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Criminal Appeal No. 498(C) of 1984, decided on 1st April,1984.

‑‑‑Ss. 156(1)(8) & 178‑‑Appreciation of evidence‑‑Evidence of eye‑witness was recorded on two separate dates‑‑On first date said witness supported prosecution case while on second date he made lot of concessions in favour of accused and as such he was declared hostile‑ Evidence of such witness, held, merited exclusion from consideration.

‑‑‑Ss. 156(1)(8) & 178‑‑Accused who was Sub‑Inspector in Sutlej Ranger was allegedly identified while running away from a taxi‑cab which came from side of India and was stopped by Sutlej Rangers‑‑Taxi‑cab had two other occupants and certain bottles of whisky were recovered from same‑‑Case registered on report of Deputy Superintendent Rangers‑ Accused raising plea that he was involved falsely by first informant due to enmity but not caring to substantiate his allegation‑‑Eye‑witnesses though having no motive to perjure themselves against accused yet their evidence was doubtful‑‑Plea of alibi raised by accused was supported by strong evidence‑‑Prosecution story highly doubtful‑ Prosecution, held, failed to prove its case beyond all reasonable doubts‑‑Accused acquitted in circumstances.

Zaheer Ahmad Khan and Rana Abdul Hamid for Appellants.

Maqbool Ahmad Sheikh for the State.

The appellants, Syed Altaf Hussain Shah (30 years) and Haqnawaz Butt (28 years) were convicted by the Special Judge, Customs, Lahore of an offence under section 156(1)(8) read with section 178 of the Customs Act and were sentenced to suffer rigorous imprisonment for a period of four years and to pay fines of Rs.10,000 each; in default of payment of the fines they were to suffer simple imprisonment for a further period of six months. In addition, Altaf Hussain Shah was also ordered to receive five stripes. The appellants have filed separate appeals (Criminal Appeal Nos. 496 and 498 of 1984) against their convictions and sentences. This judgment will dispose of both of the appeals.

2. According to the prosecution, on the night between 26th and 27th of December, 1981, a picket of the Sutlej Rangers was present in connection with some other case near the defence gap in the area of village Narwar at a distance of about two miles from the Indo‑Pakistan Border. In the early hours of the morning, at about 5 a.m. a taxi‑cab was seen coming from the direction of India. It was made to stop. As soon as it came to a halt, one of the occupants thereof ran away. He was identified as Syed Altaf Hussain appellant in the headlights of a motor vehicle present at the spot. The taxi‑cab had two other occupants, namely, Haqnawaz Butt appellant and one Dilawar who was the driver. On opening the luggage compartment of the taxi‑cab, 48 bottles of Indian whisky were recovered. It may be mentioned that at the relevant time Syed Altaf Hussain was serving as Sub‑Inspector in the Sutlej Rangers and was posted as Platoon Commander at Acodak which was at a distance of about 15 miles from village Narwar. On report recorded by Deputy Superintendent Muhammad Raza (P.W.1) a case was registered at Police Station Manawan on 27‑12‑1984 at 5‑25 p.m.

3. Dilawar driver absconded before the trial could start. Consequently, only Syed Altaf Hussain and Haqnawaz Butt were placed on trial.

4. The appellants pleaded not guilty to the charge under section 156(1)(8), read with section 178 of the Customs Act and stated that they had been falsely implicated in the case. The story of Syed Altaf Hussain was that he had personal enmity with the Deputy Superintendent Muhammad Raza (P.W.1) on account of his refusal to provide a Government mason for doing private work for the latter. He further alleged that at the relevant time he was present at his own post and was on duty there. Haqnawaz Butt simply stated that the case against him was false. In defence, the two appellants examined five witnesses.

5. The case of prosecution against the appellants rests mainly on the testimony of two witnesses, namely, Deputy Superintendent Muhammad Raza (P.W.1) and Inspector Shamim Akhtar (P.W.2). They were members of the picket and were stated to be present at the time when the taxi‑cab allegedly carrying the appellants turned up at the spot from the direction of India. Haveldar Muhammad Ayub (P.W.3) was also a member of the picket. His evidence was recorded on two separate dates. On the first date he supported the case of the prosecution. Before he appeared for the second time in the witness‑box, he himself had been arrested in a smuggling case. On the second date he made a number of concessions in favour of the appellants. For this reason, he was declared hostile by the prosecution itself as he was an unreliable witness, I shall exclude his statement from consideration.

