1988 P Cr (PLP)

Ss. 156(1)(8)(92) & 178--Evidence, appreciation of--Neither evidence nor issues raised by accused discussed in Trial Court's judgment--Eye-witnesses independent--No enmity existing or ever; suggested--Witnesses apprehending accused near Indo-Pakistan border-Bags of cardamom and two plastic kits recovered--Evidence read and contentions of accused considered in appeal--Contentions of accused found, having no merit--Accused, held, were properly convicted in circumstances. (d) Customs Act (IV of 1969)

Ss. 156(1)(8)(92) & 178--Sentence, quantum of--Accused suffering agony of protracted trial for a year--Disposal of appeal after about seven years--Accused suffering detention in jail during trial and also for nineteen days after conviction--Sentences reduced to imprisonment already undergone by accused while sentence of fine was maintained. Ch. NI.A. Majid Bajwa for Appellants. Sh. Maqbool Ahmad and Mian Qamar-uz-Zaman for the State. Date of hearing: 6th December, 1987. Jamshed Ali, Jan Masih, Abid Ali and Muhammad Ashraf were tried by the learned Special Judge, Customs, Lahore, under sections 156(1)(8) and (92) read with section 178 of the Customs Act for smuggling cardamom and plastic kits into Pakistan and for intimidating the Rangers party by firing at them. The learned trial Judge, by his judgment, dated 2-12-1980, acquitted Abid Ali and Muhammad Ashraf, but convicted Jamshed Ali and Jan Masih under section 156(1)(8) read with section 178 of the Customs Act. He sentenced Jan Masih to three years' rigorous imprisonment with a fine of Rs.2,000 or in default thereof to undergo further simple imprisonment for two months and Jamshed Ali to one and a half years' rigorous imprisonment with a fine of Rs.500 or in default thereof to undergo further simple imprisonment for fifteen days. Their appeal (Criminal Appeal 1317/C of 1980) is now before me for disposal.

2. The prosecution case in brief is that on the night between 4/5-10-1979 Ashraf Hussain Naik P.W.3, Taj Muhammad L.Nk P.W.4 and Khasta Mir P.W.7 held a picket near the river bank near village Fatehpur at about 5-00 a.m. They observed five persons coming from the side of India. When they were at a distance of about sixty yards, Taj Muhammad L.Nk. P.W.4 challenged them, on which those persons fired two three rounds at the dangers party. Taj Muhammad L. Nk. P.W.4 fired two rounds with his rifle in defence. One of the persons fell down. The Rangers party then surrounded them and apprehended Jan Masih and Jamshed Ali, accused, Jan Masih, accused, was found to be injured. On interrogation, the accused disclosed that Abid Ali, Muhammad Ashraf and Amli Singh were their companions, who had fled. Jamshed Ali, accused, had two plastic kits with him and Jan Masih, accused, had a bag of cardamom, which both had thrown at the spot before they were captured. Khasta Mir L.Nk. P.W.7 and Muhammad Ashraf Sepoy were sent to the Rangers Check Post, Jandiala, to inform them about the incident. Fida Hussain, Nursing Haveldar P.W.6, reached the spot at about 7-30 a.m. and rendered first aid to Jan Masih, accused. Bashir Haveldar reached the spot a little later from Check Post, Jandiala, with a scale and weights and weighed the smuggled cardamoms and found them to be thirty-four kilograms in weight. Towards afternoon, Captain Manzoor tlussain and Muhammad Ilyas S.I. Rangers P.W.5 came to the spot. The latter arrested the two accused and took into custody the two plastic kits vide memo. Exh.P. D. and the seven bags of smuggled cardamoms weighing thirty-four kilograms vide memo. Exh.P.C., which recovery memos were witnessed by Ashraf Hussain Naik P.W.3. Taj Muhammad L.Nk. P.W.4, Khasta Whir L.Nk. P.W.7 and Muhammad Ashraf Sepoy, apart from the Investigating officer. Ashraf Hussain L.Nk. P.W.3 then prepared the investigation report Exh.P.B. and handed over the papers and the two accused to Niuhammad Ilyas S.I. Rangers P.W.5. On the basis of the said report, formal F.I.R. Exh.P.B./1 was recorded at Police Station Narang by Imran Hussain M.H.C. P.W.2.

3. All the accused denied the accusations that were levelled against them. Jamshed Ali and Jan Masih, accused, also denied the recoveries alleged to have been made at their instance. They did not claim the recovered property to be theirs. All the accused imputed their involvement to the false statements made by the witnesses against teem. None of the accused produced any defence.

