1992 PLP 1496 (MLD)

3. Charge under section 156(1)(8), read with section 17$ of the Customs Act. 1969 was framed against the appellants and they were asked whether they plead guilty to the same or have any defence to make. The appellants pleaded not guilty and wanted to be tried.

4. At the trial the prosecution examined Muhammad Sharif, L/Naik (P.W.41), Jan Muhammad, Sub‑Inspector (P.W.2), Ali Nawaz, Inspector (P.W.3) and Dr. Fazalur Rehman Yousuf Fazli (P.W.4).

5. In their statements recorded under section 342, Cr p C. the appellants disputed the allegations of the prosecution. Appellant Shoukat Ali also filed a written statement (Exh.10/A) in support of their defence which for the sake of convenience is reproduced in extenso:‑‑ "That I have got agricultural land and residential accommodation near Sarhari canal at Pithoro, District Tharparkar. On 26‑8‑1989 due to heavy rainfall there was expected danger of flood in the canal and so as a precautionary measure, I and other agricultures of the locality came out to watch the flood situation to protect their land and family. I was on my own agricultural tractor as walking on foot was not possible due to mud resulted as an outcome of heavy rain. When I reached near canal bridge, some Rangers personnel were also watching the situation of seasons. They stopped me and inquired about my name. I informed them about my name. Meanwhile other settlers also gathered. The Rangers personnel asked me about my differences with Mr. Ali Mardan Shah, then M.PA. of Sindh Assembly of Thar area. I replied to the Rangers personnel that there is no difference of opinion except my political alliance with Muslim League. The Rangers personnel then took me in their jeep in New Chore, and left the tractor on Sarhari canal as due to heavy rainfall in Thar area the tractor could not move in speed toward New Chore due to mud and sand dunes. I reached at New Chore in Rangers Head Quarters at about 4 a.m. on 27‑8‑1989, where I saw Muhammad Haneef resident of Pithoro sitting at angers Headquarters. I know watching the situation of seasons. They stopped me and inquired about my name. I informed them about my name. Meanwhile other settlers also gathered. The Rangers personnel asked me about my differences with Mr. Ali Mardan Shah, then M.PA. of Sindh Assembly of Thar area. I replied to the Rangers personnel that there is no difference of opinion except my political alliance with Muslim League. The Rangers personnel then took me in their jeep in New Chore, and left the tractor on Sarhari canal as due to heavy rainfall in Thar area the tractor could not move in speed toward New Chore due to mud and sand 'dunes. I reached at New Chore in Rangers Head Quarters at about 4 a.m. on 27‑8‑1989, where I saw Muhammad Haneef resident of Pithoro sitting at Rangers Headquarters. I know Muhammad Haneef as he is a well‑known businessman and owner of a Cinema in, Pithoro. Muhammad Haneef inquired from me as to on what account I have come with Rangers upon which I 'replied that Rangers authorities . have brought me in their own jeep. In Rangers office one another person was sitting duly arrested to whom I do not know, but other persons said that he is involved in 100 Kgs. charas case. I and Muhammad Haneef were then locked up by Rangers without assigning any reasons. In the morning I came to know that the Thari who was found arrested in the night with charas has been let off. My tractor was brought by the Rangers on next day when I was in Rangers custody. Sir,, this case is fabricated and foisted upon me due to political differences on the instruction of Mr. Ali Mardan Shah, the M:P.A. and Rangers Seizing Ofcers that is Mr. Jan Muhammad and Mr. Ali Nawaz 1.0. in this case as both of these officers are friend of Mr. Ali Mardan Shah M.PA. because I belong to Muslim. League Party. Sir, I am a respectable agriculturist and I also remained Councillor of my area. Sir, my father Sher Muhammad filed a complaint before Deputy Commissioner, Mirpurkhas who marked the inquiry to C.I.A. authorities. Mr. Jaffar Raza S.I. C.I.A. Mirpurkhas conducted the said inquiry in the matter on 29‑9‑1989, and recorded the statements of locality from where I have been arrested. The said C.I.A. Inspector report has been submitted by my Advocate late Muhammad Ali Shaikh alongwith my bail application earlier, which is prayed to be perused. Sir, I am an innocent and victim of party politics and I pray that C.I.A. Inspector, Mirpurkhas who conducted inquiry as aforesaid be called for and examined in defence in the interest of justice. On 22‑10‑1990 your honour advised to bring witnesses on 30‑10‑1990. Two witnesses, namely, Muhammad Tufail and Punhoon both agriculturists and residents of the locality as aforesaid have come to this Honourable Court to give evidence in defence as these are the witnesses who also freely deposed the facts and figures on this case on 29‑9‑1989, before C.I.A. authorities. I further pray that C.I.A., S.I. Mr. Jafar Raza, Mirpurkhas and Mr. Rayaz Zamindar of Sattefte Town, Mirpurkhas may kindly be summoned as defence witnesses as they arc reluctant to attend without a Court summons."

