2005 PLP 2719 (YLR)

Appellant Zafar Iqbal was tried by Special Judge, Customs, Taxation and Anti-Smuggling, Lahore in case F.I.R No.43 of 1997, dated 6-4-1997 registered under sections 156(1)(8) read with section 178 of the Customs Act at Police Station, Hadyara, Lahore. The Trial Court vide judgment 18-2-2003 convicted the appellant under section 156(1)(89) of the ibid Act and sentenced him to five years' R.I. and to pay a fine of Rs.10,000 or in default whereof to further undergo two months' S.I. The appellant was also given the benefit of section 382-B, Cr.P.C.

2. Calling in question the impugned judgment the appellant filed the instant appeal.

3. Pursuant to secret information received by Lt.-Col. Muhammad Aris, Wing Commander that Indian liquor would be smuggled to Pakistan on 6-4-1997, a naka was established at a distance of 500 yards from Indo-Pak Border in the area of Border Pillars Nos.103/32 and 103/33. At 2-00 midnight two persons entered Pakistan from India carrying bundles (sic) on their head. They were challenged upon which they tried to flee away while throwing the bundles. The naka party encircled them and Zafar Iqbal was apprehended at the spot while his co-accused namely Muhammad Rashid managed to escape. Both the bundles were searched and 69 bottles of Indian liquor were recovered. The appellant was served with a notice under section 171 of the Customs Act and after complying with legal formalities challan was submitted before the trial Court.

4. During the trial prosecution produced Ghulam Fareed P.W..-1 complainant as well as Seizing Officer, Naik Muhammad Ilyas P.W.-2, member of the raiding party and marginal witness of recovery memo. Exh.P.A. Azam Razzaq P.W.-3 who formally investigated the matter. During the investigation he prepared site plan Exh.P.D as well as got report from the office of Chemical Examiner Exh. P. E and submitted challan before the Court.

5. Trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question. Why this case against you and why P.Ws. have deposed against you, the appellant replied as under:- "I had sold three buffaloes to one Muhammad Akram resident of Mauza Village Narwar for Rs.75,

000. About four and five years ago aforesaid Akram had called me to his house for payment of the price of the buffaloes. When I was coming of his house I was arrested by the Ranger Officials and falsely involved in this case. I have apprehension that the aforesaid Akram had got me arrested in this case. My amount of Rs.75,000, is still outstanding against Muhammad Akram." In his defence the appellant produced Sher Muhammad D.W-1 and Muhammad Latif D. W-2. The crux of the statement of both these witnesses is that appellant was arrested from the village by the Ranger Authorities.

6. Trial Court after appraisal of evidence available on record, vide judgment dated 18-2-2003, convicted and sentenced the appellant as narrated earlier.

7. Learned counsel at the very outset did not challenge the conviction of the appellant and had prayed for reduction in sentence. Counsel for the State vehemently opposed the appeal.

8. Heard. File perused.

9. Appellant was apprehended by the Ranger Authorities on 6-4-1997 during the night hours near the Indo-Pak Border and 69 bottles of Indian liquor were recovered from him. Both the recovery witnesses namely Ghulam Fareed P.W.-1 and Muhammad Ilyas P.W.-2 while deposing before the trial Court and supporting the prosecution case, unanimously narrated the circumstances under which the appellant was apprehended and bottles of Indian liquor were recovered from him. They were subjected to lengthy and searching cross-examination. I have observed that there is nothing in their statement to doubt their credibility or to say that these witnesses had any malice or grouse against the appellant to involve him in this case falsely. The evidence of the witnesses rings true and in the circumstances I am persuaded to rely upon the same.

10. As far quantum of sentence of the appellant is concerned, record of this case reveals that appellant has already undergone more than half of his sentence and he is facing the agony of this case for the last more than seven years. Even otherwise, the Possibility that appellant was, a carrier and not the owner of the bottles of Indian liquor (case property) also cannot be ruled out in the circumstances of this case. Similarly, during the investigation out of 69 bottles of liquor only one bottle was sent to the office of Chemical Examiner for the report.

11. In this view of the matter, I am persuaded to take a lenient view qua the quantum of sentence. Accordingly, while dismissing the appeal, sentence of the appellant is reduced to the period already undergone by him. However, the appellant shall pay the amount of fine on the same terms and conditions as fixed the trial Court. H.B.T./Z-108/L Order accordingly.