4. I have heard the arguments of the learned counsel for the appellants and the-learned counsel for the Customs Department and have perused the record. The evidence as regards the arrest of the two appellants and the recovery of the smuggled goods from them is furnished by Ashraf Hussain L.Nk. P.W.3. Taj Muhammad L.Nk. P.W:4 and Khasta Mir L.Nk. P.W.7. Their evidence as regards what transpired also stands reproduced in para.2 above and need not be repeated. On behalf of the appellants the following submissions have been made with regard to their evidence: First, that all the witnesses differ on crucial points. Second, that no notice under section 171 of the Customs Act, 1969, was given to the appellants to explain the grounds for their arrest and the seizure of the smuggled goods from them. Third, that the case property was not produced during the trial, nor any witness appeared to explain its absence. Fourth and last, that the judgment has not been written according to the requirements of law, as neither the evidence has been discussed nor the issues raised by the appellants in their defence. With regard to the first submission, the learned counsel for the appellants has not pointed out the crucial contradictions made by the witnesses. In these circumstances, the mere bald assertion made by the learned counsel carries no weight. This submission is, therefore, rejected. With regard to the second submission, the absence of service oil notice under section 171 of the Customs Act, 1969 does not defeat the trial, as no prejudice has been pointed out. In this connection Hisbullah v. The State PLD 1984 Quetta I may be referred. With regard to the third submission, no objection was raised by the learned counsel for the appellants, when the recovery memos. Exhs.P.C. and P.D. were being tendered and. admitted in evidence, that they should not be so exhibited, till the smuggled goods were produced in Court. Objection as to the mode of proof, as distinguished from the relevancy, and admissibility of evidence, cannot be permitted to be raised, where a party has not taken the objection at the time the document was tendered in evidence and placed on the record as proved. The recoverv memos. Exh5.P.C. and P.D. were tendered in evidence and exhibited as proof of the recovery of the smuggled goods. Objection as to the mode of proof regarding the recovery of the smuggled goods cannot now be permitted to be raised, where the appellants did not take the objection at the time the recovery memos were tendered in evidence and exhibited. If any authority is required for this view, Z.A. Bhutto's case P L D 1979 SC 53 at p. 246 may be referred. With regard to the fourth and last submission, the same is not relevant now as all of the evidence has been read and whatever submissions the learned counsel has made in that respect, as stated above, have been considered. All the submissions made by the learned counsel for the appellants have no merit. All the eye-witnesses are independent witnesses. No enmity exists or has even been suggested. It is, therefore, apparent that the three witnesses did apprehend the two appellants at the spot, near the Indo-Pakistan Border, at about 5-00 a.m. on 5-10-1979 and recovered the bags of cardamom and two plastic kits which the two appellants were carrying and had thrown on the spot, just before they were apprehended. In these circumstances, the appellants appear to have been properly convicted under section 156(1)(8) read with section 178 of the Customs Act, 1979.

5. In respect of the sentences awarded to the two appellants; the learned counsel for the appellants submits that the appellants having undergone the agony of a protracted trial for almost a year and the agony arising out of the apprehended dismissal of this appeal which kept dangling over their heads for almost seven years, which itself is a sufficient punishment, all constitute sufficient grounds fort the remission of their balance sentences. In this connection it is also, submitted that Jamshed Ali, appellant, suffered detention as an under' trial prisoner from 5-10-1979 uptil 5-11-1979 and Jan 'Masih, appellant, suffered detention in the same connection from 5-10-1979 to 2-12-1980 and that after the appellants were convicted they also remained in, detention as convicts for nineteen days. In view of the great delay arising in the disposal of this appeal, the learned counsel for the', State does not oppose the request of the learned counsel for the appellants with regard to the remission of the balance terms of their sentences. Taking into consideration the fact that the appellants underwent the agony of a protracted trial for a year and the fact that the present appeal, which was admitted in 1980, has now come up for hearing after almost seven years, I would reduce the sentences of imprisonment of the appellants to that already undergone, but would maintain the fines imposed on them by the trial Court and the sentences ordered in lieu of non-payment thereof.

6. The upshot of the above discussion is that whilst the conviction of Jamshed Ali and Jan Masih, appellants, is maintained under section 156(1)(8) read with section 178 of the Customs Act; their sentences of imprisonment are reduced to that already undergone. The fines awarded to the two appellants by the learned trial Judge shall, however, stand. The appellants are on bail. Subject to the fines being paid by the appellants within a reasonable time to be notified to them in this respect, their bail bonds shall stand discharged, failing which they shall be taken into custody and sent to prison to serve the sentences imposed on -them in lieu of non-payment of fines. S. A. /J-25/L Sentence reduced.