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Criminal Appeal No. 126/C of 1980, heard on 23rd February, 1986.

‑‑‑Ss. 156 (1) (8) & 185‑F‑‑Smuggling‑‑Presumption of Contraband articles‑‑Accused, a driver of train travelling to and from India‑ Contraband articles of Indian origin, recovered from engine concealed in boxes covered with sand‑‑Firemen also present in engine‑‑Some precious stones and saffron recovered from train‑‑Accused not the only person having access to engine‑‑Possibility of some other official, travelling with train indulging in smuggling and putting such articles in engine without knowledge of accused, held, could not be entirely precluded and presumption against accused would not be fair and proper in circumstances‑‑Accused was, therefore, acquitted by giving benefit of doubt.

Rab Nawaz Khan Niazi for Appellant.

Sh. Maqbool Ahmad II for the State.

Date of hearing: 23rd February, 1986.

The appellant, Chenan Din, was convicted by the learned Special Judge (Customs), Lahore of an offence under section 156(1) (8) of the Customs Act and was sentenced to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs.2,000. In default of payment of the fine he was directed to receive rigorous imprisonment for a further period of three months. He has filed this appeal against his conviction and sentence.

2. The appellant was an engine driver and was employed in the Pakistan Railways. At the relevant time he used to drive trains to India and. back. On 19‑7‑1978 he was bringing a goods train from India. The train reached Wahga Railway Station at about 9 p.m. A customs party, headed by Major Abdur Rashid (P.W.3), searched the train. In the engine there were two iron boxes which were covered by sand. 0r, opening these boxes a large number of articles of Indian origin, including plastic bangles, plastic baskets, fruit tins fountain pens, coconut kernels, cardamoms and plastic shoes were recovered. These articles were of the total value of Rs.7,482. On further search of the train a plastic bag was found from underneath a compartment. The plastic bag contained saffron worth Rs.50,000 and precious stones of the value of Rs.6,200. On the incident report prepared by Major Abdur Rashid (P.W 3) a case under .the Customs Act was registered at Railway Police Station, Lahore on the following day.

3. The appellant pleaded not guilty to the charge of smuggling Indian goods into Pakistan. He disowned the articles recovered from the train and alleged that he had been falsely implicated by the railway officers as he had refused to bring articles for them from India. He produced four witnesses in his defence.

4. While recording the conviction of the appellant the learned Special Judge did not take into account the recovery of saffron and precious stones as he thought that there was nothing on the record which could satisfactorily link this 'recovery with him. Learned counsel appearing for the State has not challenged the finding of the learned Special Judge in this regard. I shall, therefore, confine myself to the evidence relating to the recovery of various articles from the engine.

5. The search of the engine was carried out by Major Abdur Rashid (P.WA) and D.S.R. Muhammad Hanif Khan (P.W. 2). They alone had entered the engine and carried out the search. According to Major Abdur Rashid (P.W.3):‑

"I and D. S. R. Hanif went into the engine of the train and found Chanan accused present there. His fireman was also present. I and D.S.R. searched the engine. I searched the right side and Hanif searched the left side. Boxes on which sand was lying after removing sand we found the lids of the boxes and on removing the lids we recovered articles of‑Indian origin such as bangles, baskets, betel leaves, coconut etc. of the value of over Rs.7,000 which were taken into possession vide recovery memo. Exh.P.A."

A perusal of his statement will show:

(a) the articles in question were not lying openly in the engine but were concealed in two boxes;

(b) the boxes were covered with sand and became visible only after the sand was removed; and

(c) at the time of recovery the fireman was also present in the engine.

The conviction of the appellant has been recorded only on the assumption that as the contraband articles were recovered from the engine, he as driver of the engine must have smuggled them himself or at least must have had the knowledge of their presence in the engine when he drove the train from India to Pakistan. In the circumstances, the only question that requires consideration in this appeal is whether it is proper and fair to draw this presumption.

6. It may be stated at the very outset that the recovery of the articles in question does raise a strong suspicion against the appellant but then there are certain circumstances appearing in the evidence which do create some doubt with regard to his complicity in the matter.

It is to be noticed that the appellant was not the only occupant of the engine The fireman also worked there. In fact the fireman was present in the pine when the raiding party searched it. It is not the case of the prosecution that of all the railway officials who were travelling by the train the appellant alone had access to the engine. The possibility, therefore, that some other officials travelling alongwith the train might have put these articles in the engine without the knowledge of the appellant cannot be entirely precluded. It is also to be noticed that according to the prosecution itself some precious stones and saffron were recovered from another part of the train. The learned Special Judge declined to link the presence of these articles on the train with the appellant. The possibility, therefore, that some other official travelling with the train was indulging in smuggling cannot be precluded. It is also to be noticed that the articles in question were not lying openly in the engine but had been concealed in boxes hidden under b the sand. It is, therefore, not improbable that the appellant was unaware of the presence of these articles in the engine. I would, therefore, give him the benefit of doubt and acquit him of the charge against him. Accordingly, I set aside his conviction and sentence. He is already on bail. His bail bond shall stand discharged.

S.A. Appeal accepted.

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