1988 P Cr (PLP)

Sh. Maqbool Ahmad II for the State. Date of hearing: 13th January, 1988. Allah Bux, Abdul Chafoor and Muhammad Sharif were tried by the learned Special Judge, Customs, Lahore, under section 156(1). 8 of the Customs Act for attempting to smuggle opium across the border. Allah Bux and Abdul Chafoor accused were convicted under the said section and sentenced to two years' R.I. each with a fine of Rs.1,000 each or in default thereof to undergo further R.I. for 6 months each. Muhammad Sharif accused was given the benefit of doubt and acquitted. The appeal (Criminal Appeal No. 647/C of 1979) preferred by Allah Bux and Abdul Ghafoor convicts is now before me for disposal.

2. The brief facts of the case are that Muhammad Gul D.S.R., Rangers, P.W.3 on receipt of secret information on 5‑1‑1977 organized a raiding party comprising himself and Wali Jan, Hav. P.W.1, Rab Nawaz, Naik, P.W.2, Zulfiqar, L/Naik. Mahr Khan Sepoy and few others, They picketed themselves near Canal Dry Bridge near village Aal. On 6‑1‑1977 at about 3‑00 a.m. the picket party saw three persons coming from the side of Pakistan towards village Aal. The border was 11 miles away. When the accused came near, the picket party challenged them. One of the accused fired at the picket party. The Rangers surrounded the accused and arrested Allah Bux and Abdul Ghafoor, accused, whilst the third, who later was found to be Muhammad Sharif, ran away. From the personal search of Allah Bux and Abdul Ghafoor, accused, rifle P.1 and Pistol P.2 were recovered, which were taken into possession vide :Memo. P.B. and P.C. respectively. The raiding party found 6 pouches containing opium near the place where two accused were apprehended. The said 6 pouches contained 1 Kilogram of opium, which were taken into possession vide Memo. No.PA. Muhammad Gul, D.S.R., " P.W.3, prepared the inspection report Exh. PD, which he sent to the Police Station Khudian, where formal F.I.R. Ex.PD/1 was recorded at 11.30 a.m.

3. All the accused denied the allegations that were levelled against them, including the recoveries alleged to have been made at their instance. They did not claim the opium to be their property. All the accused stated that they had been falsely involved at the instance of Akbar and Nawab Dogars, who were their enemies.

4. Abdul Ghafoor and Allah Bux produced Ramzan D.W. 1 and Sher Muhammad D.W.2 in their defence to prove their good character.

5. I have heard the arguments of the learned counsel for the appellants and the Customs authorities. I need not go into the merits of the case, as this appeal succeeds on legal issues. In this case no notices were served under section 171 of the Customs Act on the three appellants who were arrested, giving the reasons for their arrest or the seizure of the opium and the fire arms for them. The requirement of notice being mandatory, the omission vitiates their conviction. If any authority is required for this view, Abdul Rauf Khan v. The State and Superintendent Land Customs 1983 P Cr. L J 19; Aziz Ullah v. The State P L D 1981 Kar. 250; Abdul Rauf v. The State 1983 P Cr. L J 19; Chufran Ahmad v. The State 1983 P Cr. L J 620; Noor Dad v. The State 1983 P Cr. L J 623; Muhammad Amin v. The State 1987 P Cr. L J 311 and Muhammad Siddiq v. The State 1987 P Cr. L J 1091 may be referred. The conviction of the appellants is, therefore, liable to be set aside on this account.

6. It is also obvious that neither the six pouches of opium nor the two fire‑arms were sealed at the spot when the recovery memos were prepared. Muhammad Gul, D.S.R., P.W.3 in cross‑examination stated that the pouches were stitched. They were opened and samples were taken from each pouch and again stitched. It is not clear in whose presence the samples were taken and sealed. Nobody has stated as to who took the samples to the office of the Chemical Examiner and on what date.

7. For the reasons stated above, conviction of the appellants cannot be maintained and they are entitled to acquittal.

8. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Allah Bux and Abdul Ghafoor, appellants, are set aside. All the appellants are on bail. Their bail bonds shall stands discharged. S.A./A‑258/L Appeal accepted.