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Special Criminal Appeal No. 19 of 1986, decided on 20th October, 1986.

‑‑‑S. 156(1)(8)‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Material contradictions in versions given by prosecution witnesses, and even presence of seizing officer during alleged raid doubtful‑‑Samples taken from contraband item by seizing officer withheld and instead samples taken later on by Investigating Officer, sent to Chemical Analyser‑ Accused given benefit of doubt and acquitted in circumstances.

Sohail Muzafar for Appellants.

A. Rashid Nizamani for the State.

Dates of hearing: 14th and 15th October, 1986.

The seven appellants have filed the present appeal under section 185‑F of the Customs Act, 1969, challenging the judgment, dated 5‑8‑1986 of the learned Special Judge in Case No. 168 of 1985 convicting all of them under clause 8 of section 156(1) of the Customs Act, 1969 and sentencing each of them to rigorous imprisonment for three years and fine of Rs.25, 000 or in default of payment of fine to undergo R.I. for one year more. I have heard Mr. Sohail Muzafar, learned counsel for the appellants and Mr. A. Rashid Nizamani, learned counsel for the State.

2. Brief resume of the prosecution case is given in para. 2 of the impugned judgment of the learned Special Judge and the same is reproduced hereinbelow:‑--

"The prosecution case briefly is that on 2‑6‑1985 in pursuance of an information a Coast Guards party headed by Captain Tahir Khan in a Gun Boat started patrol and surveillance over the area between Phitti Creek and Clifton. The party had left the Coast Guards Headquarters at about 2‑35 p.m. One Customs Officer Mr. Jan and an Informer of some other case were also in the party. At about 12‑15 a.m. the Coast Guards party spotted a launch in the water. The Coast Guards party challenged that launch and signalled at it for hault. The occupants of the launch did not pay any heed to such challenge and signal. Instead the launch accelerated its speed. The Gun Boat of the Coast Guards chased the launch of the culprits for a distance of about 10 km. and then the Coast Guards personnel fired in the air in order to terrorize and to stop the launch, and the launch of the culprits ultimately haulted and the Gun Boat of the Coast Guards reached it. The launch was occupied by the above seven accused. The sea was rough and, therefore, the Coast Guards party could not search the launch there and then. The Coast Guards party accosted the launch to Phitti Creek and there on search recovered from the cabin of the launch 300 bags of Charas weighing 6,000 kgs. The accused allegedly admitted that they were to smuggle the Charas out of Pakistan. The Customs party seized the Charas, impounded the launch and also arrested the accused. The Customs party prepared the Mashirnama of seizure (Exh.4‑A), inventory (Exh.4‑B) and the Mashirnama of weighment of the Charas (Exh.4‑C). It is the case of the prosecution that before searching the launch, Captain Tahir Khan had served upon the accused a notice under section 164 of the Customs Act (Exh.4‑D) and that after arrests he (the Captain Tahir Khan) had also served upon the accused a notice as contemplated by section 171 of the Customs Act (Exh.4‑E). The Coast Guards party they: brought the accused, the property and the launch to Keamari Marine Company and there Captain Tahir Khan lodged the report (Exh.4‑F). The investigation was conducted by Major Zahid Arshad. He recorded the statements of the Seizing Officer and the two Mashirs Naib‑Subedar Shaukat Ali Gill and Naik Ali Janan. He also sent the samples of Charas to Customs Laboratory under his covering letter. Major Zahid Arshad completed the investigation and challaned the accused. The Assistant Chemical Analyser Abdul Basit gave positive opinion that the samples drawn from the stuff which was recovered from the launch were Charas . "

With the assistance of the learned counsel appearing for the appellants and the State I have perused the entire record.

3. It was contended by Mr. Sohail Muzafar, learned counsel for the appellants, that a false case had been set up against the appellants. It was argued that there are such material contradictions in the versions given by the prosecution witnesses that it is doubtful whether the Seizing Officer Captain Tahir Khan had at all been the leader of the seizing party. It was pointed that according to the seizing officer, the Mashirnama was prepared at Phitti Creek at about 15 minutes after mid‑night in the early hours of 2‑6‑1985 but the circumstances show that perhaps this was not so and the Mashirnama was prepared much later either at Keamari or at the Coast Guards Headquarters. Learned counsel submitted that according to the Seizing Officer, the Mashirnama had been written by a member of staff accompanying him on the Coast Guards' boat, whereas, according to the Mashir Shaukat Ali (the only Mashir to have been examined), the hashirnama was written by Captain Tahir Khan in his own hand and this was not done in the presence of hashir Shaukat Ali. Then it was pointed out that according to the Mashirnama (Exh.4‑A) an inventory of the Charas was prepared at the spot but such inventory admittedly had not been produced. But another inventory (Exh.4‑B) had been produced, which was not made at Phitti Creek but was made much later, according to the prosecution, at Keamari after weighment of the Charas. Mr. A. Rashid Nizamani, learned counsel for the State, had submitted that apparently two inventories had been prepared and only the second inventory made at Keameri had been produced. He could not give any reasons why the first inventory reflected in the Mashirnama (Exh.4‑A) was not produced, If two inventories had been prepared, both inventories would have been produced. It can, therefore, be presumed that only one inventory was prepared and which has been produced as Exh.P.4‑B. but this inventory was not prepared at Phitti Creek, where the Mashirnama is alleged to have been prepared but the inventory was prepared at Keamari after weighment of the Charas. But the Mashirnama is clear on the point that inventory of the Charas had been prepared at Phitti Creek and this also is the evidence of Captain Tahir Khan, Seizing Officer and Mashir Shaukat Ali. The relevant part of the examination‑in‑chief of Captain Tahir Khan (Exh.4) reads as follows:‑---

"After serving notice we searched the launch. The search resulted in the recovery of 300 bags of Charas. I seized the bags of Charas and on my direction such Mashirnama and inventory were prepared by one of the our members of the staff. I produce the Mashirnama as Exh.4‑A. It bears my signature. It also bears the signatures of the 2 Mashirs. I also produce the inventory as Exh.4‑B. It is also the same and bears my signature. It also bears the signatures of the 2 Mashirs."