6. Deputy Superintendent Muhammad Raza (P.W.1) and Inspector Shamim Akhtar (P.W.2) stated that they were present in the area of village Narwar at the relevant time and were busy in the preparation of documents in respect of another case relating to smuggling of woollen shawls. At about 5 a. m. they saw a taxi‑cab coming from the direction of India. The picket became alert and started its Pick‑up in order to be ready to chase the taxi‑cab. The taxi‑cab was made to stop about a dozen yards away from the place where the picket had taken position. Immediately thereafter Syed Altaf Hussain appellant who was sitting in the taxi‑cab came out and started to run. He was identified by Inspector Shamim Akhtar (P.W.2) in the headlights of the Pick‑up. Dilawar, driver of the taxi‑cab, and Haqnawaz Butt appellant who was sitting alongwith him were captured. On search of the luggage compartment, 48 bottles of Indian whisky (Aristocrat) were recovered.

7. Syed Altaf Hussain stated that he had strained relations with Deputy Superintendent Muhammad Raza (P.W.1) but he did not care to substantiate this allegation. Ordinarily, I would have had no hesitation in accepting the evidence of Deputy Superintendent Muhammad Raza (P.W.1) and Inspector Shamim Akhtar (P.W.2) for they had no motive to perjure themselves against the appellants, but then there are certain circumstances appearing on the record which make their evidence somewhat doubtful. Admittedly, on the same night the local police had also organized a Nakabandi party at a distance of about 200 yards from the place where Deputy Superintendent Muhammad Raza (P.W.1) and his party were present. The leader of the police party was A.S.I. Muhammad Aslam (D.W.5). This officer was examined by the appellants in their defence. He stated that on the night of occurrence he had seen Deputy Superintendent Muhammad Raza (P.W.1) with two seized vehicles alongwith some liquor at about 11/12 mid‑night. If the statement of this witness is accepted as correct then the story of Deputy Superintendent Muhammad Raza (P.W.1) that he had found the appellants travelling in a taxi‑cab at 5 a.m. becomes doubtful for it would then appear that he was in possession of the liquor and the taxi‑cab many hours before the alleged time of arrival of the appellants at the spot. It was not the case of the prosecution that there was also another case of detection of smuggled liquor on the night in question. It may be mentioned that the statement of A.S.I. Muhammad Aslam (D.W.5) finds support from an entry which was made in the Roznamcha of the police station soon after his arrival there. This entry bears the time 5‑00 a.m. which incidentally is also the time of the alleged arrival of the taxi‑cab at the place where the picket was present. It is to be noticed that the police station in question was 12 kilometer away from the said place. I should, therefore, think that the testimony of A.S.I. Muhammad Aslam (D.W.5) as supported by the entry in the Roznamcha of the police station seriously comprises the story of the prosecution.

8. Admittedly, Syed Altaf Hussain was posted as Platoon Commander at the border post at Acodak. A number of persons serving at the said post were examined by him in his defence. They stated that he was present at the post between 2 a.m. and 6 a.m. on the night in question. Thus, Lance Naik Fazal Hussain (D.W.3) deposed that on the relevant night he returned to the post from patrol duty at 2 a.m. On return to the post he made a report to Syed Altaf Hussain who was present there at that time. Sepoy Ahmad Khan (D.W.2) stated that he was on sentry duty at the post on the relevant night from 3 a.m. to 5 a.m. At 4‑30 a.m. a telephone call came from the Company Heaquarters which was attended to by Syed Altaf Hussain. This part of his statement was supported by Lance Naik Fazal Hussain (D.W.3) who had overheard Syed Altaf Hussain talking on the telephone. Sepoy Misr Khan (D.W.4) was the Telephone Operator at the Company Headquarters. He himself heard Syed Altaf Hussain speaking at the telephone. Sepoy Ahmad Khan (D.W.2) and Lance Naik Fazal Hussain (D.W.3) further stated that they had attended the roll call which was taken by Syed Altaf Hussain at 6 a.m. If the statement of these witnesses are accepted, the story of Deputy Superintendent Muhammad Raza (P.W.1) and Inspector Shamim Akhtar (P.W.2) that they held up a taxi‑cab at 5 a.m. with Syed Altaf Hussain sitting in it, becomes highly doubtful.

9. For the reasons stated above, I am unable to hold that the prosecution has been able to prove its case against the appellants beyond all reasonable doubts. I would accordingly accept their appeals, set aside their convictions and sentences and acquit them of the charge against them. They shall be set at liberty forthwith if not required in any other case.

10. It is surprising that both the versions in this case, that is, the one canvassed by the prosecution and the other preferred by the appellants, find support from the employees of the same department. Obviously one of the versions is false. It is surprising that the department concerned has not so far cared to take any action against those who have made false statements. This is indeed a matter of serious concern. A copy of the judgment should be sent to the Director- General, Sutlej Rangers for information.

H. A. K. /280/L Appeal accepted.

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