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[Lahore]

Criminal Appeal No. 560/C of 1983, decided on 11th February, 1984.

Customs Act (IV of 1969)--

---S. .156(1)(8)--Smuggling--Accused crossing into Pakistan with a substantial quantity of silver--Prosecution witnesses having no enmity with accused, not acquainted with him prior to day in question and having no reason to falsely implicate accused and plant a large quantity of silver on him--Defence witness produced by accused having no personal knowledge about incident for he was not present at time when accused was arrested and his statement not detracting in any way from testimony of prosecution witnesses--Case established against accused- Conviction and sentence maintained.

Shakoor Sabri for Appellant.

Sh.Maqbool Ahmad-II for the State.

Date of hearing: 4th March, 1984.

The appellant, Muhammad Amir (aged 25 years) was convicted by Special Judge (Custom) at Multan of an offence under section 156(1) (8), of the Customs Act, 1969 and was sentenced to suffer rigorous imprisonment for a period of five years. He was also asked to pay fine of Rs.1,000 or in default thereof to undergo simple imprisonment for a further period of one month. He has filed this appeal against his conviction and sentences.

2. The case of the prosecution against the appellant was that on 6-3-1981 at about 12.30 p.m. he entered Pakistan from India between border pillars No.273/2 and No.273/3. He was carrying a bag in his hand. When he had covered a distance of 50 yards from the border line he was seen by a patrol party of the desert rangers headed by Inspector Orangzaib (P.W.1). The patrol party challenged, him whereupon he threw the bag down and started running. He was given a chase and captured. He was brought to the place where he had thrown the bag. On opening the bag 5.080 kilograms of silver was recovered. A recovery memorandum was prepared by Inspector Orangzaib (P.W.1) which was thumb-marked by the appellant. On a report prepared by inspector Orangzaib (P.W.1) a case under section 156(1) (8), of the Customs Act was registered on the following day at Police Station Mandi Sadiq Ganj of District Bahawainagar.

3. The appellant pleaded not guilty to the charge against him. He denied that he was found by a patrol party of the desert rangers in the process of crossing the Indo-Pakistan border with a bag containing silver. He disowned the silver and stated that he had been falsely implicated on account of enmity. He examined one witness in his defence.

4. The case of the prosecution against the appellant mainly rests upon the testimony of Inspector Orangzaib (P.W.1) and Naik Sher Shah (P.W.3). Both these officials belong to the desert rangers they claimed that they were on patrol duty on the day in question and had seen the appellant crossing the Indo-Pakistan border with a bag. When they challenged the appellant he threw the bag down started running. He was pursued and apprehended. On opening the bag they found that it contained silver in bricks and bars.

5. Neither Inspector Orangzaib (P.W.1) nor Naik Sher Shah (P.W.3) had any enmity with appellant. They were not even acquainted with him prior to the day in question. There was thus no reason at all why they should have falsely implicated him in this case and planted such a large quantity of silver on him. The only defence witness produced by the appellant had no personal knowledge about the incident for he was not present at time when the appellant was arrested. His statement therefore does not detract in any way from the testimony of Inspector Orangzaib (P.W.1) and Naik Sher Shah (P.W.3.).

6. The place from where the appellant was arrested falls in village Barayka. At the relevant time it was harvesting season and Naik Sher Shah (P.W.3) admitted that when the appellant was found crossing the border some persons were working in the fields at a short distance. The learned counsel for the appellant contended that the failure of the prosecution to produce some of the persons working in the nearby fields in support of its story casts doubt on the genuineness of the case of the prosecution. I do not think that I can accept this argument when I find that Inspector Orangzaib (P.W.1) and Naik Sher Shah (Q.W.3) had no reason et all to perjure themselves against the appellant.

7. On the basis of the statements of the members of the patrol party I am satisfied that the appellant did cross into Pakistan with a bag containing a substantial quantity of silver. He was, therefore rightly convicted by the learned Special Judge of an offence under section 156 (1) (8), of the Customs Act. The sentence of imprisonment awarded to him is the minimum prescribed for the offence. The sentence of fine is also not excessive. The appeal is accordingly dismissed.

M. Y. H.

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