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Special Criminal Appeal, No.18 of 1977, decided on 23rd February, 1987.

---S.167, cl.(8)--Smuggling--Names of accused not appearing in first information report--Sizable quantity of gold was already recovered from sea bed before arrest of accused--No direct evidence available against accused--Evidence relied by prosecution and referred to by Trial Court in support of conviction of accused consisted of retracted confessional statements of accused, ocular evidence of Mashirs and circumstantial evidence--Confessional statements were recorded after fifteen days of arrest of accused and prosecution failed to offer any explanation for this inordinate delay--None of prosecution witnesses claimed to have seen accused committing offence or even witnessed dumping of gold in sea--No ocular testimony was available in case against accused--Circumstantial evidence relied by Trial Court not sufficient to sustain conviction--Finding of Trial Court against accused based on misreading of evidence--Held, case against accused was not established beyond reasonable doubt--Conviction and sentence set aside in circumstances.

Sarwar Khan for Appellants.

Mrs. Salima Nasiruddin for the State.

Date of hearing: 23rd February, 1987.

The appellants have challenged their conviction and sentence awarded by the Special Judge (Taxation and Customs) Karachi, a/s. 167, clause (8) of Sea Customs Act. The learned Judge sentenced the appellants to undergo R.I. for two years and pay a fine of Rs.10,000/- each or in default of payment of fine to suffer further R.I. for one year. The appellants were tried for the offences a/s. 167, clause (8) of Sea Customs Act alongwith 5 others but two of the accused persons namely Haji Bacho s/o Siddiq and Muhammad Hafiz son of Haji Barkat, died during the proceedings while Haji Wali Muhammad, Abdur Rehman and Gul Muhammad were acquitted in the case by the learned Judge.

According to the case of prosecution, Customs Authorities had received information in May, 1967 that accused Wali Muhammad, Gulloo, Bachayo and others had imported huge quantity of contraband gold in Pakistan which was likely to be discharged somewhere in the creek along the Karachi Sea Coast. On this information the Customs officer suspected region as well as on the movement of above-named person. As a sequel to above a Customs party led by SPO A. R. Khan chased a jeep bearing No. KAF 852 on the night of 18/19th May, 1967 and reached 'Sunoil' jetty at about 2 a. m. Accused Wali Muhammad and Bachayo who were in that jeep, jumped out of it and managed to escape in darkness while driver of the jeep was hauled up by the Customs party alongwith the jeep. The Customs party then interrogated several fishermen of the area and came to know through Ahmed and Yakoob that a launch had brought gold but sensing some danger they dumped the gold in sea about 4 miles away from 'Sunoil' jetty. The above facts are recorded in the FIR lodged by SPO A.R. Khan on 29-5-67 at 10 a.m. The Customs Authorities on the above information cordoned off the entire area and between the period from 30-5-1967 to 10-6-1967 recovered from seabed 56,970 tolas of gold while another quantity of 2,110 tolas of gold was recovered from the nearby bushes.

It is quite clear from the above-stated facts that the names of the present appellants did not appear in the FIR. They were arrested on 8-6-1987 and before their arrest a sizable quantity of gold was already recovered from the seabed by the Customs Authorities between 30-5-1967 to 7-6-1967. There is no direct evidence in the case against these appellants that they smuggled gold in Pakistan. The pieces of evidence relied by the prosecution and referred by the learned trial Court in support of the conviction of appellants consisted of their alleged confessional statements, ocular evidence of two Mashirs and the circumstantial evidence namely recovery of gold on the alleged pointation of the appellants. The confessional statements of the accused which were allegedly recorded before a magistrate on 23-6-1967 were retracted at the trial. These confessional statements have no evidentiary value as they were recorded after about 15 days of the arrest of the appellants and prosecution failed to offer any explanation for this inordinate delay in recording their confessional statement. In the case of Tooh v. State 1975 P Cr. L J 440 a Division Bench of this Court ruled out of consideration a confessional statement on ground that normally even a delay of 24 hours would be fatal to the acceptance of a judicial confession.

The second piece of evidence in the case against the appellants relied by the learned trial Judge is the oral evidence. The learned Judge while discussing the oral evidence against the accused/ appellants observed as follows at page 483 of the paper book: -

"Now I proceed to deal with the oral evidence. There are two eye-witnesses to incident who saw the accused actually committing the offence. The prosecution witnesses also depose as to certain recoveries made on the pointation of accused Urs and Jaffer and also about the movements and circumstances connecting the accused with the commission of offence."

The learned counsel for the State was unable to point out any single prosecution witness who claimed to have seen the appellant committing the offence. On the contrary it is an admitted position in the case that no one even witnessed the dumping of gold in the sea. PW Juma (Ex.3) and Usman (Ex.7) referred by the trial Judge, in their evidence stated that in the month of May, 1967 while they were fishing at Pitiani Creek before sunset they saw the appellants in a small boat alongwith 2 others approaching a launch which was anchored there and they started loading some goods from the launch in their boat and then sailed away. These witnesses nowhere stated that the goods loaded by the appellants from the launch on their boat was gold. The other two witnesses namely, Hussain and Ahmed examined by the prosecution who were also mashirs, categorically toted that on the night the incident allegedly took place it was dark and they could not see anything except hearing noise of gunshot and dumping of something in the sea. These witnesses also stated before the Court that the appellants were brought by the Customs party alongwith them and therefore, the identification of the appellants by these witnesses in Court was of no significance at all. The other ocular evidence in the case produced by the prosecution consisted of Preventive Officer Shafqat Ahmed, Ex. 2, Jumo Ex. 3, Preventive Officer Abdullah Khan Ex.6, Usman Ex.7, Yousuf Ex.8, Hafizur Rehman Ex.9, Abdul Khaliq, Ex. 10, ASI Muhammad Hussain Ex. 11, Preventive Officer Ejazur Rehman Ex.12, Behram Khan Ex.13, Muhammad Ex.14, Inspector Khurshid Ali Khan Ex.15, ACM Soreas Ex.16, Law Officer of Customs A.R. Khan Ex.17 and Abdul Rauf Ex.18. None of these witnesses claimed to have seen the appellants smuggling the gold or dumpting it in the sea. It is, therefore, quite clear that there was no ocular testimony available in the case against the present appellants to connect them directly with the offences and as such the above-quoted observation of the trial Judge that there are two eye- witnesses to, incident who saw the accused actually committing the offence is obviously based on misreading of evidence. The only other piece of circumstantial evidence relied by the learned trial Judge against the accused is the alleged recovery of jackets of gold at the instance of the present appellants. It is significant that the recovery of a gold by the Customs Authorities was spread over a period of 12 days in presence of large number of fishermen and Customs officials and it was only on one such occasion that these three accused were brought by the Customs people. Although the two mashirs Hussain and Ahmad examined by the prosecution had stated in their evidence before the trial Judge that some of the jackets of gold were recovered at the instance of the appellants but this piece of evidence, alone was not sufficient to sustain the conviction .of appellants in the circumstances of the case as it is an admitted position that the initial recovery of gold was made by the Customs Officer on the pointation of two prosecution witnesses who also acted as Mashirs, namely, Hussain and Ahmed (Exs.4 & 5) and as such the case of appellants was at par with these two witnesses and in the absence of any other corroborative evidence to the effect that the gold was concealed by the appellants in the seabed they could not be, held guilty of any offence. I am, therefore, of the view that the case against the appellants could not be established beyond reasonable doubt. I accordingly accept this appeal, set aside the convictions and sentences of the appellants. The appellants are on bail, their bail bonds are cancelled.

M.Y.H./N-38/R Appeal accepted.

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