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Criminal Appeals Nos. 698 and 707 of 1975, decided on 16th January 1983.

---S. 167 (8) (a)--Smuggling Nakabandi--Incident taking place when it wasp still fairly dark--Concerned officer himself unable to recognise accused at time of incident and learning about their identity from information supplied to him by a subordinate official--Accused stated to be running away with their backs towards witness and names of accused given by said subordinate official on guess--Whether accused were members of party which was taking goods for purposes of smuggling, therefore, could not be answered with any amount of certainty--Conviction and sentence set aside.

State v. Hamtho 1971 S C M R 686 ref.

Mian Dilawar Mahmood for Appellants.

Nemo for the State.

Date of hearing: 16th January, 1983.

This judgment will dispose of two appeals. Criminal Appeal No. 698 of 1975 is by Munawar appellant and Criminal Appeal No. 707 of 1975 is by Muhammad Akram, Faqir Muhammad and Bashir, appellants. The four appellants in the two appeals were convicted of an offence under section 167 (8)(a), read with section 212 of the Sea Customs Act, 1878, by the Special Judge Customs at Lahore. For the said offence they were directed to suffer rigorous imprisonment for a period of three years and to pay fine of Rs.5,000 each. In default of the payment of fines they were to suffer further rigorous imprisonment for a period of six months. In the appeals the appellants have challenged their conviction and sentences.

2. The case of the prosecution was that on receipt of information that an attempt at smuggling goods to India was about to be made. S.I. Noor Khan (P.W.1) of Sutlej Rangers organized a Nakabandi party on the night between 10th and 11th March, 1968. In the area of village Thathi Koda. The Nakabandi party consisted of S.I. Noor Khan (P.W.1) Havaldar Faqir Muhammad (P.W.2), Lance-Naik Muhammad Nawaz (P.W.3) and a few other members of the Sutlaj Rangers. At about 4.00 a.m. the Nakabandi party espied six persons proceeding in the direction of the Indo-Pakistan border. They were carrying some loads on their heads, The Nakabandi party asked these persons to stop but instead of doing so, they opened fire at the Nakabandi party. The members of the Nakabandi party returned the fire. Upon this the six persons threw down the loads which they were carrying and started running away. S.I.' Noor Khan (P.W.1) fired two shots with his Very Pistol. In the light emitted by the shots the members of the Nakabandi party were able to identify the four appellants as among those who were running away. After the escape of the appellants and their companions the Nakabandi party examined the loads which they had thrown down. These comprised two wooden boxes containing 360 iron files and 80 rolls of gold thread. S.I. Noor Khan (P.W.1) recorded a report of the incident and sent it to Police Station Manawan for the registration of a case. The appellants were in due course arrested and put on trial before the Special Judge Customs.

3. The appellants pleaded not guilty to the charge against them. They denied that they were amongst the persons who were found by the Nakabandi party carrying boxes containing iron files and gold thread. They alleged that they had been falsely implicated. Munawar appellant examined one witness in his defence. The other appellants did not any evidence of their own.

4. At the trial the prosecution examined S.I floor Khan (P.W.1). Havaldar Faqir Muhammad (P.W.2) acid Lance-Naik Muhammad Nawaz (P.W.3) in support of its allegations against the appellants. Lance-Naik Muhammad Nawaz (P.W.3) who had retired in the meanwhile did not support the story of the prosecution and was for that reason declared hostile. In their evidence S.I. Noor Khan (P.W.1) and Havaldar Faqir Muhammad (P.W.2) claimed that they were members of the Nakabandi party and had seen the appellants with two other persons going in the direction of the Indo-Pakistan border with some loads on their heads. When challenged the appellants and their companions threw down the loads and ran away. The loads consisted of two wooden boxes containing iron files and roles of gold thread.

5. Admittedly the six persons who were seen by the Nakabandi party proceeding in the direction of the Indo-Pakistan border had made their escape good. The incident took place when it was still Fairly dark. In the circumstances a question arises whether the members of the Nakabandi party were able to identify the appellants as amongst chose who were going towards the border. In this context it may be mentioned that the F.I.R. in this case vas lodged at 7-30 a.m. that is within 31 hours of the incident. In the F.I.R. the names of all the four appellants are mentioned. This should ordinarily be a very strong place of evidence indicating that the Nakabandi party was able to recognize the four appellant;, at the spot. However, certain admissions were made by S.I. Noor Khan (P.W.1) and Havaldar Faqir Muhammad (P.W.2) during the course of their cross-examination which cast serious doubt about their ability in this regard. Thus, S.I. Noor Khan (P.W.1) stated:----

"Prior to this occurrence we arrested these accused (the appellant) on 4th of the same month near Eichogil and thus, knew them very well. Again said, in fact they were not arrested near Eichogil but were identified by me. I did not know the accused prior to occurrence that took place near Eichogil. I was given the names of the accused by my companions. The names of the accused were told to me by Faqir Muhammad do not know if Faqir Muhammad knew the accuse prior to the occurrence or not."

From the underlined portion it will appear that S. I. Noor Khan (P.W.1) was himself unable to recognize the four appellants at the time of the g incident and that he had learnt about their identity from the informations supplied to him by Havaldar Faqir Muhammad (P.W.2.). On his part Havaldar Faqir Muhammad (P.W.2) stated:----

"We identified the accused in the very light shots when they were at a distance of 150/200 yards. The accused were running at that time. It is correct that the accused were having backs towards us while their faces were towards opposite side."

To me it appears extremely doubtful if in the very light Havaldar. Faqir Muhammad (P.W.2) could be in a position to identify any one of the six persons from a distance of 150 to 200 yards, particularly when these persons were running away with their backs towards the witness. Therefore, it seems that the names of the appellants were given by Havaldar Faqir Muhammad (P.W.2) only on guess. On the basis of this evidence it will,. therefore, be extremely unsafe to hold that the appellants were members of the party which was taking goods for the purpose of smuggling into India.

6. In this case the challan was submitted in the Court on 1-6-1968 by the. S.H.O. of Police Station Manawan. The learned counsel contended that the S.H.O. was not competent to submit the challan and far that reason the entire proceedings before the learned Special Judge were illegal. In support of this contention he preferred to a decision of the Supreme Court in State v. Hamtho 1971 S C M R 686. As I am not satisfied that the Nakabandi party was able to identify the four appellants at the spot it is unnecessary to examine the contention of the learned counsel.

7. For the reasons stated above I am unable to support the conviction and sentence of the appellants. Accordingly I set aside their conviction and sentences and acquit them of the charge against them. They are on bail. Their bail bonds shall stand discharged.

M. Y. H. Appeal allowed.

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