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Criminal Appeal No. 229/C of 1986, decided on 12th May, 1986.

‑‑‑S. 156(1)(8)‑‑Conviction‑‑Identification of accused‑‑Accused alongwith two others on horse seen galloping towards Indian border‑‑Accused on challenge by Rangers, throwing bundle containing 50 Kg. opium made good his escape‑‑Witnesses well‑acquainted with accused prior to occurrence‑‑Assertion not challenged by defence‑‑Defence version about annoyance of Rangers, not found believable‑‑Witnesses identifying accused from distance of 100 yards, held, was not impossible in circumstances‑‑Appeal dismissed.

Asif Akhtar Malhi and Bashir A Mujahid for Appellant.

Maqbool Ahmad II for the State.

Date of hearing: 4th May, 1986.

The appellant, Safdar Hussain (aged 35 years) was convicted by the Special Judge (Customs), Lahore of an offence under section 156(1)(8) of the Customs Act and bras sentenced to suffer rigorous imprisonment for a period of two years and a fine of Rs.2Q,U0C in default of payment of the fine he was to suffer simple imprisonment for a further period of six months. Re has filed this appeal against his conviction and sentences.

2. Together with the appellant two other persons, namely, Ijaz Ahmad and Muhammad Yaqoob were also tried. Muhammad Yaqoob absconded before the trial could conclude while Ijaz Ahmad was given the benefit of doubt and acquitted.

3. According to the prosecution on the morning of 6‑8‑1981 at 5‑30 a.m. a raiding party of the Chenab Rangers saw three horsemen galloping towards India at a distance of about 2700 yards from the Indo‑Pakistan border near border Pillar No.67/8 within the area of village Bathanwala. Of the three horsemen the raiding party was able to identify the appellant who was well‑known to its members. The raiding party challenged the horsemen whereupon the appellants threw down a bundle and made their escape good. The raiding party retrieved the bundle and on opening it found 50 kilograms of opium. S.I. Fazal Dad, who was heading the party prepared an incident report and lodged it with the company headquarters on the same day at 9‑00 a.m. A copy of this report was sent to Police Station Rayya where a case under the Customs Act was registered against the appellant and his companions on the following day at 9‑00 a.m.

4. The appellant pleaded not guilty to the charge of smuggling opium to India. He denied the allegations of the prosecution in their entirety and alleged the he had been falsely implicated. He produced three witnesses apart from examining himself in his defence.

5. The case of the prosecution against the appellant rests mainly upon the evidence of the members of the raiding party. Three of them were examined by the prosecution at the trial. They were S.I. Fazal Dad (P.W.3), Sepoy Muhammad Saleem (P.W.2) and Lance Naik Abdul Majeed (P.W.1). They all stated that they had seen the appellant alongwith two other horsemen riding towards the Indian border. On being challenged one of them threw down a bundle which was later found to contain opium. S.I. Fazal Dad (P.W.3) and Sepoy Muhammad Saleem (P.W.2) stated that the bundle was thrown by the appellant while Lance Naik Abdul Majeed (P.W.1) did not specifically name him in this regard. They all stated that they had identified the appellant as one of the three riders. They claimed that the appellant was a person of local distinction and as such they were well‑acquainted with him.

6. It appears from the evidence of the witnesses of the raiding party that they had seen the horsemen from a distance of 100 yards. Learned counsel for the appellant contended that it was not possible for the witnesses to have identified him from such a long distance. It is to be noticed that the incident took place in the month of August at 5‑30 a.m. On that day the sun rose at 5‑20 a.m. The witnesses claim that they were well‑acquainted with the appellant prior to the incident. Their assertion in this regard was not challenged by the defence. It was, therefore, not impossible for the witnesses to have identified the appellant even though they saw him from a distance of 100, yards.

7. The appellant alleged at the trial that he had been falsely implicated because he had refused to loan his tractor to one Colonel Ansari. There is nothing on the record to indicate that Colonel Ansari was in any way connected with the rangers or had any influence over them. It is, therefore, incredible that the rangers would set up a false case against the appellant just because he had refused to loan his tractor to army officer and plant more than a maund of opium on him. For that reason I am not prepared to place any reliance upon the testimony of Syed Iqbal Shah (D.W.1) and Bashir Ahmad (D.W.2) who were produced mainly to substantiate the story of the loan of tractor.

8. It was also alleged by the defence that the rangers were annoyed with the appellant because he had given information to the police instead of to them with regard to the presence of certain Indian smugglers, to show that he was member of a police raiding party which led to the arrest of the Indian smugglers he produced a copy of the F.I.R. Exh.D.W.3/A. This F.I.R. no doubt indicates that the appellant was a member of the police raiding party but there is no link between the arrest of the Indian smugglers and the rangers. There is no mention in the F. I. R. nor is there any evidence to the effect that the raid was conducted by the police on the information supplied by the appellant. I find difficult to believe that the rangers would get annoyed with the appellant just for the reason that he was a member of a police raiding party which arrested Indian smugglers.

9. For the reasons stated above I am satisfied that the appellant was seen by the raiding party of the rangers proceeding towards India with a bundle containing opium. He was, therefore, 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 not excessive. The appeal is dismissed.

S. A Appeal dismissed.

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