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Criminal Appeal No.445 of 1983, decided on 22nd October, 1983.

‑‑‑Ss. 156 (1)(8) & 178‑‑Nakabandi party of Sutlej Rangers apprehending accused and two Indian nationals near Indo‑Pak border at 2‑00 a.m. while carrying contraband articles‑‑Main prosecution witnesses who were officers in Rangers not acquainted with any of accused before occurrence and not having any motive to falsely implicate them‑‑Defence plea that their enemy prevailed upon Rangers Officers to falsely implicate them, not substantiated‑‑Prosecution evidence believed‑‑Defence witnesses not claiming to be present at time of occurrence thus their evidence not detracting prosecution evidence‑‑Time and place of occurrence and fact that accused were accompanied by Indian Nationals, corroborating their intention of smuggling‑‑Conviction maintained in circumstances.

Syed Waheed‑ur‑Rehman Gilani and Muhammad lqbal Nasir for Appellants.

Nemo for the State.

Date of hearing: 15th October, 1983.

The appellants, Din Muhammad (aged 35 years), Tariq Mahmood (aged 18 years), Haider Ali (aged 50 years) and Muhammad Akram (aged 45 years) 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 and to pay fines in the sum of Rs.5,000 each or in default thereof to receive further simple imprisonment for a period of three months. Alongwith them two Indian nationals, Balkara Singh and Baldev Singh, were also tried and convicted by the learned Special Judge. The appellants have filed this appeal against their conviction and sentences.

2. According to the prosecution on the evening of 26‑11‑1982 Inspector Shamim Akhtar (P.W.1) of the Sutlej Rangers organized a Nakabandi party within the area of village Mojokay at a distance of about 100 yards from the Indo‑Pakistan border. In the early hours of the next morning, that is, at 2‑00 a.m., the Nakabandi party saw six persons coming from the side of Pakistan and proceeding in the direction of India. These six persons were the appellants and the two Indian nationals. The Nakabandi party apprehended them. Din Muhammad, Tariq Mahmood and Haider Ali were carrying bags on their heads while Muhammad Akram had a second hand radio‑cassette recorder in his hand. The bags carried by Din Muhammad and Tariq Mahmood contained 18 rolls of Pakistani polyester cloth each. The bag recovered from the possession of Haider Ali contained 8 rolls of polyester cloth, 3 rolls of printed cloth and 5 pieces of other cloth. Balkara Singh and Baldev Singh had Indian currency on their person. The appellants and their companions were served with notices under section 171 of the Customs Act. Later, they were challaned for an offence under section 156(1)(8), read with section 178 of the Customs Act,

3. The appellants pleaded not guilty to the charge against them. Din Muhammad and Tariq Mahmood stated that they were itinerant cloth sellers and they were arrested by the Rangers from near village Lalu when they were returning after selling some cloth. Muhammad Akram and Haider Ali stated that they went to the Rangers for the release of Din Muhammad and Tariq Mahmood upon which they too were falsely implicated in the case. The appellants examined three witnesses in their defence.

4. The case of the prosecution against the appellants depends mainly upon the testimony of Inspector Shamim Akhtar (P.W.1) and S.I. Muhammad Azam (P.W.2). Both these witnesses were members of Sutlej Rangers. They stated that they were members of the Nakabandi party and had arrested the appellants from a distance of 100 yards from the Indo‑Pakistan border and that at the time of their arrest the appellants, Din Muhammad, Tariq Mahmood and Haider Ali were carrying bags containing Pakistani cloth while Muhammad Akram was holding a radio‑cassette recorder. There is nothing on the record which may indicate that either of these witnesses was acquainted with any of the appellants before the occurrence or had any motive to perjure himself against the appellants. From their cross‑examination it appears that the case of the defence was that the appellants had enmity with one Amir Niazi who had prevailed upon these witnesses to falsely implicate them in this case. The witnesses denied any knowledge of enmity between the appellants and Amir Niazi and the appellants did not lead any evidence to substantiate their assertion. I have therefore no reason whatsoever to disbelieve the testimony of these two officers from Sutlej Rangers.

5. The three witnesses produced by the appellants in their defence testified to the good character of the appellants and stated that they had been falsely involved in the case. They however admitted that they were not present at the time the appellants were arrested. They are therefore not in a position to state the circumstances under which the appellants were apprehended by the Nakabandi party. I do not think that their evidence detracts from the testimony of Inspector Shamim Akhtar (P.W.1) and S.I. Muhammad Azam (P.W.2) in any way.

6. On the basis of the statements made by Inspector Shamim Akhtar (P.W.1) and S.I. Muhammad Azam (P.W.2) I am satisfied that the appellants were in fact arrested from near the Indo‑Pakistan border while carrying rolls of cloth and a radio‑cassette recorder. Considering the time and place of arrest and the fact that they were accompanied by Indian nationals I have no doubt in my mind that they intended to smuggle these articles to India. They were therefore rightly convicted by the learned Special Judge of an offence under section 156(1)(8), read with section 178 of the Customs Act. The sentences awarded to them are not at all excessive. The appeal is accordingly dismissed.

S. G. D.

Appeal dismissed.

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