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Criminal Appeal No. 1279 of 1976, decided on 22nd June, 1985.

(a) Customs Act (IV of 1969)--

---Ss. 156(1)(8) & 178--Smuggling--Accused and some other persons seen coming from India carrying some bundles with them--On challenge of Nakabandi party, except for accused, others managing to run away- Large quantity of smuggled goods recovered from bundles which were thrown away by accused on spot -Members of Nakabandi party except one, who was declared hostile, supporting prosecution version--No reason found as to why any of said witnesses should have perjured himself against accused persons--No member of Nakabandi party found to be acquainted with accused prior to occurrence--Defence evidence not believed--Conviction upheld.

(b) Customs Act (IV of 1969)--

---Ss. 156(1)(8) & 178--Smuggling--Defence evidence--Accused apprehended by a party of Rangers--Smuggled articles recovered from bundles being carried by accused--Defence evidence stating that accused were arrested from their fields found to be most unlikely--Taking of innocent persons from their fields and then planting of a large quantity of smuggled goods on them by a party of Rangers without any motive being incredible, version of defence witnesses disbelieved.

---Ss. 156(1)(8), 178 & 171--Defence plea that at time of arrest accused were not given any notice under S. 171, Customs Act, 1969 not taken at trial--Such plea discarded at appeal stage.

(d) Customs Act (IV of 1969)--

---Ss. 156(1)(8) & 178--Sentence--lnciderrt taking place more than twelve years back--Accused facing protracted trial and suffering torture of suspended sentence--Sentence of two years' R.I. reduced to one already undergone in circumstances.--[Sentence].

M. Iqbal Bhatti for Appellant.

M. Rafiq Butt for the State.

Date of hearing: 16th June, 1985.

JUDGMENT

The appellants, Muhammad Sadiq and Muhammad Latif, were convicted by the Special Judge (Customs), Lahore of an offence under section 156(1)(8), read with section 178 of the Customs Act and were sentenced to suffer rigorous imprisonment for a period of two years. They have filed this appeal against their conviction and sentence.

2. According to the prosecution, on the night between 26th and 27th March, 1973, the Sutlej Rangers organized a Nakabandi party in the vicinity of village Diyal on the Indo-Pakistan border. At about 5-00 a.m. a number of persons including the appellants were seen coming from India. They had some bundles with them. The Nakabandi party challenged them. Except for the appellants the others managed to run away. On search of the spot 215 pounds of betel leaves of Indian origin and 491 pounds of cloves were recovered. On the basis of an incident report prepared by Inspector Muhammad Aslam (P.W.1) who was heading the Nakabandi party, an F.I.R. under section 156(1)(8) was registered at Police Station Manawan at 6-30 p.m. on 27-2-1973.

3. The appellants pleaded not guilty to the charge against them. They denied that they were caught in the act of smuggling betel leaves and cloves into Pakistan. They alleged that they had been falsely implicated in this case. They produced two witnesses in defence.

4. The case of the prosecution against the appellants rests mainly on the testimony of Inspector Muhammad Aslam (P.W.1), Lance Naik Muhammad Azad (P.W.4) and Sepoy Muhammad Khan (P.W.8). They were members of the Nakabandi party. Another member of the Nakabandi party, namely, Lance Naik Maskeen Ali Shah (P.W.5) did not support the prosecution version and as such he was declared hostile. Inspector Muhammad Aslam (P.W.1), Lance Naik Muhammad Azad (P.W.4) and Sepoy Muhammad Khan (P.W.8) deposed that they had seen the two appellants alongwith a number of other persons coming from India while carrying bundles. When the appellants and their companions were challenged they tried to run away after throwing the bundles. The Nakabandi party was able to capture the two appellants. On search oil the spot where the bundles were thrown, 27.5 pounds of betel leaves and 491 pounds of cloves were recovered. There is no reason at all why any of these witnesses should have perjured himself against the appellants. It does not appear from the record that any member of the Nakabandi party was acquainted with the appellants prior to the relevant day. The two defence witnesses stated that the appellants were arrested from their fields. It is a most unlikely story for it is incredible that a party of Sutlej Rangers should take innocent persons from their fields and then plant such a large quantities of betel leaves and cloves on them without any motive whatsoever. I am, therefore, unable to accept the version of the defence witnesses.

5. It was contended at the bar that at the time of the arrest the, appellants were not given any notice under section 171 of the Customs Act. I am afraid I cannot accept this plea for no foundation for this plea was laid at the trial, Had this been done the prosecution might have been in the positron to meet this objection.

6. For the reasons stated above, I am satisfied that the appellants were in fact caught while smuggling betel leaves and cloves from India into Pakistan. Thus they were rightly convicted of an offence under section 156(1)(8), read with section 178, of the Customs Act. The question of sentence requires consideration. The incidence took place more than 12 years ago and the appellants faced a prolonged trial which did not conclude till 1976. Since then the appellants have been suffering the torture of suspended sentence. In my opinion the interest of justice will be fully served if their sentence is reduced to the period already undergone by them. I order accordingly. At present appellants are on bail. Their bail bonds shall stand discharged.

H.A.K.

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