2022 PLP 1311 (PTD)

ABDULLAH BALOCH, J.

This judgment disposes of Custom Appeal No.01 of 2022 filed by the appellant Habibullah Son of Abdul Hameed, against the judgment dated 31st December 2021 ("the impugned judgment") passed by Special Judge Customs, Lasbella ("the trial Court"), whereby the appellant was convicted under Section 156(1) of the Customs Act, 1969 and sentenced to suffer R.I. for a period of three (03) years with fine of Rs.1,263,263, /- (Rupees One Million Two Hundred Sixty Three Thousand Two Hundred Sixty Three) or in default thereof to further suffer three (03) months S.I. The benefit of Section 382-B Cr.P.C. has also been extended in favour of appellant.

2. Facts of the case are that on 28th February 2021 at about 1150-hrs, the complainant namely Subedar Muhammad Ejaz, Pakistan Coast Guard lodged FIR No.27 of 2021 at Police Station Pakistan Coast Guard Uthal District Lasbella, with the averments that on the said date they were on usual patrolling duty towards Winder, when Al-Nisar Coach bearing Registration No.JB-8533 was intercepted at main RCD Road towards Winder from Headquarters at distance of 20-KM, the search thereof was resulted into recovery of foreign smuggled items i.e. (1) Betel nuts 859 kg (2) Mix cloths 1114 kg, (3) Padlock (small) 13 cotton (4) China salt 05 bags and (5) Cigarette pine 170 sticks stashed under seats of the said coach in exclusive possession and conscious of the driver namely Habibullah son of Abdul Hameed.

3. After completion of investigation, the appellant was challaned before the trial Court, which indicated the charge and on denial, the prosecution produced three (03) witnesses. Whereafter the appellant was examined under Section 342, Cr.P.C. However, neither he recorded his statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above in para No.1, whereafter the instant appeal has been filed.

4. Heard the learned counsel for parties and perused the available record, which reveals that the Pakistan Coast Guard personnel during usual patrolling intercepted Al-Nisar Coach bearing Registration No.JB-8533 in the main RCD road towards Winder from Headquarters. The search of coach in question was resulted into recovery of foreign smuggled items as mentioned hereinabove in para No.2. The coach in question was being driven by the appellant. To substantiate its case, the prosecution has produced three (03) PWs. PW-1 Subedar Muhammad Ijaz is the complainant of the case, who deposed the contents of the FIR. While PW-2 Naik Sajid Mehmood is recovery witness, who produced recovery memos, inventory of smuggled goods, while PW-3 Naib Subedar Shafiullah is the Investigating Officer of the case, who counted the steps taken by him during the course of investigation.

5. It is worth to mention here that neither the smuggled goods nor the carrier (coach) bearing registration No.JB-8533 was produced before the learned trial Court, which were required to be produced by the prosecution in support of its version, but admittedly the prosecution has failed to produce the said articles before the learned trial Court and this fact was admitted in examination in chief and cross-examination of PW-2, during the course of cross-examination PW-2 in reply of question No.19 admitted that: In reply of question No.25 deposed that:

6. All such glaring lacunas and infirmities create serious dents in the case of prosecution. Besides, it was observed that none of the passenger, conductor etc. of the Coach in question was associated as witness by the Investigating Officer, this fact alone creates serious doubts in the case of prosecution, but the benefit of such doubts have not been extended in favour of appellant by the learned trial Court at the time of recording conviction of the appellant, for which the appellant was entitled.

7. Reliance in this regard is placed on the case of "Tariq Pervaiz v. The State, 1995 SCMR 1345", wherein the Hon'ble apex Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as matter of right. " Thus, the impugned judgment passed by the learned trial Court suffers from mis-reading, non-reading and misappreciation of law and evidence, which is not sustainable. For the reasons discussed hereinabove, the appeal is accepted. The impugned judgment dated 31st December 2021 passed by Special Judge Customs, Lasbella is set aside, while extending the benefit of doubt the appellant Habibullah son of Abdul Hameed, is acquitted of the charge. The appellant is on bail; his bail bonds stands discharged after lapse of appeal period. SA/46/Bal. Appeal accepted.