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Criminal Revision No. 7 of 1979, decided on 21st October, 1979:

‑‑‑ S. 265-K read with Customs Act (IV of 1969), S. 185 (f)‑.Be sides statement of co‑accused no other evidence connecting accused with crime and recovery of contraband goods from his house subsequent to detection of main offence .a separate transaction and having nothing to do with main‑ offence Accused, held, entitled to acquittal under S 365‑K, Cr. P. C. in circumstances.

Maula Bux and others v. The State 1977 S C,M R 292 ref.

Azizullah K. Shaikh for Applicant.

Mrs. Salima Nasiruddin for the State.

Date of hearing : 21st October, 1979

The Pakistan Coast Guards registered F. I. R. No.' 20 of 1979, on 29th July, 1979 at 9 a. m. disclosing the following facts :‑

"On receipt of credible information that a launch loaded with smuggl ed goods was on the way to Karachi from Dubai, the entire area along the coast was kept under strict watch by carrying out patrol ling by land, sea and air. On the afternoon of 28th July, 1979, a launch was spotted near general area KANUPP Hawksbay. Immediately a launch and a helicopter were despatched to investi gate and examine the suspected launch. It was confirmed by heli copter that the launch was carrying contraband goods in large quantity. The helicopter then directed the crew on megaphone to move towards Karachi Harbour. After covering a short distance the launch suddenly turned towards the shore and was beached and the crew started running away. Immediately the helicopter also landed nearby. Upon seeing the Coast Guards personnel the crew of the grounded launch started firing in a bid to escape from. the scene. The Coast Guards returned the fire by which one of the ‑smugglers got wounded who was immediately evacuated by helicopter to P. N. S. Shafa' where he died. Three smugglers with their weapons managed to escape but three of them were arrested, who revealed that the smuggled goads belong to Haji Abdullah Yaqoob, Haji Zikir and Sarwar. The launch Shahanshab No. 6220-B .which latter on got shattered was seized alongwith the contraband smuggled goods 1. e. whisky, watches, watches call and chains for watches and few other minor items were seized in the presence of two independent mashirs alongwith the seizing party of Coast Guards. F. 1. R. is lodged under sections 2, 15, 16 of the Customs Act, 1969 read with section 3 (1) (iii) of the Import and Export (Control) Act, 1950 and the notification issued there under punishable under section 156 (8) (89t of the Customs Act, 1969:"

2. The present applicant Haji Ghulam Habib, was not shown as one: of the accused persons nor was any part assigned to him in the commission of the offence. However, when the charge‑sheet was submitted in the Court of Special Judge (Customs), Karachi on 12th August, 1979, ‑it was disclosed therein that during investigation co‑accused Ghulam revealed that the applicant alongwith Haji Siddique and Ahmed were the owners of the smuggled goods. Earlier pursuant to this information on 1st September, 1979 the applicant was arrested and from his house, 6 crates and 2 bottles of smuggled scotch whisky were recovered. The applicant was accordingly arrested in connection with the aforesaid F. I. R. No. 20 of 1979 and sent up to stand his trial alongwith the other co‑accused by the aforesaid change‑sheet:‑

3. The learned Special Judge (Customs), Karachi thereafter framed a charge against the applicant under section 156 (1), clauses (8) and (89), customs Act, 1969, alongwith other accused. However, before the evi dence could be recorded the applicant moved the trial Court under section 265‑K, Cr. P. C. for his acquittal on the ground that there was no proba bility of his being convicted for lack of evidence against him in this case. The learned trial Court after hearing the counsel for the. parties dismissed the application by order dated 7th October, 1979. The applicant has now come up in revision before this Court.

4. Mr. Azizullah Shaikh, learned counsel for the applicant contend ed that the learned trial Court ought to have acquitted the applicant under section 265‑K as there is not even an iota of evidence with the prosecution connecting the present applicant with the offence in respect of which F. 1. R‑::No. 20 of 1979 was registered. Counsel submitted that the facts disclosed in the F. 1. R. and the charge‑sheet clearly make out that the contraband goods seized by the Coast Guard were being attempted to be taken into Pakistan. 1t is not the prosecution case that any of the culprits were able to escape alongwith the goods. Consequently learned counsel urged that the alleged recovery of contraband whisky from the house of the applicant at his pointing is obviously an independent transaction and cannot be tried alongwith the offence for which the F. I. R. in question was registered. Learned counsel placed reliance on Maula Bux and others v. The State (1977 S C M R 292) wherein their Lordships held that evidence of disclosure made by co‑accused apprehended at the spot was not admissible against such co‑accused whose names were disclosed and was also not by itself sufficient to provide basis for their conviction. Their Lordships were of the view that where the only evidence consisted of such statements of the co‑accused and there was no other evidence available against the accus ed, the proceedings were liable to be quashed.

5. Mrs. Salima Nasiruddin, learned counsel appearing for the State has opposed tile present application on the ground that opportunity should be given to the prosecution to produce evidence in the trial which is fixed on 5th November, 1979. However, as to the evidence against the appli cant in the present case, learned counsel candidly conceded that the same consists of the statements made by the apprehended co‑accused daring the investigation and that there was no other evidence against the appli cant. She also very fairly concedes that the recovery of the contraband goods from the house of the present applicant subsequent to the detection of this offence is a separate transaction and has nothing to do with the main offence

6. In view of this statement it appears to me that the present case is fully covered by the dictum laid down by their Lordships in the cited case of Maula Bux and others v. The State. In the present case also besides the statement of the co‑accused there is no other evidence connecting the applicant with the crime. ‑ Under the circumstances the applicant was entitled to be acquitted under section 265.x, Cr. P. C. and no useful pur pose will be served in dragging him in the trial.

7. In the result I allow this revision and order the acquittal of the applicant under section 265‑K. Cr. P. C. read with section 185‑F, Customs Act, 1969. It will however, be open to the Investigating Agency to submit a separate challan if they so desired in connection with the alleged recovery of the contraband goods from the possession of the applicant.

Revision allowed.

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