P L D 1964 (W (PLP)

Date of hearing:. 1st June 1964, Criminal Appeal No. 498/63 has been filed by Shafiq Ahmad, Muhammad Akbar and Muhammad Afzal while Criminal Appeal No. 518/63 has been filed by Ata Muhammad are against the judgment of Mr. Muhammad Ali Mola, Magistrate 1st Class with section 30.powers, Lahore, Cantonment, dated the 6th of August 1963, by which these appellants have been convicted and sentenced to five years' rigorous imprisonment and a fine of Rs. 20,000 each or in default to undergo further rigorous imprison ment for two years under sections 167 (8) (81) of the Sea Land Customs Act as amended up to 1962. The learned Magistrate has further directed the confiscation of gold Kilos Exh. P. 1/‑1‑8 and Exh. P. 2/1‑115 along with Car No. KAB‑8326 and an amount of Rs. 1,50,312 recovered from the possession of Muhammad Akbar appellant. The gold was ordered to be deposited in the Pakistan Mint. This order will decide both of these appeals as they arise out of one judgment.

2. Shortly stated the case for the prosecution was that on the 8th of August 1962, upon information being received, the Sutlej Rangers held a Nakabandi at the railway crossing near Bowli Camp, at about 10 p.m. Car No. KAB‑8326 came from the direction of Lahore and was proceeding towards Burki on the road which goes towards Indian Border. The railway crossing was closed. The driver of the Car tried to turn it back but the Nakabandi Party surrendered the Car and stopped it. Shafiq Ahmad appellant was at the stearing while Ata Muhammad appellant was sitting by the side of Shafiq Ahmad on the front seat. The car was searched and 8! big Kilos Exh. P. 1/1‑8 and 115 small Kilos Exh. P.2/1‑115 were recovered from the car. These were found lying under the feet of Ata Muhammad appellant. The occupants of the car were arrested. Jamadar Juma Khan, who was one of the Nakabandi Party, informed his wing Commander Major Qasim Ali Shah about the recovery, who along with Khar. Abdur Rahim Khan, Deputy Superintendent Rangers and Ch. Nabi Bakhsh, Sub‑Inspector, Anti‑Smuggling Staff, Waglla, reached the spot. On interrogation Shafiq appellant informed the party that he and Muhammad Akbar appellant had gone to Karachi with smuggled gold of the value of Rs. 1,50,000 and that they had delivered the gold to Muhammad Afzal appellant and that Muhammad Akbar appellant was returning to Bungalow No. 107, Mayo Road, Lahore Cantt. by the night plane the same day along with the proceeds of the aforesaid gold. Major Qasim Ali Shah, Khan Abdur Rahim Khan, and Ch. Nabi Bakhsh along with some other Rangers came to Bungalow No. 107, Mayo Road, Lahore, and waited outside for the arrival of Muhammad Akbar appellant. The gold that was recovered from the car and Ata Muhammad appellant were taker by Jamadar Juma Khan and other personnels of the Sutlej Rangers to the Head Quarters of Sutlej Rangers. At about 1‑30 a.m. Muhammad Akbar appellant reached the Bungalow. He was holding a bag in his hand. He was stopped at the gate and was searched. The bag was found to contain currency notes worth Rs. 1,50,312 and a revolver with three live cartridges. During investigation several cars belonging to Abid Hussain, absconder, were taken into possession while as regards Car No. KAB‑8326 in which the gold was recovered it was found that it belonged to Muhammad Khalil Akhtar, acquitted accused, who had mortgaged the same with Muhammad Afzal appellant through delivery letter Exh. P. C. On the basis of the above facts the appellants along with Muhammad Khalil Akhtar, acquitted accused, were challenged for offences under sections 167 (8) (81) of the Sea Customs Act.

