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Criminal Appeal No. 246/C of 1982, decided on 22nd October, 1985.

‑‑----S. 5‑‑Customs Act (IV of 1969), Ss. 156(1)(89) & 178‑‑Condonation of delay‑‑Appeal ‑barred by time by five years‑‑Accused explaining that during intervening period he had been shifted from one jail to another consequent upon his false implication by police in number of cases‑‑Factum of detention of accused in various jails not controverted‑ Delay condoned in circumstances.

‑‑‑Ss. 156(1)(89) & 178‑‑One Indian currency note allegedly recovered from accused‑‑Two witnesses who were members of public and had joined raiding party were declared hostile when they declined to support prosecution version‑‑Two police officials supporting prosecution version‑‑No confirmation of testimony of police officials found on record‑‑Accused given benefit of doubt and acquitted in circumstances.

R. A. Awan for Appellant.

Maqbool Ahmad II, Standing Counsel for the State.

Date of hearing: 6th October, 1985.

The appellant has been convicted of an offence under section 156 (1)(89), read with section 178, of the Customs Act and has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000 and to suffer 15 stripes. In default of payment of the fine he has been directed to receive rigorous imprisonment for a further period of one year. He has filed this appeal against his conviction and sentence.

2. The appeal is barred by time by about 5 years. The appellant has moved an application for condonation of the delay. The explanation of the appellant is that in the intervening period he had been shifted from one jail to another consequent upon his false implication by the police in number of cases including cases of murder. The factum of his detention in various jails has not been controverted by the State. In the circumstances I would condone the delay.

3. According to the prosecution on 23‑3‑1974 a police raiding party, organised by Inspector Ali Nasir, Station House Officer, Police Station Misri Shah, Lahore, went to the house of Muhammad Sadiq in Kacchupura, Lahore at 3.00 p.m. It found the appellant together with Muhammad Younis, Veeru and Gulzar present there. They were all taking their meals. Veeru was an Indian National. On his search gold bars, weighing 28 tolas, and four watches of foreign origin were recovered. The appellant had one Indian currency note of Rs.100 with him. Muhammad Siddique had Indian currency also of the denomination of Rs.20 on his person Gulzar had Rs.10 Indian currency note and 20 paisa of Indian coin with him. They were all arrested and a case under the Customs Act was registered against them.

4. Muhammad Siddique was murdered before the trial could be held. Veeru absconded during the course of the trial.

5. The appellant pleaded not guilty to charge against him. He stated that on the day in question he had gone to the shop of Gulzar co‑accused. A police raiding party arrested him, removed his wrist watch and planted an Indian currency note on his person. He produced two witnesses in his defence.

6. In support of its case the prosecution examined Inspector Ali it P.W.3), A.S.I. Zaffar Ai (P.W. 1), Muhammad Pervaiz (P.W.4), and Muhammad Azeem (P.W. 5). The last mentioned two witnesses, namely, Muhammad Pervaiz (P.W. 4) and Muhammad Azeem (P.W. 5), were members of the public and had joined the raiding party. They were both declared hostile when they declined to support the story of the prosecution. Thus, I am left with the statement of Ali Nasir (P.W. 3) and A.S.I. Zaffar Ali (P.W. 1). They deposed that they had found the appellant present in the house of Muhammad Sadiq and that on his search one Indian currency note of the denomination of Rs.100 was recovered. Considering that no confirmation of the testimony of these two witnesses is available in so far as the appellant is concerned I am inclined to give him the benefit of doubt. I accordingly set aside his conviction and sentence, and direct that he shall be acquitted.

H.A.K. Appeal accepted.

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