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Criminal Appeal No.669 of 1975, decided on 22nd March, 1983.

‑‑‑Ss. 156(1) (8) & 178‑‑Evidence, appreciation of‑‑Nakabandi party arresting accused near Indian ' border with bag of 201 seers of cardamom‑‑Witnesses, official of Rangers, supporting prosecution having no motive to falsely implicate accused‑‑Evidence of defence witnesses found most unconvincing‑‑No reasons were found to disbelieve prosecution witnesses‑‑Accused, having been found coming from direction from India with bag of cardamom,‑‑Conviction upheld in circumstances.

‑‑‑Ss. 156(1)(8) & 178‑‑ S.H.O. of Police Station, whether competent to submit challan‑‑Such officer, held, did possess powers of customs officer under Customs Act at that time and, therefore, was competent to submit challan in Court.

‑‑Ss. 156(1)(8) & 178‑‑Sentence‑‑Quantum of‑‑Incident 12 years old‑ Value of cardamom recovered from accused, not. exceeding Rs.2,500 No useful purpose, held, would be served by sending accused back to jail for serving unexpired period‑‑Sentence reduced to one already undergone in circumstances.

Ch. Nabi Ahmad Cheema for Appellant.

Mushtaq Ali Tahir Khelly for State.

Date of hearing: 13th March, 1983.

This appeal is by Boota Masih who together with two other persons was convicted by the Special Judge (Customs) of an offence under section 156(1)(8) read with section 178, of the Customs Act and was sentenced to suffer rigorous impirsonment for a period of two years and to pay a fine of Rs.2,000, in default for payment of the fine he was to suffer rigorous imprisonment for a further period for six months.

2. According to the prosecution on the evening of 6‑6‑19871 a Nakabandi was held by a party of West Pakistan Rangers near village Dhallaypur in Tehsil Narowal quite close to the Indo‑Pakistan border. The Nakabandi was being held as the Rangers had earlier received information that some persons had smuggled cardamom from India and had stored it in their village; further, a part of the cardamom had already been taken to Lahore and the rest of the cardamom was to be removed the night. As the Nakabandi party was keeping a watch on the smugglers it saw a group of five persons coming from the direction of India. The person who was leading the group had a rifle with him while the others were carrying bags on their heads. The Nakabandi party challenged the group whereupon the person who was leading them opened fire with his rifle. The Nakabandi party returned the fire. Whereupon the persons forming the group started to run away. The Nakabandi party chased them and succeded in arresting two members of the group. The appellant was one of those captured by the Nakabandi party. He had a bag with him which contained 201 Seers of cardamom. Subsequently, the appellant and his companions were challaned for an offence under section 156(1)(8) of the Customs Act.

3. The appellant pleaded not guilty to the charage against him. He denied that he was arrested at the border by the Nakabandi party while carrying a bag containing cardamom. He alleged that the entire story was a fabricated one and the rangers had taken him and his father from their thrashing floor on the ground that some goods were to be transported to another village. Subsequently, he was involved in this case. He produced two witnesses in his defence.

4. In support of its case the prosecution examined Lc. Nk. Muhammad Yousaf (P.W. 1) S.I. Muhammad Ayub (P.W. 4) and Sepoy Muhammad Anwar (RW4). They were serving in the rangers at the relevant time. They supported the prosecution story and alleged that they had seen the appellant together with some other persons coming from the direction of India while carrying a bag containing cardamom. There is no reason why the evidence of these three witnesses should be disbelieved as they had no motive to falsely implicate the appellant. No doubt Lc. Nk. Muhammad Yousaf (P.W. 1) was unable to correctly identify the appellant at the trial but then it is to be noticed that he was appearing in the witness‑box about four years after the incident.

5. The evidence of the two defence witnesses is most unconvincing. Subedar Major Qamar Khan (D.W. 2) was not present at the time when the appellant was arrested. Muhammad Sharif (D.W. 1) deposed that he) was present at the time when some persons from the rangers took away the appellant from the village. It is to be noticed that the appellant and his father were the tenants of Muhammad Sharif (D.W. 1) As already noticed Lc. Nk. Muhammad Yousaf (P.W. 1), S.I. Muhammad Ayub (P.W. 4) and Sepoy Muhammad Anwar (P.W. 5 had no previous enmity with the appellant and, therefore, there was no reason why they should have picked him of for involvement in a false case.

6. For the reasons stated above I am satisfied that the appellant was in fact found by the Nakabandi party coming from the direction of India with the bag containing cardamom.

7. The learned counsel for the appellant contended that according to the F.I.R. the cardamom had already been smuggled into Pakistan by persons other than the appellant consequently, the appellant could not be convicted of an offence under clause (8) of section 156(1) and that at worst his case fell under clause (89) of the same subsection. In support of his contention he referred to the following passage from the F. I. R.

On first impression I was inclined to agree with the learned counsel but after closer examination I am of the view that the said passage merely explained the reason why rangers had organized a Nakabandi near village Dhallaypur. The cardamom which was found in possession of the appellant was not the one which had already been smuggled into Pakistan but that the appellant was arrested while a second instalment of cardamom was being smuggled into Pakistan The site plan prepared by the Nakabandi is Ex.PB on the record. Village Dhallaypur to which the appellant belongs is shown in the site plan. Similarly, the Indo‑Pakistan border is also indicated therein. The Nakabandi had seen the appellant and his companion coming from the direction of India and not from the side of their village.

8. For the reasons stated above I am satisfied that the appellant was rightly convicted by the learned Special Judge of an offence under section 156(1) (8) of the Customs Act.

9. The challan in this case was submitted in Court by the S.H.O of Police Station Narowal. The learned counsel contented that the S. H.O was not competent to present a challan under the Customs Act in Court. I am afraid I cannot accept this contention. I have already examined this position in Criminal Appeal No. 579 of 1975 and I am of the view that S. H. O did possess the powers of a customs officer under the Customs Act at the relevant time.

10. As regards the sentence it is to be noticed that the incident took place about 12 years ago. The value of the cardamom recovered from the appellant did not exceed Rs. 2, 500. In the circumstances no useful purpose will be served by sending him back to jail to serve the unexpired portion of his sentence. Accordingly I would reduce his sentence of imprisonment to the period already undergone. However, the sentence of fine is maintained. With this modification in the sentence, the appeal is disposed of.

S.A./B‑4/L Order accordingly.

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