3. Jamadar Juma Khan (P. W. 2), Havaldar Riffat Nabi (P. W. 3) and Naik Daraz Khan (P. W. 4) gave evidence as regards the arrest of Ata Muhammad and Shafiq Ahmad appellants when they were travelling from Lahore side towards the Indian Border in Car. No. KAB‑8326. Mr. A. K. Syed, Deputy Bullion Keeper, Pakistan Mint, Lahore, appeared as (P. W. 5). The gold was weigh ed under his supervision. Abu Muhammad (P. W. 6) is a broker and he stated that Muhammad Afzal appellant had taken Car No. KAB‑8326 on mortgage vide receipt Exh. P. C. from Khalil Akhtar, acquitted accused. Khawaja Muhammad Amin, is the father of Khalil Akhtar, acquitted accused and he appeared as P. W.

9. He produced the receipt Exh. P. C. Muhammad (P. W. 8) is another car broker. He also stated that the car was mortgaged with Muhammad Afzal appellant vide receipt Exh. P. C. but he admitted that Muhammad Afzal appellant had not signed the receipt in his presence. Abu Muhammad (P. W. 6) stated about this very car that it had initially been mortgaged with Muhammad Badshah (P. W. 7). The evidence of (P. Ws. 6 and 7) is not relevant in this case. Ch. Nabi Bakhsh, Sub‑Inspector is attached with the Sutlej Rangers, he has investigated the case and appeared as (P. W. 10). Mr. S. A. Mahdi, Officer‑in- Charge, Reservation, P. I. A. appeared as P. W.

11. He stated that one Muhammad Akbar and Shafiq Ahmad went to Karachi together on the 3rd of August 1962. He further stated that Muhammad Akbar came back from Karachi on the 8th of August 1962, by the night coach. Khan Abdur Rahim Khan (P. W. 12) gave evidence about the arrest of Muhammad Akbar and the recovery of Rs. 1,50,312 from the bag he was carrying with him. His evidence on this point has been supported by Ch. Nabi Bakhsh as well. The last prosecution witness is the Magistrate 1st Class, Miss Suriya Azim (P. W. 13), who had recorded the statements of some of the witnesses under section 164, Cr. P. C. Ihsan Beg, Foot Constable (P. W. 1) stated as regards the absconding of Abid Hussain one of the co‑accused.

4. The appellants, when examined, denied the allegations of the prosecution. Ata Muhammad appellant stated that the Sutlej Ranger Officers were against him. That on their move he was externed from Lahore and he was ordered to take residence in the jurisdiction of Police Station Sarai Mughal. That the Government upon his representations removed these restrictions and he came back to Lahore on the 8th of August 1962. That the same day he was arrested by the Sutlej Rangers on the plea that he had absented from Sarat Mughal in contravention of the order of his externment. That later on they falsely involved him as an accused in this cage. Shafiq Ahmad appellant stated that on the night between Stn and 9th of August 1962, he was arrested from the house of his brother‑in‑law Abid Hussain and falsely implicated in this cage. He stated that Muhammad Akbar appellant was also living in the same house at Bungalow No. 107, Mayo Road. Lahore and that when the Rangers searched that house they recovered the amount of Rs. 1,50,000 which in fact belonged to Muhammad Akbar appellant and was kept by him in the house. That Muhammad Akbar appellant dealt in transport business and had gone to Karachi to buy some trucks. He could not strike a bargain. He came back with the money and was staying at Bungalow No. 107, Mayo Road, Lahore, from where both of them were arrested. Muhammad Akbar appellant gave a similar statement as that of Shafiq Ahmad appellant. Muhammad Afzal appellant did not claim the car. He also denied that, he had signed Exh. P. C., the delivery letter or that he had helped Muhammad Akbar appellant in that disposal of smuggled gold and paying him an amount of Rs. 1,50,

