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Criminal Appeal No. 5451C of 1983, decided on 30th October, 1983.

---S. 156(1)(89)--Criminal Procedure Code (V of 1898), S. 103--Recovery, validity of--Members of public, forming part of Nakabandi party, declined to support prosecution case regarding recovery of alleged smuggled liquor of foreign origin--Held, not safe to base conviction of accused on sole testimony of Police Officer, who organized Nakabandi.--[Recovery].

---S.156(1)(89) read with S. 178--Evidence, appreciation of--Value of smuggled liquor allegedly recovered from possession of accused less than Rs. 10,000 --Accused, held, could not be convicted by Special Judge (Customs) of an offence under S. 156(1)(89) of Customs Act--Conviction and sentence set aside, in circumstances.

A. S. Ali Chaudhary for Appellants.

Nemo for the State.

Date of hearing: 30th October, 1983.

The appellants, Noor Din (aged 37 years) and Ata Muhammad (aged 15 years) were convicted by the 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 months and to pay fines in the amount of Rs. 1,000 each. In default of payment of the fines they were to receive simple imprisonment for a further period of one month. They have filed this joint. appeal against their conviction and sentences.

2. According to the prosecution on 3rd July, 1981 at about 7 a.m. S.I. Abdur Rehman Shah (P.W.2) of Police Station Takhat Mahal in District Bahawalnagar received information that the appellants were carrying Indian liquor. Accordingly, he organized a Nakabandi party and hauled them on a Katcha Road near Bhokhanwala Pattan at a distance of one mile from Qabula. They were riding on a scooter. Ata Muhammad appellant had two bottles of Indian liquor in the fold of his loin cloth. On the information supplied by Noor Din who was driving the scooter another 8 bottles of Indian liquor were recovered from the luggage compartment of the scooter. Both appellants were arrested and later challaned for an offence under section 156(1)(89) of the Customs Act.

3. The appellants pleaded not guilty to the charge against them. They disowned the bottles of liquor and denied that they were recovered from their possession. They further stated that Noor Din had contested election against the Chairman of the Union Council of K'ishan Garh and they had been falsely implicated at the instance of his rival. They did not lead any evidence in their defence.

4. The main witness for the prosecution at the trial was S.I. Abdur Rehman Shah (P.W.2), Station House Officer of Police Station Takhat Mahal. He stated that he had found the appellants riding on a scooter and that he had recovered ten bottles of liquor from their possession.

5. There were two members of the public who had joined the Nakabandi party. One of them namely, Shah Muhammad (P.W.3) was produced at the trial but the other, namely, Riaz Ahmad, was given up on the ground that he had been won over by the defence. Shah Muhammad A (P.W.3) also did not support the case of the prosecution and was, therefore, declared hostile. It is thus a case where the only members o., the public who formed part of the Nakabandi party have declined to support the story of the head of the Nakabandi party. In the circumstances it will not be safe to base the conviction of the appellants on the sole, testimony of the Sub-Inspector.

6. It may also be mentioned that the value of the ten bottles of liquor allegedly recovered from the possession of the appellants was less than 8 Rs. 10,000. Thus, the appellants could not be convicted by the learned Special Judge of an offence under section 156 (1) (89) of the Customs Act.

7. For the reasons stated above I accept this appeal, set aside the conviction and sentences of the appellants and direct that they shall be acquitted. The appellants are already on bail. Their bail bonds shall stand discharged.

S. G. D. Appeal accepted

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