."

Now by looking at the language of item 89, it is clear that if a person is found in possession of smuggled goods (and I agree it must be a conscious possession) or is in any way concerned in carrying removing, depositing, barbouring, keeping or concealing them then to establish the lawful excuse therefore would be hits burden. Now the stand taken by the petitioner hereinbefore the trial Court was that he was not the permanent driver of the truck and that on request of the permanent drives, namely, Sharbat, he was to drive the truck in question to Hassanabdal where Sharbat was to take over the truck from him for onward journey to Rashmore. Strangely, however, he neither produced Sharbat in defence nor indeed did he furnish any explanation as to why he could not be produced. In these circumstances, the High Court was wholly right to hold that petitioner was in conscious possession of the goods which were smuggled and for which he could not furnish any lawful excuse.

This petition, therefore, fails and is dismissed.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.