000. That he had been implicated on mere suspicion. Ata Muhammad appellant examined 8 defence witnesses, namely, Siraj Din, Jamal Din, Faqir Muhammad, Allah Bakhsh, Muhammad Hussain, Sher Muhammad. Fazal Elahi and Maalam Din, while Dr. Shahabud din and Muhammad Sarwar are the two defence witnesses of Muhammad Afzal appellant. Haroon and Sattar appeared as defence witnesses for Muhammad Akbar appellant. Siraj Din D. W.'s evidence was that Ata Muhammad appellant was taken away in a Jeep by the Sutlej Rangers from his shop in Bhadon last on the ground that he had come back to Jallo Moar in contraven tion of the orders of his externment. Siraj Din D. W. admitted that he was a partner in business of Ata Muhammad appellant. He has been supported by Jamal Din, Faqir Muhammad, Allah Bakhsh and Muhammad Hussain D. Ws. All of them stated, that they never appeared before the police in the investigation of this case it is quite easy to imagine that it is not difficult for the appellants to get hold of such persons as their defence witnesses. Sher Muhammad D. W. stated that the Rangers were searching the cars and other vehicles at the railway crossing and in the meantime the car like the one present in the Court reached there which was stopped. That about four or five persons got down from the car and ran away and the Rangers took the car with its contents in possession. Upon seeing the contents of the car the Rangers said that they had found what they had been looking for. Fazal Elahi, Naib Moharrir, Sarai Mughal, stated that Ata Muhammad was present in Sarai Mughal till 6‑5 p.m., on the 7th of August 1962. That there was an entry on the 8th of August 1962, that his externment order had been cancelled. He was not present in the area of the police station on the 8th of August 1962. The evidence of Fazal Elahi D. W. is not helpful to Ata Muhammad appellant because he was arrested on the 8th of August 1962. Maalam Din D. W. also gave evidence that the car was stopped at crossing by the Rangers and that some gold was recovered from the Diggi of the Opel Car. That Ata Muhammad and Shafiq Ahmad appellants were not the occupants of that car. The evidence of these witnesses cannot be accepted as against the evidence of independent witnesses who arrested Shafiq Ahmad and Ata Muhammad appellants from the Car, No. KAB‑8326. So far as the defence evidence of Muhammad Afzal appellant is concerned, his witnesses stated that Muhammad Afzal appellant was lying ill in Kotri on the 7th of July 1962. It is not necessary to discuss this defence evidence because so far as Muhammad Afzal appellant is concerned, I do not find enough evidence to connect him with the commission of this offence. Haroon D. W. stated that Muhammad Akbar appellant had met him for the first time in the month of August 1962, when he enquired from him about Shafiq Ahmad and he also asked him if he could arrange for the purchase of bonus vouchers as he intended to import some trucks. That he told him that he dealt in forward delivery transaction and could not procure ready vouchers for him. That he sent him to Sattar D. W. who dealt in ready market of bonus vouchers in the Stock Exchange. On the face of it this evidence is absurd. It is proved from the evidence of Mr. S. A. Mehdi (P. W. 11) that Muhammad Akbar and Shafiq Ahmad appellants travelled together to Karachi on the 3rd of August 1962, why should Muhammad Akbar appellant be then going about inquiring about Shafiq Ahmad appellant. Similarly the evidence of Sattar (D. W. 12) that Muhammad Akbar appellant had contacted him for ready bonus vouchers for the import of trucks but that ultimately he did not purchase any bonus vouchers is not believable. No transaction took place between them and it is impossible to accept that Sattar (D. W. 12) could remember these details after such a long time when there has been actually no dealings between them. Thus the defence evidence of all the appellants has been rightly rejected by the learned trial Magistrate.

