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Criminal Appeal No. 504 of 1975, decided on 6th March, 1983

---S. 167(1)(81)--Certain smuggled goods recovered from roof of brothers of divorced wife of accused on information and pointing out by accused--Raiding party suspecting foul play and thinking that recovered articles had been placed by accused himself and arrested and challaned accused--Head Constable and Inspector Police giving evidence about recovery of said articles on pointing out of accused--Both officers having no reason at all to trump up a false case against accused--Testimony of said witnesses about recovery on pointing out of accused believed in circumstances.

---S. 167(1)(81)--Certain smuggled goods recovered from roof of brothers of accused's wife whom he had divorced on information and pointing out of accused--Circumstances showing that accused had got smuggled articles planted on roof of those persons with whom his relations were extremely strained and he did not do so by himself--Such inference not necessarily leading to conclusions that accused had himself provided smuggled articles to person who placed such articles on roof--Information supplied by accused to police also not specifying nature of smuggled goods--Accused might have left choice of contents of bundle to person instructed to plant same on roof--Ingredients of offence under S. 167 (1) (81), held, not established beyond reasonable doubt--Accused acquitted in circumstances.

Hashmat Ahmad Khan for Appellant.

Abdur Rehman for the State.

Date of hearing: 6th March, 1983.

Muhammad Nawaz alias Nawaz was convicted by the Special Judge (Customs) of an offence under section 167(1)(81) of the Sea Customs Act and was sentenced to suffer rigorous imprisonment for a period of 1 years and to pay a fine of Rs.5,000 in default of payment of the fine he was directed to receive rigorous imprisonment for a further period of six months. He has filed this appeal against his conviction and sentence.

2. The appellant is a resident of village Nadhe within the jurisdiction of Police Station, Hujra of district Sahiwal. He seduced Mst. Sakina (P.W.1) of his village and later contracted marriage with her. After two years of the marriage he took a second wife. This strained the relations between the spouses and as a consequence thereof Mst. Sakina (P.W.1) returned to her parents' house. Subsequently there was a litigation between the appellant on the one side and Mst. Sakina (P.W.1) and her brothers on the other side. He obtained a decree in the sum of Rs.2,500 against them. He also divorced her.

3. While the execution proceedings were pending the appellant on 30-9-1969 approached Inspector Muhammad Shehbaz Khan (P.W.3) of Sutlej Rangers and informed him that brothers of Mst. Sakina (P.W.1) were in possession of certain smuggled goods and that they had kept those goods in their house. On receipt of this information Inspector Muhammad Shahbaz Khan (P.W.3) organized a raiding party and went to the house of Mst. Sakina (P.W.1). On search of the house no smuggled goods were recovered. Upon this Inspector Muhammad Shehbaz Khan (P.W.3) summoned the appellant and asked him where the smuggled goods were lying. The appellant then suggested to the raiding party that they should look on the eastern part of the roof of the house.

The raiding party then climbed the roof and found a stack of cotton stalks lying there. Underneath the stack a bundle was lying. On opening the bundle three Indian currency notes of the denomination of Rs.100 each, a pistol, two cartridges and 1 seers opium were found. The raiding party suspected foul play and thought that the bundle had been placed by the appellant himself on the roof.: The appellant was arrested and challaned for an offence under section 167(1)(81) for keeping three Indian currency notes in his possession.

4. The appellant pleaded not guilty to the charge against him and said that he had been falsely implicated. He examined two witnesses in his defence. During the course of arguments the learned counsel for the appellant did not rely upon the defence evidence.

5. The conviction of the appellant rests entirely on the evidence of Mst. Sakina (P.W.1), H.C. Mulazam Hussain (P.W.2) and Inspector Muhammad Shahbaz Khan (P.W.3). The other two witnesses examined by the prosecution, namely, A.S.I. Altaf Hussain (P.W.4) and A.S.I. Mehmood Ahmad (P.W.5) are only of a formal nature. Mst. Sakina (P.W.1) deposed about the enmity which motivated the appellant to act in the manner in which he did in this case. H.C. Mulazam Hussain (P.W.2) and Inspector Muhammad Shahbaz Khan (P.W.3) stated that it was the appellant who had laid information before them that the brothers of Mst. Sakina (P.W.1) were in possession of smuggled goods. They also deposed that on search of the house no smuggled goods were recovered and that it was at the pointing out of the appellant that a bundle containing amongst other things three Indian currency notes was recovered from the roof of Mst. Sakina's house. I see no reason toy disbelieve the statements of H.C. Mulazarn Hussain (P.W.2) and Inspector Muhammad Shahbaz Khan (P.W.3). Both these officers had no reason at all to trump up a false case against the appellant From their testimony I am satisfied that it was the appellant who had pointed out the place from where the bundle was recovered.

6. The fact that the appellant had knowledge that a bundle containing Indian currency notes was lying concealed under a stack on the roof of Mst. Sakina's house leads to two possible inferences: firstly, that he himself had placed the bundle under the stack or, secondly, that he had got the bundle planted on the roof through someone else. There is no evidence that the appellant had easy access to the roof. Considering that the relation, between the appellant and the brothers of Mst. Sakina (P.W.1) were extremely strained it is unlikely that he would have been permitted to climb on the roof. It is, therefore, more likely that someone else at his bidding had planted the bundle under the stack. The second inference does not necessarily lead to the conclusion that the appellant had himself provided the Indian currency notes to the person who placed the bundle on the roof. It is to be noticed that the information supplied by the appellant did not specify the nature of the smuggled goods. He may have very well left the choice of the contents of the bundle to the person instructed to plant the same on the roof.

7. For the reasons stated above I am not satisfied that the ingredients of the offence under section 167(1)(81) have been established in this case beyond all reasonable doubt, I would, therefore, give him the benefit of doubt. Accordingly, I set aside his conviction and sentence and acquit him of the charge against him. He is already on bail. His bail bond shall stand discharged.

H . A . K. Appeal accepted.

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