1988 P Cr (PLP)

Dates of hearing: 16th and 21st November, 1987. Ghulam Muhammad alias Gama, Muhammad Rafiq alias Phika and Muhammad Sadiq were tried by the learned Special Judge Customs, Lahore, under sections 156(1)(8), 85 and 92 read with section 178 of the Customs Act for smuggling cardamom into Pakistan, being in possession of smuggled goods and criminally intimidating the Rangers party by firing at them. The learned Special Judge, Customs, by his judgment dated 27-9-1986, convicted them under sections 156(1)8, 156(1)85 and 156(1)92 of the Customs Act. He sentenced them under section 156(1)85, read with section 178 of the Customs Act to two years rigorous imprisonment each with a fine of Rupees five thousand (Rs.5,000) each or in default thereof to undergo further simple imprisonment for six months each, under section 156(1)85 to one year's rigorous imprisonment each with a fine of Rupees One thousand (Rs.1,000) each or in default thereof to undergo further simple imprisonment for three months each and under section 156(1)92 to one year's rigorous imprisonment each; all the sentences being ordered to run concurrently. The joint appeal (Criminal ,Appeal No. 558-C of 1986) preferred by Muhammad Rafiq and Muhammad Sadiq, convicts, and the revision petition (Criminal Rev. 461-C of 1987) filed by Ghulam Muhammad convict, against their conviction and sentences, are both now before me for disposal.

2. The brief facts of the case are that on the night of 26/27-9-1982, a Nakabandi was held at a distance of 100 yards from the India-Pakistan border within the area of village Saankay. At about 4-00 a.m. on 27-9-1982, the Nakabandi party observed some persons on mares and some on foot coming from the side of India. When the party reached near, they were challenged to stop. Out of them, Ghulam Muhammad, Rafiq and Muhammad Sadiq were identified in the torch light. Instead of stopping, they opened fire at the nakabandi party, who also fired back in self-defence. The accused succeeded in slipping away under the cover of darkness. Near the place of occurrence, one person, whose name was later discovered to be Muhammad Ishaq, was found killed, who was carrying a rifle. One bag containing cardamom seeds weighing 361 Kgs. was found lying towards the right side of the dead body, which, with the rifle, was taken into possession vide memo P.B. From the search of the place of occurrence three bags containing 108-3/4 Kgs. of cardamom seeds and one bag containing 361 Kgs. of large cardamoms were recovered from the spot and taken into possession vide memos P.A. and P.B. Anees Hassan S.I. Pak Rangers P.W.1 drafted the complaint Ex. P.C. and sent the same to Police Station Barki for the registration of the case.

3. On 19-11-1982 Muhammad Sadiq and Ghulam Muhammad, accused, were arrested by Muhammad Aslam S.I. P.W. 4, who served notices Ex. P.G. and P.H. on them under section 171 of the Customs Act.

4. On 24-11-1982, Muhammad Rafiq, accused, was arrested by Muhammad Aslam S.I. P.W.4, who served notice Ex. P.J. under section 171 of the Customs Act on him.

5. At the trial, all the accused denied the accusations that were levelled against them including the service of notices on them. They submitted that they were compelled to thumb mark certain blank papers, which were subsequently converted into notices under section 171 of the Customs Act. In answer to the question why the case had been initiated against them, each of the three accused made the same statement. The statement of Ghulam Muhammad accused, may be reproduced:-- "At the instance of Rangers Officers, due to enmity with Anis Hassan, the seizing officer, who falsely involved me in this case. He is a neighbour of my father who is residing near Power House Baghbanpura. I also reside there but my agricultural land is situated in village Narvar. There was a litigation between my father Muhammad Sharif with Sarwar son of Muhammad Hussain resident of Power House, Baghbanpura, Lahore. The said Sarwar is a friend of Anees Hassan, the seizing officer. About 1? months prior to the registration of the case, the said Anees Hassan alongwith 2/3 employees of Rangers came to the shop of Ice seller at about 2/3-00 p.m. near the said Power House where I, my father, Sadiq and Rafiq my co-accused and some other persons of the locality were present. Anees Hassan asked my father to give up the litigation with the said Sarwar but my father refused. I and my co-accused also refused Anees Hassan to give up the litigation and as a result thereof the said Anees Hassan involved us in this false case as he already threatened us of dire consequences." The accused produced six witnesses in their defence.

