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Criminal Appeal No180(C of 1981, decided on 29th January, 1986.

‑‑‑S. 156(8)‑‑Nakabandi party‑‑Evidence, appreciation of Nakabandi party arranged by Sutlej Rangers headed by a Major‑‑Accused held up while proceeding towards Indian Border with 100 watches of foreign origin‑‑Witnesses not previously acquainted with accused‑‑No reason for witnesses to perjure against accused who was complete stranger to them‑‑Accused not belonging to that area‑‑‑Defence version found not convincing ‑Possession of large number of watches at unusual hour near Indo‑Pakistan Border, held, could lead to only one inference that he was attempting to smug a them to India‑‑Conviction upheld in circumstances.

Ch. Rashid Ahmad for Appellant.

Sh. Maqbool Ahmad II for the State.

Date of hearing: 26th January, 1986.

The appellant, Talib Hussain (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 three years and to pay a fine of Rs.1,000 in default of payment of the fine he was to suffer simple imprisonment for a further period of three months. He has filed this appeal against his conviction and sentence.

2. According to the prosecution, on 28‑10‑1980, on receipt of information that an attempt to smuggle foreign watches to India would be made, Major Ghulam Kibria (P.W. 1) of Sutlej Rangers organized a Nakabandi party. The Nakabandi party took position at 1.30 a.m. on a bridge on the B.R.B. canal at a short distance from village Padri. The bridge was about four miles from the Indo‑Pakistan border. At 4.30 a.m. the appellant came to the bridge while going in the direction of India. He was held up. He was carrying two bundles. From these bundles, 100 RICOH automatic watches of the value of Rs.90,000 were recovered. He was arrested. On a report prepared by Major Ghulam Kibria (P.W. 1) a case under the Customs Act was registered against him at Police Station Barki on .the following morning at 9.30 a.m.

3. The appellant pleaded not guilty, to the charge of smuggling foreign watches to India. He stated that he was an employee of one Islam Shami who was arrested at the railway station Lahore with the watches. Later, Islam Shami was left off and instead he was falsely implicated in this case. He produced two witnesses in his defence.

4. The case of the prosecution against the appellant rests upon the testimony of Major Ghulam Kibria (P.W. 1), Muhammad Raza, (P.W. 2) and Bashir Alam (P.W. 3). Muhammad Raza (P.W. 2) and Bashir Alam (P.W. 3) were serving as D.S.R. and Sub‑Inspector, respectively in the Sutlej Rangers at the relevant time. All the three witnesses deposed that they were members of the Nakabandi party and held the appellant near Padri bridge with 100 watches while he was proceeding in the direction of India. There is no 'reason at all why these witnesses should, have deposed against the appellant. It does not appear that they were acquainted with him prior to the incident in question. It is incredible that they would perjure themselves against a person who was a complete stranger to them.

5. The defence version that the watches were in fact recovered from the employer of the appellant at the Lahore railway station is not at all convincing even though the‑ appellant produced two witnesses to substantiate it. The witnesses produced by the prosecution are responsible officers of the border force and it does not appear from the record that they had any soft corner for Islam Shami and further it does not appeal to reason that they would let off the real culprit and instead foist such a large number of watches upon an innocent person. I would accordingly reject the defence version.

6. The learned counsel for the appellant pointed out that in the incident report prepared by Major Ghulam Kibria (P.W. 1), which later formed the basis of the F.I.R., section 178 of the Customs Act had also been mentioned. This section creates criminal liability against companions of a person possessing goods liable to confiscation under the Customs Act. The learned counsel argued that the mention of this section in the incident report indicated that at the relevant time the appellant was accompanied by another person also which fact supported his version. I do not think that I can accept this contention. The incident report when read as a whole clearly indicates that the appellant was all alone when he was held up by the Nakabandi party. That being so, the mention of section 178 in the‑incident report was merely based on the ignorance of the scope of the said section. It certainly does not warrant any inference that the appellant was accompanied by some other person at the relevant time.

7. The learned counsel for the appellant also attacked the prosecution story .on the ground that no member of the "public was called by the Nakabandi party at the time of search of the appellant. I cannot regard this criticism of the prosecution version as fair when I consider the time at which the appellant was caught. There would hardly be any person moving around the Padri bridge so early in the morning at the end of October.

8. For the reasons stated above I am satisfied that the appellant was caught at the Padri bridge with 100 watches of foreign origin by the Nakabandi Party. The appellant does not belong to that area. The possession of such a large number of watches at so unusual hour near' the Indo‑Pakistan border can lead to only one inference, that is, that he was attempting to smuggle these watches to India. Thus, he was rightly convicted by the learned Special Judge of an offence under section 156 (1)(8) of the Customs Act. The sentence awarded to him is by no means excessive. The appeal is dismissed. The appellant shall now surrender to his bail to undergo the unexpired portion of hiss sentence.

S. A. ‑‑‑‑ Appeal dismissed.

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