5. Mr. M. Salim, who argued the case of Ata Muhammad appellant, raised the following legal contentions: That the wording of the charge indicated that the appellant was being tried for an offence under section 167 (8) only so his conviction under section 167 (81) was unwarranted. The wording of the charge is as follows:‑ "That on the 8th day of August 1962, at about 10 p.m., 8 Kilos smuggled Exh. P. 1/1‑8, 115 Kilos Khurd smuggled Exh. P. 2/1‑115 recovered from your possession near the railway crossing Harike Road, Lahore, which you were taking towards Indian Border in a Car, No. KAB 8326 with a view to smuggl ing and thereby committed an offence punishable under section 167 (8) (9) (81) of the Sea and Land Customs Act as amended in 1962." It is clear from its wording that the charge against the appellant was that he was in possession of smuggled gold which he was taking towards the Indian Border with a view to smuggling. The word "smuggling" has not been defined in the Sea Customs Act but it has been defined in Wharton's Law Lexicon, as follows:‑ "The offence of importing prohibited articles, or of defraud ing the revenue by the introduction of articles into consumption without paying the duty chargeable upon them." The action of the appellant in being in possession of smuggled gold and further his attempt to take it towards India for further smuggling would amount to offences under sections 167 (8), (81 of the Sea Customs Act. Section 167 (81) defines the offence as follows:‑ "If a person without lawful excuse, the proof of which shall be on such person acquires possession of goods which are chargeable with a duty which has not been paid, or with respect to the importation and exportation of which there is a reason able suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been con travened or if any person is in relation to, any such goods in any way, without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibi tion or restriction as aforesaid or of any provision of this Act applicable to those goods." In the present case if it is held that Ata Muhammad appellant was in possession of gold it was his duty to prove that he had hot smuggled it into Pakistan which would mean that he had brought into Pakistan on a regular permit after payment of the duty otherwise he will be deemed to have committed an offence under section 167 (81) of the Sea Customs Act. Secondly if it is proved against him that with intent to smuggle this gold he was taking it towards the Indian Border, he would be liable for an offence under section 167 (8) of the Sea Customs Act. The learned counsel further contended that even if the charge included both the offences the appellant was not asked to meet those charges. This contention of the learned counsel has also no force because the question asked from him was that he was taking smuggled gold worth Rs. 14,50,000 towards the Indian Border with a view to smuggling the same. Thus the case against him was that he was in possession of the smuggled gold which he was further smuggling to India. However, this contention of the learned counsel looses all significance because I find that the appellant has not been given separate sentence for these two offences. The learned Magis trate has awarded one sentence under sections 167 (8), (81). The learned counsel further contended that the provision of law under section 167 (8) was void because the persons convicted under section 167 (8) (a) were liable to imprisonment for a term not exceeding 10 years and not less than three months in addition to the confiscation of the goods and fine not exceeding five times the value of the goods, while the persons found committing offence under section 167 (8) (b) were only liable to the confiscation of the goods and to pay the penalty not exceed ing five times the value of the goods. That this discrimination under the Sea Customs Act was hit by para. 15 of the Funda mental Rights which lays down that all citizens are equal before law and are entitled to equal protection of. law. 'This conten tion of the learned counsel has also no force because the offence described in section 8(a) is qualified by the following words "and if the goods are such and in such quantity as would normal not be imported or exported for bona fide personal use, unless the contravention is due to bona fide doubt or difference of opinion about the classification of the goods under the Customs Tariff or under any law for the time being in force the onus of proving the existence of such doubt or difference of opinion being on the person concerned in the offence." Para. (b) of section 167 (8) deals with such goods which are in such quantity as could be normally imported or exported. Thus so far a the persons committing an offence under para. 8 (a) are con cerned, there is no discrimination between the persons commit ting that offence. Paras. 8 (a) (b) can at most be said to be two classifications of the accused persons and such a classifica tion is not hit by Article 15 of the Fundamental Rights. The learned counsel contended that the last wording in para. 8(a) beginning from "and if the goods are such" and ending on "the person concerned in the offence" were used in relation to the goods which were brought to any wharf but I do not agree with this contention of the learned counsel because these last words cover the whole of the section 167 (a) preceding these words. In this view of the matter it is unnecessary to consider the contention of the learned counsel that this plea would be avail able to an accused even at the appellate stage. This has been urged because at the time of the conviction of the appellant the Chapter on Fundamental Rights was not there in the Constitution.

