P L D 1965 Dacca 50 (PLP)

SIKANDAR ALI, J.‑This appeal by Muhammad Ullah is directed against the order dated 14‑11‑62, whereby Mr. M. M. Haque, Assistant Sessions Judge, Jessore, has convicted him under rule 27, C. M. L. A., and sentenced him to rigorous imprisonment for five years. The material facts leading up to the said order of the appellant's conviction are briefly as follows:‑ On 15‑7‑1961, at about 10 a.m. P. W. 1 Sepoy Abdus Salam and P. W. 2 Habildar Syed Musa of the East Pakistan Rifles while on patrol duty on the Pak.‑India border at a place near village Namajgram, Police Station Sarsa sighted the appellant and another going towards the border carrying one package each. On challenge they took to their heels but were over taken and apprehended. The package carried by the present appellant was found to contain 140 stylo pencils. The appellant was placed under arrest and the said pencils seized under a seizure list prepared by the said E. P. R. personnel. On hearing the row two members of the locality, namely P. Ws. Ansar Ali and Muhammad Duki Mondal appeared there and found the accused under arrest. They were then told by P. Ws. 1 and 2 all about the arrest of the appellant and his companion as well as the seizure of the articles in question. In due course they were produced before the thana and a case started. On completion of the investigation, police submitted charge‑sheet against the appellant as well as his companion but thereafter the latter appears to have absconded. The case was then split up at the instance of the public prosecutor and that as against the appellant proceeded with. The defence taken on behalf of the appellant at the trial appears to be that he is a shopkeeper and was carrying the style pencils found in his possession from his house to his shop in the bazaar situate within his native village, namely, Benapole when he was wrongly arrested on the way with the said articles he was thus carrying bona fide to his shop. Ultimately, however, the learned trial Judge rejected the defence‑version and accepting the prosecution case as proved, convicted and sentenced the appellant. As has already been made clear above, the appellant has been convicted under rule 27, C. M. L. A., which as amended by Martial Law Regulation No. 40 reads:‑ "Smuggling of all kinds is prohibited. Any one caught in the act of smuggling or found in possession of smuggled goods knowing them to be such or found helping a smuggler with money, goods, shelter, food, drink, transportation or with any other type of assistance or who withholds any information about the smugglers or fails to pass on such information without delay to military and civil authorities shall be punishable. Maximum punishment death." It appears that smuggling has not been defined either in the above‑mentioned rule or in any other Martial Law Regulation It must, therefore, be taken in its ordinary import. According to the dictionary, it means clandestine conveyance to, or out the country of goods without payment of the legal duty. The charge against the appellant in the present instance is not that he was in possession of contraband goods imported from abroad in evasion of the law or legal duty but that he was caught in the act of passing out across the border to India in a clandestine manner the articles found in his possession in contravention of the law and without payment of the legal duty leviable thereon. Let us, therefore, proceed to see how far the prosecution has succeeded in bringing this charge home to the appellant. Evidence as to the arrest of the appellant and the seizure of the articles, namely, stylo pencils, found in his possession has been furnished by the Sepoy and the Habildar of the East Pakistan Rifles, namely, P. W. 1 Abdus Salam and P. W. 2 Syed Musa. The gist of their evidence is that while on the date in question they were on patrol duty at a place 100 yards away from the border, they sighted the appellant with another going towards the bazaar each of them carrying a package. Proceeding they have further stated that on challenge the appellant and his companion both took to their heels but were over taken and apprehended. . The package in possession of the appellant was found to contain 140 stylo pencils. Immediately after the arrest two persons of the locality, namely, P. W. 3 Ansar Ali and P. W. 4 Muhammad Dukhi Mondal appeared there when P. Ws. 1 and 2 reported to them the facts leading to the arrest of the appellant and his companion and also showed them the articles found in their possession. P. Ws. 3 and 4, have substantially supported P. Ws. 1 and 2 in this behalf. It may be recalled that there is really no dispute regarding the occasion of the stylo pencils seized from the appellant. His case on the other hand is that he runs a shop in the bazaar situate in his native village, namely, Benapole and often stocks his merchandise in his house and takes the same from there to his shop from time to time. In