Find a Lawyer

Criminal Special Appeal No.16 of 1978, decided on 22nd June, 1987.

---S.156(1) (89)--Prosecution case supported by complainant, Mashirs and another Customs; Officer--One of the prosecution witnesses, a private person having no enmity with accused--Contention that Court should not have convicted accused on sole testimony of Customs Officer, repelled.

Yar Muhammad v. State 1978 P Cr. L J 619 and Abdul Jabbar v. State 1987 P Cr. L J 44 distinguished.

---S.156(1) (89)--Merely because one of the Customs Officers was inimically bent towards accused, held, no was ground for disbelieving other witnesses.

Azizullah K. Sheikh for Appellant.

A. Sattar for the State.

Dates of hearing: 9th and 10th February, 1987.

The appellant who has been convicted by the learned Special Judge (Customs and Taxation Karachi), under clause 89 of Section 1560) of Customs Act, 1969, has appealed against his sentence and conviction.

It was alleged by the prosecution that the present appellant alongwith the absconding accused Imam Bukhsh and several others who could not be identified at the time of incident were found carrying smuggled gold weighing 21,940 tolas. 10,623 watches and 58 bales of cloth and some other miscellaneous items in one Truck and one jeep. The jeep in which the present appellant and the absconding accused Imam Bakhsh were travelling was intercept6d by the Custom Party led by S.P. O.M.M. Qureshi and S.P.O: Rashid A. Sial on the Karachi side of Hub River opposite Sakran alongwith the truck but all the accused person including the present appellant managed to escape from the scene leaving behind the jeep and the truck under cover of firing. The jeep in which the present appellant was travelling on inspection yielded 21,940 tolas of Gold and 10,623 watches of foreign origin while the truck was found carrying 58 bales of cloth and some other miscellaneous articles. All the accused were shown absconder in the challan. However, subsequently Haji Hashim Shakar (appellant) and Sakhidad surrendered before the Special Judge (Custom and Taxation) Karachi, and were tried in the case The learned Judge acquitted Haji Hashim and Sakhidad in the case while present appellant was convicted to undergo R.I. for 2 years and pay fine of Rs.30,000/- or in default of fine to suffer further R.I. for one year.

Mr. Azizullah Shaikh, the learned counsel for the appellant firstly contended that the evidence on record did not prove the case against appellant beyond reasonable doubt and secondly, the material on record reasonably established that the present case was the out-come of enmity between the appellant and two Customs Officers Mobeen Ahmed and Muhammad Ismail at whose behest the appellant was falsely implicated in the case. It is also urged by the learned counsel that the sole testimony of Custom Officers in the case against the appellant was not sufficient to sustain his conviction and. sentence.

The recovery of contraband gold and smuggled watches from the jeep in which the appellant was travelling is not disputed. The valuation of the smuggled items is also not denied. The appellant however, denied that he was present in the jeep which carried gold and watches and alleged his false involvement in the case because of enmity with two Custom Officers. The prosecution in support of his case examined Mir Muhammad Qureshi S.P.O. Custom House (P.W.1 Ex.8), Sultan Ahmed (PW.2 Ex.O), Sanghar son of Sualeheen (PW.3 Ex.10), Rashid Sial, S.P.O. Custom House Karachi (PW.4 Ex.12) and Rahim Bakhsh S.P.O. Custom House (PW.5 Ex.13). M.M. Qureshi and Rasheed Sial S.P.Os were the members of the Customs party which intercepted the smugglers and recovered the smuggled goods. Sultan Ahmed acted as a mashir of recovery memo and was accompanying the raiding Custom party from the very beginning and had witnessed the whole incident alongwith P. Ws. 1 and 4. Both P. Ws.l and 4 were known to the present appellant from before and they claimed to have identify him in the jeep before he escaped. The incident took place at about 1 P.M. during day time and the accused /smugglers escaped from the scene after being intercepted by the Custom party while ascending in their vehicles towards Karachi side of Hub River. In these circumstances, the learned trial Judge rightly held that the possibility of accused having been seen and identified on encounter by the Custom party before they absconded and abandoned their vehicles was not improbable. Mr. Azizullah Shaikh, the learned counsel for the appellant contended that in view of the fact that the prosecution had admitted' that there was exchange of fire between Custom party and smugglers upon encounter, there was only possibility of a chance glance of the accused by the Custom party and as such the possibility of a mistaken identity could not be ruled out. The contention of the learned counsel has no force. Firstly, the incident had taken place at broad daylight at about 1 p.m. Secondly, the two Custom Officers P. Ws. 1 and 4 knew the present appellant before the incident. Thirdly, according to evidence of P.Ws.2 and 4 the Custom party having scene the vehicles of smugglers asconding towards Karachi side of Hub River challenged the smugglers and blocked the road by their jeep which means that they came almost in close contact with smugglers and lastly according to prosecution evidence the smugglers did not start firing on the Custom party on being challenged but attempted to escape and after covering some distance they started firing. The above evidence of prosecution show that the Custom party had fair chance of seeing the occupant of jeep and truck and as it was a day time and two accused were known to them from before, there was no difficulty for them to identify the accused persons. It has also come in the evidence of P.W.2 Sultan who was accompanying the Custom Party as a Mushir that the two Custom Officers P.W.1 and P.W.4 had told him immediately after the incident that they had identified the two smugglers as Shakar (present appellant) and Imam Bakhsh. The next contention of Mr. Azizullah Shaikh, is that the Court should not have convicted the appellant on the sole testimony of Custom Officers and in this connection the learned counsel relied on the case of Yar Muhammad v. State 1978 P Cr. L J 619 and Abdul Jabbar v. State 1987 P Cr. L J 44. In the first cited case out of 6 witnesses 4 were Police Officers while two were private person. Both the private witnesses during the course of enquiry not only stated that they did not know the accused in the case but they further stated that they were called at the police, station and were forced to give evidence against the accused. It was in these circumstances that the proceedings against the accused person under Section 110, Cr.P.C. and the orders passed against them under Sections 112 and 117(3), Cr.P.C. were questioned by the Court. In the second cited case which was under Article 4 of Prohibition (Enforcement of Hadd) Order 4 of 1979, the evidence against the accused consisted of only the seizing officer who was also the complainant and the investigation officer in the case while the mashir of recovery who was a private person and an important witness in such cases did not support the prosecution and other independent witnesses though available were not examined in the case. It was in these circumstances, the learned Judge while allowing the appeal of convict/ appellant held as follows:--