6. Both the appellants examined themselves on oath under section 340(2), Cr.P.C. they also examined Muhammad Tufail (D.W.3), Punhoon (D.W.4), Haji Rehmatullah (D.W.5) and Syed Jaffar Raza, Inspector (D.W.6) in their defence.

7. On the assessment of evidence available on record the learned Special Judge found both the appellants guilty for the offence under section 156(1)(8) of the Customs Act, 1969 and convicted them accordingly. It is in these circumstances that the present appeal has been filed.

8. I have heard Mr. A.Q. Halepota, learned counsel for the appellants and Mr. Syed Ashique Ali Zaidi, learned counsel for the State. The latter while conceding to the reduction of sentence of imprisonment has not supported the case of the prosecution against appellant Shoukat Ali.

9. The case of the prosecution mainly hings upon the evidence of Jan Muhammad, Sub‑Inspector (P.W.2) and Muhammad Sharif, L/Nark (P.W.I), and I have, therefore, carefully examined their evidence to find out if they had any motive to depose falsely against the appellants. Both of them have fully implicated the appellants and there are no material contradictions in their A evidence to shake their credence. Appellant Shoukat Ali has alleged enmity with Ali Mardan Shah, the then M.P.A. of that area and it is his case that the case against him is framed at the instance of Ali Mardan Shah who has got friendship with Jan Muhammad, Sub‑Inspector. There is, however, nothing on record to substantiate it. It is not known as to how the said Ali Mardan Shah, M.P.A, is on inimical terms with the appellants and the witnesses are subservient to him so as to depose falsely against the appellants. The learned Special Judge who had the occasion to sec the demeanour of both these witnesses examined by the prosecution on the point of recovery of contraband charas near the border pillars while it was being transported to India, found them reliable and I see no reason to differ from the assessment made by him. It is contended on behalf of the appellants that the evidence of witnesses examined in defence was not given proper treatment by the learned Special Judge who rejected their testimony for reasons which were neither sound nor cogent. I have examined the testimony of all these witnesses in juxtaposition with the evidence of Jan Muhammad, Sub‑Inspector (P.W.2) and Muhammad Sharif, L/Nark (P.W.1) but failed to discover the result which on critical examination the learned counsel for the appellants tried to produce. Syed Jaffar Raza, Inspector (D.W.6) has conducted an enquiry regarding an application made by Sher Muhammad, father of appellant Shoukat Ali to S.P. Tharparkar at Mirpurkhas. His evidence, however, in no way proves that the appellants or any one of them, viz., Shoukat Ali had become target of enmity of Ali Mardan Shah, M.P.A. Muhammad Tufail (D.W.3), Punhoon (D.W.4) and Haji Rehmatullah (D.W.5) appeared to be interested witnesses. The witnesses examined by the prosecution were not confronted to the aspect of the case which the defence has tried to prove through the evidence of these witnesses. In this view of the matter, the observations made by learned Special Judge that E the evidence of these witnesses does not inspire confidence and it is not o quality and character which could outclass and disprove the prosecution version, is fully borne out from the record. Faced with this situation, Mr. A.Q. Halepota, learned counsel for appellants has made a feeble attempt to question the case of the prosecution on merits against appellant Muhammad Hanif. He has, however, laid emphasis upon the evidence adduced in defence by appellant Shoukat Ali and has contended that the case against him appears to be doubtful. Although the learned counsel appearing for State has also not supported the case of the prosecution against appellant Shoukat Ali, I am satisfied that the case against both the appellants is fully proved,

10. The question of sentence awarded to both the appellants as engaged by anxious consideration. Both of them are in custody since 27‑8‑1989 and have almost completed a period of 2‑1/2 years in prison, both as under‑trial prisoners as well as convicts. The sentence already undergone by him, will therefore, meet the ends of justice and to this extent I am in agreement with the view taken by the learned counsel for State. Accordingly I would reduce the sentence of imprisonment awarded to both the appellants to that already undergone by them as under‑trial prisoners/convicts. The sentence of fine is, however, maintained and the appellants shall suffer R.I. for one year in default thereof.

11. With this modification in sentence, the appeal is otherwise dismissed. N.H.Q./M‑1608/K Sentence reduced.