the present occasion too he was thus taking the pencils to his shop when he was wrongly arrested by P. Ws. 1 and 2 on mere suspicion. It appears that both the local P. Ws., examined in the case have clearly admitted that the appellant has a shop in the Benapole Bazaar. The defence also examined two witnesses‑one of whom, namely, D. W. 1 Zaher Ali has stated that there are two paths that can be availed for coming to the Benapole Bazaar from the house of the appellant though the shorter one is towards the west through a mango grove and not through Namajgram which is towards Indo‑Pak border from the bazaar. D. W. 2 Abdul Matin has merely stated that the appellant sometimes keeps goods in his house and therefrom takes the same to his shop in the bazaar. It is true, as it appears from the evidence that the number of pencils found in possession of the appellant was fairly large, which, according to the prosecution, is an incriminating circum?stance supporting its case but that, in our opinion, is fully explained away by the admitted fact that the appellant is a businessman running a shop, wherein he deals in sundry articles. The next piece of circumstance relied upon by the prose?cution appears to be the fact that on challenge the appellant as well as his companion tried to run away. In this connection it is, however, important to point out that neither of the two local P. Ws., referred to above, has said anything supporting this part of the prosecution case. One of them (P. W. 3 Ansar Ali) of course came after the arrest but the other namely, P. W. 4 Muhammad Dukhi Mondal, has clearly stated that the Habildar and the Sepoy "went forward and arrested this accused and his companion" which‑ rather indicates that the appellant and his companion were not actually running away as deposed to by P. Ws. l and

2. In any case, the mere fact that one tried to run away and escape on being challenged by the police on others entrusted with the police duty is not necessarily incon?sistent even with the conduct of an innocent person and cannot thus be said to point conclusively to a guilty mind. The only other fact that remains is that the appellant was found in possession of the articles in question near the border. As has already been indicated above, P. Ws. 1 and 2, were on patrol duty at a place 100 yards away from the Pak. border when they sighted the appellant and his companion going towards the border carrying a package each. There is nothing in their evidence to show at what distance from the border the appellant and his companion exactly were at the time, that is, when P. Ws. 1 and 2, noticed them proceeding towards the border, as claimed by them. The appellant is a man of Benapole and has shop in the bazaar situate somewhere within that village. D. W. 1 Zaher Ali has stated that there are two routes for going to the Benapole Bazaar from the house of the appellant the shorter one running through a mango orchard somewhere in village Benapole. It is, however, not clear whether the other, though longer, lies through Namajgram. Unfortunately the tepography available from the evidence on record in relation to the different places, with which we are concerned, is not also clear or complete with the result that it is difficult to say that there is no route for going from the house of the appellant to the Benapole Bazaar through Namajgram where the arrest was made even though that may not be the short cut or the usual route. In this connection it is also important to bear in mind that possession of the pencils in question at the place, where the appellant was arrested, was not unlawful, in that it is not even the prosecution case that any permit or licence was necessary for the same. The mere fact that the said place happen to be near the border cannot make any difference nor can that by itself justify an inference that the appellant must have been bound for the border with a view to passing on the articles concerned across it to the other side. There must be something positive or circumstantial, in addition to the fact of mere proximity to the border, to lead to no conclusion other than this that he must have been so bound. That appears to be completely lacking in the instant case. In these circum?stances, the possibility of bona fide possession of the articles by the appellant as contended on his behalf cannot be definitely ruled out. In this view of the matter, therefore, the prosecution cannot be said to have made out in a convincing manner that the appellant was engaged in the act of smuggling the pencils found in his possession. That being so, his conviction as recorded .by the learned Assistant Sessions Judge cannot be supported in law and the appellant must be given the benefit of doubt. We, therefore, allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge against him. He is discharged from his bail bond. A. SUBHAN CHOWDHURY, J.‑I agree. K.B.A. ??????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.