"In cases under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979, the entire case of the prosecution depends on the recovery and as such in a case, where the Mashirs do not support the prosecution, rule of prudence for safe dispensation of Justice would require that conviction should of be sustained on the solitary statement of the Seizing Officer, who is also the complainant as well as the Investigating Officer. In such a situation, if apart from the Mashirs, other evidence was available, such evidence should be brought on record by the prosecution, in the instant case other evidence was available, as would be evident from the F.I.R. According to the complainant, who is also the Seizing Officer as well as the Investigating Officer, at the time of the incident, four constables were with him and the names of all these four constables with their buckle numbers are also given in the F.I.R. It appears that neither those four constables were examined under section 161, Cr.P.C. by the investigating Officer nor any one or more of them were examined as prosecution witnesses.

In the circumstances of the instant case, where the Mashirs have not supported the prosecution case and 'other evidence was available but such other evidence was not brought on record, it was unsafe for the trial Court to base the conviction of the appellant on the solitary statement of the Seizing Officer, who was also the complainant as well as the Investigating Officer. It may further be observed that one defence witness had been examined by the appellant who deposed about the innocence of the appellant."

None of the above-cited cases have any similarity to the present case' in so far facts are concerned. In the case before me the prosecution: case is supported by P.W.1 who is complainant. The prosecution case' also find full support from P.W.2, P.W.4 and P.W.5 who were the mashir another Custom Officer accompany the complainant and I.O. in the case. There is no reason to disbelieve the evidence of P.W.2 who is a private person and who is neither inimical to the appellant; nor was ever known to appellant from before and fully corroborated the evidence of P.Ws.l and 4 in the case. The last contention of Mr. Azizullah Sheikh in the case is that the appellant was involved on account of enmity with two other Custom Officers. This aspect of this case was dealt with by the learned trial Judge in the impugned judgment as follows:--

"If we accept the proposition that if a person has enmity with one Customs Officer, then all the Customs Officers will be deposing against him falsely, it will give rise to very dangerous situation and then such person can act with impunity every allegation made against him will have to be disbelieved. Admittedly there is no direct enmity or ill-will between P.W. Mr. Mir Muhammad Qureshi P.W. Sial and accused Shakar. It will be however noted that accused Shakar has been named in the F.I.R. and that he is not the only person named but with him is named absconding accused Imam Bux. I do not want to discuss the merits of the case against accused Imam Bux in his absence, but on the record of this case, there is no reason suggested for falsely implicating Imam Bux. It will also be pertinent to note that in spite of the fact that number of persons are said to have escaped, still the names of only two person have been shown to have been identified by the Customs Officers. Even accused Hashim who is the principle accused in this case is not stated to have been identified by these witnesses. Thus it will be seen that M/s. Qureshi and Sial are not exaggerating as to whom they had identified and there appears to be no attempt on their part to implicate any body else whom they did not identify. The only witness examined by the accused in defence is Ramzan, who has deposed about the case filed by the accused against M/s. Mubeen and Jafry which allegation I have already considered above. In my opinion I cannot reject the evidence on oath of these two witnesses Mr. Mir Muhammad Qureshi and Rashid Sial only because 4 years earlier accused Shakar had filed a case against two Customs Officers M/s Mubeen and Jafry and which case had been compromised two years prior to the alleged seizure and incident."

No exception can be taken to the above conclusion of the learned trial Judge. There is no merit in this appeal which is accordingly dismissed. The appellant is on bail. His bail bonds are cancelled and he is remanded to judicial custody to serve out the remaining sentence.

K .B . A . /S-90/ K

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.