1980 P Cr (PLP)

AGHA ALI HYDER, C. J.‑The respondent was tried by the learned Special Judge, Customs and Taxation, Karachi for' an offence under sec tion 156 (1) (89) of Customs Act of 1969 and acquitted. The Government has preferred an appeal against the same. The prosecution story in brief is that on 6th July, 1973 at about 4.00 a. m. the Coast Guard Staff had searched the house of the respondent after ‑breaking open the lock, and secured from there a number of smug gled goods including wrist watches, chains, record players/transistor and other items, valued at Rs. 32,

560. The offence was registered and the respondent came to be apprehended after a few days. On the 24th of July, 1973 he. was produced before a Magistrate, where his judicial confession Was recorded. After due investigation the case came to be challaned. The respondent in his statement denied the allegations made against him and also retracted the confession, saying that he did not know what was written by the Magistrate, and he was just made to sign. Inter alia he had the following to say :‑ "On the same date 5th July, 1979 there was a quarrel between Coast Guards and the people of Mohallah. The Coast Guards people were injured in that incident. The report was lodged by them at the Police Station. After about two hours the Coast Guards encircled the entire area and searched many houses. Whatever goods they had recovered, they brought on the road and collected the same there. Thereafter whosoever they suspected by the Coast Guards to have been involved in the incident of fight with Coast Guards, were foisted the goods involved in cases. I was involved in the case of fight with the Coast Guards and I have been let off in that case." There are two witnesses from the Coast Guard about the seizure of goods, namely Arifuddin Ahmed, Naib‑Subedar, and Major A. S. Khan Samad. On their own showing, the house was closed and there was nobody therein. It also appears that a number of houses of the Mohallah, had been cordoned off by the Coast Guard. However, the only Mashir examined in the cage namely Fakhruddin gave a complete go‑by to the prosecution case. He stated the goods were lying on the road, and that the bundle has not been opened in his presence. He was cross‑examined by the Public Prosecutor, but nothing worthwhile could be elicited from him in cross‑examination. The other mashir was given up. On the showing of the prosecution the respondent was living in a different house, though very close. There is also no proof, apart from the word of the two witnesses of the Coast Guard, that the place from where the articles had been secured, was owned by him or rented by him. It is also admitted by Major Khan that there was a dispute between the Coast Guard authority ties and the residents of the area, a few hours before the seizure, in which a number of the Coast Guard Staff had been stoned and injured. It can not therefore, be said under the circumstances of the case, that the good in question had been secured from the house of the respondent. The only other evidence in the case against the respondent is the judicial confession made by him. As mentioned earlier, that was retracted. It is clearly brought out from the record that the respondent had been apprehended by the Risalla Police, and later on handed over to the Coast Guard. The memorandum of the judicial confession shows, that the arrest had been effected on 14th July, 1973 and the confession came to be recorded as late as on 24th July, 1973. It is also the grievance of the B respondent that he was coerced into making the judicial confession, That apart, there can be no doubt that the confession was recorded after a considerable delay, and certainly long after 24 hours. The law as i stands, will not countenance the same and it has to be totally ruled out of consideration. It is not necessary therefore, to look into the defence evidence. On this short ground, the appeal is liable to be dismissed an if hereby dismissed. The respondent is on bail, and the bail bonds furnished, stand cancelled.