1988 P Cr (PLP)

Sh. Maqbool Ahmad for the State. Date of hearing; 7th December, 1987. Muhammad Rafiq alias Feeqa was tried by the learned Special Judge, Customs, under section 156(1)(8) of the Customs Act for attempting to smuggle thirteen bags containing 7022.25 meters of Pakistani cloth valuing Rs.1,26,396 across the Pakistan Border. The learned trial Judge convicted Muhammad Rafiq alias Feeqa under the above section on 18‑6‑1984 and sentenced him to two years' rigorous imprisonment with a fine of Rs.5,000 or in default thereof to undergo further simple imprisonment for a period of three months. The appeal (Criminal Appeal 298/C of 1984) preferred by Muhammad Rafiq, convict, against his conviction and sentence is now before me for disposal.

2. The prosecution case in brief is that on 21‑4‑1983 Zarar Ahmad, Inspector, Ranger P.W.1 received a secret information that Muhammad Rafiq, accused had concealed Pakistani cloth in a huge quantity in the fields of Haji Ata Muhammad within the area of village Bhaini Jattan at a distance of about 500 yards from the Indo‑Pakistan Border. In pursuance of the said information, he arranged a raiding party comprising himself and Ghulam Haider Sepoy P.W.2, Muhammad Iqbal Naik and Muhammad Bashir Sepoy. The raiding party went to the place which was pointed out by the informant. At about 2‑00 p.m. when they reached the fields of Haji Ata Muhammad, they saw Muhammad Rafiq, accused present in the said field who, on seeing them, started running away. The raiding party apprehended him: Whereafter Muhammad Rafiq, accused led the raiding party to a place in the wheat field of Haji Ata Muhammad from where cloth secreted by him was recovered. Thirteen bags Exhs. P.1/1‑13 containing 341 Thans all measuring 7022.25 meters of cloth worth Rs.1, 26, 396 were recovered from the field and taken into possession vide recovery memo. Exh.P.A. which was signed by Zarar Ahmad, Inspector P.W.1, Ghulam Haider Sepoy P.W.2, and Muhammad Iqbal Naik. The thumb‑impression of Muhammad Rafiq alias Feeqa, accused, was also secured on the said memo. Zarar Ahmad P.W.1 served notice Exh.P.B. under section 171 of the Customs Act on Muhammad Rafiq, accused, on the second copy of which the thumb‑impression of the accused was also taken. Zarar Ahmad Inspector P.W.1 then drafted his investigation report Exh.P.C., which he sent to Police Station Barki for registration of a case.

3. Muhammad Rafiq, accused denied all the allegations that were levelled against him, including the recovery alleged to have been made at his instance. He denied that the property belonged to him. He stated that the case had been trumped up against him due to his enmity with Haji Ata Muhammad from whose field the goods were recovered. He did not produce any evidence in his defence.

4. I have heard the arguments of the learned counsel for the appellant and the Customs Department. The most important question that arises is whether the appellant led to the recovery of the cloth, which was hidden in the field of Haji Ata Muhammad. Zarar Ahmad Inspector P.W.1 and Ghulam Haider Sepoy P.W.2 confirm this position. However, the investigation report Exh.P.C. which was sent by Zarar Ahmad, Inspector P.W.1 to Police Station Barki, does not refer to the fact that the appellant had pointed out the relevant field from where the cloth was recovered. The field apparently belonged to Haji Ata Muhammad and not to Muhammad Rafiq, appellant. Since the investigation report Exh.P.C. does not refer to the fact that the appellant led to the recovery of the cloth, the statements of Zarar Ahmad Inspector P.W.l and Ghulam Haider Sepoy P.W.2 that he did so, cannot be accepted with any degree of safety. It is not possible to believe that Muhammad Rafiq appellant, would have been able to escrete so large a quantity of cloth, without the knowledge of Haji Ata Muhammad, to whom the field belonged, or the other members o his family of his servants. Still further, though Zarar Ahmad, Inspector P.W.l and Ghulam Haider Sepoy P.W. 2 alleged that the recovery memo. evidencing the seizure of the cloth was prepared on 21‑4‑1983, but memo. Exh.P.A. actually shows that it was prepared on 22‑4‑1983. The date of the recovery of the cloth is also shrouded in mystery. Taking all circumstances into consideration, it cannot safely be inferred that Muhammad Rafiq alias Feeqa, appellant, pointed out the field from where the Pakistani cloth was recovered, or that the seizure was made on 21‑4‑1983, as alleged. The appellant, therefore, is entitled to the benefit of doubt.

5. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Muhammad Rafiq alias Feeqa, appellant, is set aside. The appellant is on bail. His bail bond shall stand dis charged. The fine, if any recovered from him, shall be refunded to him. S.A./M‑769/L Appeal accepted.