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Criminal Appeal No. 621/C of 1983, decided on 12th February, 198:1.

-- S. 156 (1) (89) read with S. 178-Smuggling-To support convic tion under S. 156 (1) (89) prosecution, held, bound to show that goods were of foreign origin or that they could be reasonably suspected to be so.

--S. 156 (1) (89)---Smuggling--Goods recovered not of foreign origin-Charge of possession of smuggled goods, held, not sustain able-Conviction set aside.

-- S. 156 (1) (89) read with S. 178-Struggled goods-No explana tion given with regard to initials/words appearing on wrappers of some of packets of goods seized-Such inscriptions by themselves, held, not sufficient to raise any reasonable suspicion that contents of packets were of foreign origin.

Zaheer Ahmad Khan for Appellants.

Sh. Maqbool Ahmad for the State.

Date of hearing: 12th February, 1984.

The appellants, Taza Khan and Maseet Khan, were convicted by the learned Special Judge (Customs), Lahore, of an offence under section 156 (1) (89), read with section 178 of the Customs Act and were sentenced to suffer rigorous imprisonment for a period of six years. In addition there were also directed to pay fines in the amount of Rs. 50,000 each or, in default thereof, to suffer further simple imprisonment for a period of six months each.

2. According to the prosecution on 16th October, 1982 at 10-00 p. m., the appellants were coming by a truck to Lahore. Taza Khan was driving the truck while Maseet Khan was the cleaner. On receipt of information officers of the customs department stopped the truck near the Ravi Bridge, It was taken to the office of the customs department in Gulberg. On search of the truck 820 packets containing 797 kilograms of charas and 12 packets containing 10 kilograms of heroin were recovered from secret cavities under the floor of the truck. The appellants were arrested and later challaned an offence under section 156 (1) (89), read with section 178 of the Customs Act.

3. The appellants pleaded not guilty and denied that they were present in the truck when it was stopped by the officers of the Customs Department. They alleged that they were arrested from a hotel in Sarai- Alamgir and later involved in this case.

4. As already indicated the appellants have been convicted under clause (89) of section 156 (1) of tire Customs Act. This clause relates to possession of goods in respect of which there is either definite evidence or reasonable suspicion that the-y were smuggled into Pakistan. Though the possession of charas and heroin may itself be an offence under the excise and other laws relating to narcotics but to support a conviction under clause (89) ibid it is necessary for the prosecution to show that the narcotics were of foreign origin or that they could be reasonably suspected to be so. Thus, an important question for consideration in this appeal is whether the charas and heroin allegedly found in possession of the appel lants had been smuggled or were suspected to have been smuggled into Pakistan. At the trial the prosecution led no evidence whatsoever in this regard. When this position was brought to the notice of the learned counsel appearing for the State he feebly contended that the charas and heroin were not made in Pakistan. It may be mentioned that at the hear ing the learned counsel was assisted by officers of the Customs Department. When I asked the learned counsel if he was prepared to produce a certi ficate from some responsible authority in support of his assertion he expressed his inability to do so. I am, therefore, unable to hold that the B charas and heroin allegedly recovered from the truck of the appellants were not of Pakistan origin.

5. The learned counsel however contended that there was cause for entertaining suspicion that the charas and heroin allegedly recovered from the truck were smuggled into Pakistan. In support of his contention he referred to the recovery memorandum. It is mentioned therein that wrappings of some of the packets bore the words H. K.-(2) Ittefaq Factory and 1000-G. (H)'. In the absence of any explanation with regard C to what the initials stand for I do not think that the inscriptions by them selves were sufficient to raise any reasonable suspicion with regard to the foreign origin of the contents of the packets. I must, therefore, repel the contention of the learned counsel.

6. In circumstances I am of the view drat though the appellants may or may not be guilty of possession of narcotics, but the charge with regard to possession of smuggled goods cannot be sustained against them. Accordingly, I set aside their convictions and sentences and acquit them of the charge against them. They shall be set at liberty forthwith if not required in any other case.

M. Y. H. Appeal accepted.

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