6. On merits, the learned counsel for Ata Muhammad appellant, argued that the exact place from where the gold was recovered from the car, was not mentioned in the first information report. That at the trial the witnesses Jamadar Juma Khan and Havaldar Rifaat Nabi, stated that it was found at the feet of Ata Muhammad appellant who was sitting on the front seat while Daraz Khan, even in his statement in Court, stated that the gold was recovered from the car. It is contended that this was an improvement in the statement of the prosecution witnesses. I do not consider this to be any improvement. In the first information report it was only stated that the gold was recovered from the car and the fact that at the trial two of the witnesses stated that it was recovered from underneath the feet of Ata Muhammad who was sitting in front seat is not in any way a contradiction of what was stated in the first information report. The learned counsel further contended that the evidence as regards the arrest of Ata Muhammad appellant from the car should not be accepted and that the evidence of the defence witnesses to the effect that Ata Muhammad appellant was in fact taken away by the Rangers from the shop of Siraj Din P. W. and also the evidence of other defence witnesses that when the car was hauld up by the Rangers the occupants had run away and nobody was arrested on the spot should be accepted. I am unable to agree to this contention of the learned counsel. The three witnesses who are the employees of the Desert Rangers Force stated that they had arrested Ata Muhammad and Shafiq appellants from the car from which the smuggled gold was recovered. None of the defence witnesses appeared before the police during investigation. It was a case involving property worth lacs of rupees. Siraj Din D. W. 6 claims to be a partner of Ata Muhammad appellant but he made no complaint to any of the senior police officers that Ata Muhammad appellant was being falsely implicated. On going through the evidence for the prosecution as well as the defence, I consider that the learned Magistrate was quite justified in rejecting the defence evidence and accepting the prosecution evidence so far as the arrest of Muhammad Akbar and Shafiq Ahmad appellants from Car No. KAB‑8326 is concerned, while they were going from Lahore side towards Burki on the road which ultimately leads to Indian Border. It has been further pointed out by the learned counsel that the Deputy Superintendent Rangers and the Sub‑Inspector Police, stated that they interrogated Shafiq Ahmad Appellant and that they nowhere stated that they had interrogated Ata Muhammad appellant as well. That this would show that Ata Muhammad appellant was very likely an innocent traveller in the car even if it be accepted that he was there. No question in cross‑examination was put to these witnesses as to whether they had interrogated Ata Muhammad as well or not. May be that Ata Muhammad appellant, on interrogation did not give any further useful information that is why he was taken to the Sutlej Rangers Headquarters while Shafiq Ahmad appellant informed them that Muhammad Akbar appellant would be arriving at 107, Mayo Road, Lahore, by the night coach from Karachi, the party, therefore, took Shafiq Ahmad appellant only when they guarded 107, Mayo Road, Lahore waiting for the arrival of Muhammad Akbar appellant. In any case, this fact also will not help Ata Muhammad appellant. The allegation that Ata Muhammad appellant had been implicated because the Rangers Force was inimical towards him as they had raided his Mill and were unable to recover any smuggled goods, is just a wild allegation, and I cannot accept that the Rangers Force hauled up Ata Muhammad appellant in the hope that the same night they were going to haul up a car containing huge quantity of smuggled gold and thus they would involve him in that case. He reported at the Police Station Sarai Mughal on the 7th of August 1962 at about 6‑5 p.m. He was not present there on the 8th and was arrested on the 8th while he was travelling in Car No. KAB‑8326. The learned counsel further argued that assuming that Ata Muhammad appellant was in the car there was no other evidence to connect him with the gold which was recovered from the car and further that there was no evidence that the gold was being taken out of the country. The learned counsel relied on Attygalle and another v. The King (AIR 1936 P C 169) and Stephen Seneviratne v. The King (AIR 1936 P C 289) in support of his contention. In the first case the learned Judge directed the jury that the burden of proving certain facts was on the accused so as to establish his innocence. The learned Judges of the Privy Council in spite of that found that there were circumstances pointing irressistibly to the guilt of the accused quite independently of this misdirection consequently the leave to appeal was refused. In the second case the conviction of the accused was set aside because the learned Judge conducted himself in an irregular manner which was unnecessary for the administration of justice and tended to direct the due and orderly administration of law into a new course which may be drawn into an evil precedent in future. In this case the learned Judge went to the scene of occurrence for inspection. Some of the witnesses were questioned further and at length by the Judge and none else. A certain doctor who had not appeared as a witness and who was not sworn performed certain experiments by pouring chloroform on a hand kerchief to see how long the smell would remain and by making noises at one place to discover how loud they would sound at another place. The jury did not sit together but were divided at the time of these experiments and were asked questions as to the impressions produced on their senses. These two authorities do not in any way help the appellant. Here on the face of the proved facts the ingredients of the offences under sections 167(8) and 167 (81) stand clearly established. Ata Muhammad appel lant along with Shafiq Ahmad appellant was arrested when they were travelling in a car, the ownership of which is not fully established. Shafiq Ahmad appellant was driving the car and Ata Muhammad appellant was sitting on the front seat from under neath his feet gold worth more than Rs. 14 lacs was recovered. The two appellants did not offer any explanation about the gold but they denied their arrest from the car. The car was proceeding towards Burki which is on the Indian Border side. Since the railway crossing was closed the driver tried to turn the car back Section 8(a) makes punishable even an attempt to import or export any such articles as are mentioned in the opening pare There being no explanation on behalf of the appellants as regards; their movements and the presence of the gold of such a huge amount it is an irresistible conclusion that the two appellants were concerned in taking smuggled gold towards India for further smuggling. The gold bars that were recovered had foreign marks on them which would further indicate that they were smuggled into Pakistan from outside.

