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Criminal Appeal No. 514/C of 1980, decided on 22nd February, 1986.

‑‑‑S. 156(1)(89)‑‑No evidence existing to show that accused was seen smuggling articles recovered from his house‑‑Prosecution evidence merely indicating possession‑‑Conviction of accused on charge of smuggling, held could not be sustained in circumstances.

----S. 156(1)(89)‑‑Recovery of smuggled goods‑‑Father and mother of accused also resided in house from where recovery was made‑‑Nothing existing on record to show that smuggled articles were hidden in house at a place about which accused had exclusive knowledge‑‑Possibility of fact that accused had merely knowledge where said articles were being kept not ruled out‑‑Provisions of clause (89) of S .156 (1) of Customs Act punishes possession and not knowledge‑‑Conviction of accused on charge of possession smuggled goods set aside as being not sustainable.‑‑[Recovery].

Malik Muhammad Qasim for Appellant.

Sh. Maqbool Ahmad for the State.

Date of hearing: 16th February, 1986.

The appellant, Muhammad Ikram (aged 25 years) was convicted by the 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 two years and to pay a fine of Rs.5.000 in default of payment of the fine he was directed to undergo rigorous imprisonment for a further period of six months. Together with him his father, Muhammad Amin, was also tried on the same charge but was acquitted by the learned Special Judge. The appellant has filed this appeal against his conviction and sentence.

2. According to the prosecution on 28‑1‑1978, on receipt of information Major Shamsher Jang (P.W.1) of the Rangers organized a raiding party. The raiding party took position on Malikpurra bridge within the area of Police Station Sadar Bahawalnagar. In the evening the appellant and his father came there in a wagon. They were held up and searched. Nothing objectionable was recovered from their possession. They then led the raiding party to their house in Chak Abdul Haq and from there produced a woollen Chadar of Indian origin, 3 seers of almond‑kernels and imitation stones weighing 825 Tolas. On the basis of this recovery a case under the Customs Act was registered against them.

3. At the trial the appellant and his father pleaded not guilty to the charge and denied the allegations of the prosecution. They did not lead any evidence in their defence.

4. In support of its allegations the prosecution examined five members of the raiding party. They were Major Shamsher Jang (P.W.1), Havaldar Feroz Khan (P.W.3). Karim Bakhsh (P.W.4). Noor Muhammad (P.W.5) and Inspector Umar Hayat (P.W.6). Apart from Karim Bakhsh (P.W.4) and Noor Muhammad (P.W.5) all the witnesses were serving in the Rangers at the relevant time. Havaldar Feroz Khan (P.W.3). Karim Bakhsh (P.W.4) and Noor Muhammad (P.W.5) were declared hostile by the prosecution. I. therefore, need not take their statements into consideration. Major Shamsher Jang (P.W.1) and Inspector Umar Hayat (P.W.B) deposed that on search of the house of the appellant and his father a shawl, almond‑kernels and imitation stones were recovered. There is a discrepancy in the statements of these two witnesses. Thus, Major Shamsher Jang (P.W.1) stated that it was only the appellant who had taken the raiding party to his house. On the other hand, Inspector Umar Hayat (P.W.6) deposed that the appellant and his father had together taken the raiding party to their house. It may be mentioned that the version of Inspector Umar Hayat (P.W.6) is in conformity with the version given in the F.I.R.

5. The learned Special Judge has elected to convict the appellant of the offence of smuggling. It may be mentioned that there is no evidence that the appellant was seen smuggling the articles recovered from his house into Pakistan. The evidence of the prosecution merely indicate possession. That being so, the conviction of the appellant on the charge of smuggling cannot be sustained.

6. The next question for consideration is whether the appellant can be convicted on a charge of keeping smuggled goods in his possession. It appears from the evidence of the prosecution itself that in the house from where the recovery was made the father and mother of the appellant also resided. There is nothing to show that the articles in question were hidden in the house at a place about which the appellant had exclusive knowledge. The very fact that some other member of the appellant's family was keeping the articles in question in his possession and that the appellant had merely knowledge where these articles were being kept cannot be precluded. It is to be noticed that clause (89) of section 156(1) punishes possession and not knowledge. That being so, the conviction of the appellant even on the charge of possessing smuggled goods cannot be sustained.

7. For the reasons stated above I set aside the conviction and sentence of the appellant and acquit him of the charge against him. He is on bail. His bail bond shall stand discharged.

H.A.K. Appeal accepted.

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