Mashir Shaukat Ali has stated in his examination‑in‑chief as follows:‑---

"Captain Tahir Khan seized the Charas and prepared such Mashirnama. The Mashirnama was signed by me and by Naik Ali Jannan as Mashirs. I see the Mashirnama Exh.4‑A. It is the same and bears my signature. 7 persons were occupying the launch and the Captain arrested them. Those 7 persons are the 7 accused present in Court and they are the same. The Mashirnama Exh.4‑A was read over to me before I had signed it. An inventory of the seized property was also prepared. I and Naik Ali Jannan had signed that inventory also. I see the inventory as Exh.4‑B. It is the same and bears my signature."

According to the evidence of Captain Tahir Khan and Mashir Shaukat Ali, therefore, the Mashirnama of arrest and seizure and the inventory were prepared at the same place that is at Phitti Creek. But this could not be so, as the inventory of the seized goods (Exh.4‑B) was admittedly prepared at Keamari after the weighment of Charas. In his cross‑examination later on Captain Tahir Khan attempted to give an explanation by stating that the inventory (Exh.4‑B) was not prepared on the spot but it was prepared after weighment at Keamari. This explanation is contrary to the contents of the Mashirnama (Exh. 4‑A), the statement of Captain Tahir Khan in his examination‑in‑chief and the evidence of Mashir Shaukat Ali.

Mr. Sohail Muzaffar then pointed out that it is doubtfully whether the samples of Charas which were tested by Chemical Analyser Abdul Basit, had been taken from the Charas alleged to have been seized from the appellants. It was pointed out by the learned counsel that in his evidence Captain Tahir Khan (Exh.4) has stated that the seizing party had drawn three samples from the seized Charas. Mashir Shaukat Ali has also stated about taking of samples from the seized Charas. Then Mashirnama (Exh.4‑A) is also to the effect that for sample some Charas had been sealed. The apparent purpose of taking samples at the time of seizure of Charas was to send such samples, taken in the presence of the accused, to the chemical analyser at a later stage to ascertain whether the seized goods were contraband or not. However, this was not done in the present case, as is evident from the evidence of Investigating Officer Major Zahid Arshad (Exh .9). In his examination in‑chief he had stated that he had sent the samples of Charas under his covering letter to the Customs Laboratory but in his cross‑examination he states as follows:‑--

"I had, drawn the samples of the Charas. I had sealed the samples. I had not prepared any Mashirnama or inventory in presence of any Mashirs for drawing the above samples. The stuff was in the store room of the Coast Guards. I had myself drawn the samples and had sent the same under my covering letter to the Customs Laboratory."

The samples, which were sent to the Customs Laboratory, were, therefore, not the samples, which had been taken from the seized Charas at the time of seizure. It is not clear why this was not done. Then the evidence of I.O. Zahir Arshad shows that he himself had gone to the store room of the Coast Guards and taken some samples and sealed them, for which no Mashirnama was prepared and it was these samples taken by I.O. from the store room of the Coast Guard, which were sent to the Customs Laboratory and not the samples that were drawn by Captain Tahir Khan at the time of seizure. It may further be observed that the samples, which had been drawn by Captain Tahir Khan, were produced by him in his evidence. As observed earlier, these samples were not tested. In the circumstances, the contention of Mr. Sohail Muzafar that a doubt has been created as to whether the samples that were sent to the Customs Laboratory and were tested by Chemical Analyser Abdul Basit, had in fact been taken from the Chars seized from the appellants' launch, is not without substance.

Then there are different descriptions of the launch of the appellants by Captain Tahir Khan. Different descriptions of the launch also indicate that perhaps the seizing officer was not a member of the seizing party. The time of recording F.I.R. is given as 6‑30 a.m. on 2‑6‑1985. The F.I.R. gives the weight of the seized goods as 6,000 kgs. but the weighment of the Chars at Keamari went on till about 10 a.m. When Captain Tahir Khan was confronted with this, he attempted to explain that he started drafting the F.I.R. at about 6 a.m. and the finalization of the recording of the F.I.R. continued till after 10 a.m. by which time Chars had been weighed and as such in the F.I.R. the weight of the Chars is specifically mentioned. The explanation does not appear to be very satisfactory.

5. On account of the material contradictions in the evidence of the various prosecution witnesses, a doubt has been created about the truth of the prosecution story. Benefit of this doubt must go to the appellants. As a result Special Criminal Appeal No. 19 of 1986 is allowed and judgment, dated 5‑8‑1986 of the learned Special Judge is set aside. The appellants be released forthwith, if not required in any other case.

S. G. D. Appeal allowed.

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