7. The learned counsel for Shafiq Ahmad appellant urged that the trial was without jurisdiction in so far that the com plaint had not been made by the Customs Collector or by an officer of the Customs Department authorised in writing in this behalf by the Collector, under section 6 of the Import and Export Act. This contention of the learned counsel merits no serious consideration because section 6 deals with offences punishable under section 5 of the Import and Export Act. The appellants in this case were not tried or punished under any section of the Import and Export Act. The mere fact that some of the provi sions of the Sea Customs Act have been made applicable to the proceedings under the Imports and Exports Act would not mean that the complaint for offences under the Sea Customs Act have to be filed by the Customs Collector. Section 187(a) of the Sea Customs Act which provided for a complaint being made by the Customs Officer was deleted by Act XXXIV of 1957. Thus no complaint is required to be filed by the Customs Collector or any other officer for prosecution under the Sea Customs Act. It has been further urged by the learned counsel that there was no evidence that it was prohibited to export gold. This does not require any evidence because by means of Notification No. 1(2)- ECS 48, the Central Government in exercise of the powers conferred by subsection (1) of section 8 of the Foreign Exchange Regulation Act (VII of 1947) directed that except with the general or special permission of the State Bank of Pakistan, no person shall bring or send into the Provinces of Pakistan from any place outside Pakistan any gold coin, gold bullion, gold sheets or gold ingot whether refined or not. Thus the appellants who were found in possession of gold were required to produce the permis sion of the State Bank of Pakistan to justify their possession of gold which had foreign marks. It is reasonable to presume that the gold was brought into Pakistan in contravention of this Notification. Subsection (2) of section 8 of the Foreign Exchange regulation Act, 1947 prohibits the taking or sending out of Pakistan any gold, bullion, or precious stones, or jewellery, Pakistan currency or coin or foreign exchange except with, the general or special permission of the State Bank of Pakistan or the written permission of a person authorised in this behalf by the State Bank. The appellants who were hauled up while they were attempt ing to take out gold from Pakistan to India have failed to produce any such permission. It was also urged by the learned counsel that there was no evidence that the commodities found in the car were gold. This point was never contested by the appellants. Moreover, there is abundant evidence of the prosecu tion witnesses who deposed that the articles recovered from the car were gold. It was also urged that there was no evidence that the gold recovered was chargeable to duty. As already discussed, there was no question of the gold being chargeable with duty because its import as well as export is prohibited under law. It was further argued by the learned counsel that the action of Ata Muhammad and Shafiq Ahmad appellants did not amount to an attempt. The learned counsel relied on Ashiq Hussain v. The Crown (P L D 1950 Lah. 147) and Inayat Ullah v. The Crown (P L D 1957 Dacca 279). In these two authorities preparation has been differentiated from attempt and that the acts remotely leading towards the commission of the offence were not to be considered as attempt to commit an offence. On the facts of those cases there is no doubt that what has been laid down in those authorities is the correct law. In the present case, however, the action of the appellants putting gold worth Rs. 14 lacs in a car of doubtful ownership and taking it on the road which leads to the Indian Border at 10 p.m. and the further fact that they failed to offer any explanation either of their movement or that of the gold that was found in their possession constitute an attempt to take out the gold from Pakistan. The fact that it was smuggled gold found in them possession in itself amounts to an offence and the further facts that they were proceeding towards the Indian Border by means of a car and they had only to cover a distance of about 15 miles to enter the Indian territory evidently constitutes an attempt to take out gold from Pakistan to India. It was also urged by the learned counsel that there was no evidence to show that Ata Muhammad and Shafiq Ahmad appellants were in any way connected with each other. However, the absence of such evidence does not affect the merits of this case. Shafiq Ahmad appellant was driving the car and on seeing the railway crossing being closed he tried to turn back and escape but the car was surrounded by the personnels of the Sutlej Rangers and they were arrested. Thus I do not find any flaw in the conviction of Ata Muhammad and Shafiq Ahmad appellants. It was further urged on behalf of both the appellants that the sentence awarded was excessive. The offences for which the appellants have been convicted are of a very grave character and they are offences against national interest. I, therefore, see no justification in reducing their sentence. Their appeal is, therefore, dismissed.