6. The learned Special Judge, Customs, on the basis of the ocular account and the recoveries convicted and sentenced the three accused, as stated in para 2 above.

7. I have heard the arguments of the learned counsel for the appellants and the learned Standing Counsel for the Federal Government and have perused the record. The ocular account is furnished by Anees Hassan S.I. Pak Rangers P.W. 1 and Ahmad Khan Hav. Satluj Rangers P.W.2. The account of their version already stands reproduced in para. 2 above and need not be repeated. Both are independent witnesses and have no enmity with the appellants. Though it was suggested by the appellants in their statements made P under section 342, Cr.P.C. that Muhammad Sharif, father of Ghulam Muhammad, appellant, had some litigation with one Sarwar son of Muhammad Hussain and the said Sarwar had induced Anees Hassan S.I. P.W.1 to compel Muhammad Sharif father of Ghulam Muhammad, appellant, to give up litigation, which the said Muhammad Sharif had refused and the three appellants had also refused the request of the said Anees Hassan S.I. P.W.1, as a result of which the said Anees Hassan S.I. P.W.1 had involved them in the present case, but all these facts were neither put to Anees Hassan S.I. P.W.1 nor Ahmad Khan Hav. P.W.2 in their cross-examination. What was only put to Anees Hassan S.I. P.W.1 in cross-examination was that he had concocted a false case against the appellants at the instance of Sarwar son of Muhammad Hussain, which suggestion he denied, and what was only put to Ahmad Khan Hav. P.W.2 was that he had deposed against the appellants at the instance of Anees Hassan S.I. P.W.1, which suggestion was repelled. No defence witnesses were produced by the appellants to clearly support their defence version. In the absence of proper questions being put to the two eye-witnesses as regards the false implication of the appellants, I would hold that the eye-witnesses are independent. On behalf of the appellants the following submissions have been made. First that the night being dark, the appellants could not have been identified by the eye-witnesses. In this connection it is submitted that the witnesses have not given particulars as to how many persons were on foot and how many were on mares. Second, that the torch was not taken into custody by the Investigating Officer and therefore, the ocular account cannot be accepted. Third and last, that the eye-witnesses are inimical to the appellants and their story cannot be believed. Anees Hassan S.I. P.W.1 and Ahmad Khan Hav. P.W.2 are independent witnesses and their character as such remains unshaken. The only question that arises for consideration is whether they were able to identify the three appellants by the light of their torches. Anees Hassan S.I. P.W.1 stated in cross-examination that he had met the three appellants at the hotel at Jallo Morr, when he was sitting there and the appellants had come in and he had inquired about their identity from Rashid Sepoy who had given him their names. He has also mentioned that at that time they were sitting at a distance of two yards from him. Likewise, Ahmad Khan Hav. P.W.2 stated that he had seen the appellants about two/three months prior to the occurrence at a hotel at Jallo Morr, when Ghulam Haider Sepoy had disclosed to him the names of the appellants. In the statements given by the three appellants in Court under section 342, Cr.P.C. they admit the fact that Muhammad Anees S.I. P.W.1 and two/three members of the Rangers Force had come to the shop of an Ice seller near the Power House at Baghbanpura, where all the three appellants and others were present, when the said Anees Hassan S.I. P.W.1 had tried to prevail upon Muhammad Sarwar (the father of Ghulam Muhammad, appellant) and the three appellants to give up litigation against Sarwar son of Muhammad Hussain. It is, therefore, admitted by the appellants that atleast they were known to Anees Hassan S.I. P.W.1. According to the ocular testimony all the three appellants were identified by torch light at a distance of 20-25 yards at about 4-00 a.m. on 27-9-1982. The time for sunrise on that date was 5-50 a.m. The incident took place in mid season and I do not think it was completely dark at 4-00 a.m. on that date. The statement of Ahmad Khan Hav. P.W.2 that it was dawn, is not perhaps too accurate, but that twilight was breaking would be perhaps correct. In this background, if the appellants were known to the witnesses, the possibility that they were clearly identified in the torch light cannot be rejected. The torches which the Rangers carry throw a strong beam. I would, therefore, hold that the two eye-witnesses did see the occurrence and did identify the three appellants in the light of the torch flashed by them. The fact that they were not able to see such of the companions of the appellants who were on mares is understandable, as they were behind and since the appellants, who were on foot, were ahead, they were first spotted in the beam of light which gave the others a hint of the Nakabandi, who fled away. As regards the suggestion of the learned counsel for the appellants that since the torches were not taken into custody, the ocular account should be disbelieved, I am afraid I cannot accept this position. The torches which the Pakistan Rangers possess are a part of their official equipment, just like rifles or flare pistols which they carry. It is not the practice to take such articles into possession as proof that they were so used. Nothing, therefore, turns on this objection. Taking into consideration the evidence on the record and the surrounding circumstances, I have no hesitation in holding that Anees Hassan S.I. P.W.1 and Ahmad Khan Hav. P.W.2 did see and identify the three appellants, alongwith others, coming from the India side of the border and that before they could be apprehended they decamped from the scene, throwing the smuggled goods behind. The three appellants, therefore, appear to have been properly convicted.