8. The case against Muhammad Akbar appellant is that upon information given by Shafiq Ahmad appellant that he had gone to Karachi to sell a part of the smuggled gold and would be coming back the same night by the night plane the Rangers and the Police Officers held a Nakabandi at 107, Mayo Road, Lahore, where, according to Shafiq Ahmad appellant, Muhammad Akbar appellant had to come and stay there during the night. After 1 a.m. he arrived with a bag in his hand and when he was stopped upon search of the bag currency notes worth Rs. 1,50,312 were recovered from the bag. Shafiq Ahmad appellant had also informed the police that he along with Muhammad Akbar had gone to Karachi for the disposal of the smuggled gold on the 3rd of August 1962. This fact was found to be correct because Mr. S. A. Mahdi (P. W. 11) Incharge Reservation P. I. A. stated that Muhammad Akbar and Shafiq Ahmad had travelled together on the 3rd of August 1962 from Lahore to Karachi and further that Muhammad Akbar came back to Lahore on the 8th of August by the night coach. The learned trial Magistrate convicted Muhammad Akbar appellant relying on the statement made by Shafiq Ahmad appellant as admissible against Muhammad Akbar appellant under section 27 of the Evidence Act. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved, under section 27 of the Evidence Act. This section clearly deals with the admitt ing of so much of such part of the statement of an accused person against him but this would not mean that the statement made by the accused person would be received in proof of the alleged criminality of the person from whom any fact is discovered. The learned Additional Advocate‑General relied on Walizar and another v. The State (P L D 1960 Kar. 204) and The Crown v. Saadullah Khan (P L D 1953 Lah. 451) and contended that the statement of Shafiq Ahmad appellant was admissible to prove that Muhammad Akbar appellant was in possession of the money which he had received by sale of smuggled gold. These authorities do not help the prosecution.' In these authorities the information given by the accused was used against him on the ground that some facts were discovered upon the information given by him. It is very likely that the statement given by Shafiq Ahmad appellant was correct and Muhammad Akbar appellant in fact was bringing the amount of Rs. 1,50,00 as sale proceeds of the smuggled gold, but there is no evidence on record to substantiate this fact. The mere fact that Muhammad Akbar and Shafiq Ahmad appellant had travelled together from Lahore to Karachi on the 3rd of August would not prove that Muhammad Akbar appellant had taken the smuggled gold to Karachi for sale. I am, therefore, of the view that no case is made out against Muhammad Akbar appellant. He is, therefore, acquitted. The fine, if paid, shall be refunded. He is on bail. His bail bond is discharged. The money which was recovered from the bag which he was carrying will be delivered back to him after the expiry of the period of appeal, if any, filed by the State against this order.

8. There is no case against Muhammad Afzal appellant. The only allegation against him was that the Car No. KAB‑8326 was mortgaged with him. In support of this the transfer deed Exh. P. C. has been filed which does not bear his signatures. Underneath the typed writing it is written in Urdu (barai Nazar Muhammad). The allegation of the prosecution is that Muhammad Afzal appellant signed these words in order to hide his identity but there is no evidence either direct or indirect to prove that Muhammad Afzal appellant had written these words. The car was in fact registered in the name of Khalil Akhtar who has been acquitted. Thus there is no case made out against Muhammad Afzal appellant. He is also acquitted. He is on bail. His bail bond is discharged. The fine, if paid, shall be refunded. S. Q. Appeal accepted.