8. On the question of sentence it is urged that nothing has 'come', on the record to show that the three appellants are smugglers in' their own right or have sufficient means to finance such operations. It is submitted that they were only petty carriers and, being poor villagers, had been employed by the real smugglers to operate their illicit trade. The submission made on behalf of the appellants is not without substance. It has not come on the record that any of the appellants claimed any part of the smuggled goods in the adjudication proceedings before the customs Authorities under section 179 of the Customs Act, 1969. At best, the position of the appellants appears to be no higher than that of carriers. Muhammad Sadiq and Ghulam Muhammad, appellants, were arrested on 19-11-1982, whereas Muhammad Rafiq, appellant, was arrested on 24-11-1982. Muhammad Sadiq and Muhammad Rafiq, appellants, were bailed out by the learned Special Judge, Customs, on 17-1-1983 and Ghulam Muhammad, appellant, was bailed out on 2-2-1983. When the three appellants were convicted by the learned Special Judge, Customs, on 27-9-1986, Muhammad Sadiq and Muhammad Rafiq were taken into custody, but Ghulam Muhammad appellant, remained absconding till January, 1987. The sentence of Muhammad Sadiq and Muhammad Rafiq, appellants, were suspended by the High Court on 26-10-1987, whereas that of Ghulam Muhammad, appellant, was suspended on 3-11-1987. It is, therefore, apparent that Muhammad Sadiq, Muhammad Rafiq and Ghulam Muhammad, appellants, have suffered detention for roughly three months, three months three weeks and twelve months and two weeks respectively, both as under trial prisoners and as convicts. I would reduce their sentences to that already undergone.

9. Whilst maintaining the conviction of the appellants under sections 156(1)8, 85 and 92 read with section 178 of the Customs Act, 1969, I would reduce their sentences to that already undergone under the three heads of charge, but would maintain the fines imposed by the learned Special Judge, Customs, Lahore, on them under the said three" heads and the sentences imposed in default of payment thereof.

10. For the foregoing reasons, this appeal and revision petition stand partly accepted, in terms of reduction in the sentences, as stated above. Subject to the fines being paid, within a reasonable time to be notified to the appellants and the petitioner, their bail bonds shall stand discharged, failing which they shall be taken into custody and sent to Jail to serve out the sentences imposed on them in lieu of non-payment of fines. M.Y.H./M-466/L???????????????????????????????????????????????????????????????????? Appeal partly allowed.