P L D 2004 Peshawar 232 (PLP)

Date of hearing: 10th May, 2004. This Jail Appeal has been filed by Naeem Shah son of Gul Shah, resident of Noormal Khel, par Hoti Mardan, against the judgment and order dated 15-3-2004 passed by the learned Special Judge (Central) Customs, Taxation and Anti-Smuggling N.-W.F.P. Peshawar, by which he was convicted under section 156(1) (89) read, with section 2(S) of the Customs Act and sentenced to two years imprisonment and fine of Rs. One lac, in default of payment to further undergo one year imprisonment. The benefit under section 382-B, Cr.P.C was also extended to him.

2. According to the prosecution case, a spy information was received that one Sahibzar was dealing in stolen and smuggled vehicles and that he had five such vehicles parked in Bungalow No.73, Sector-L, Sheikh-Maltoon Township Mardan. Accordingly, on 31-1-1999, a Team of the Crime and the Local Police headed by D.S.P. Noor Ali Khan raided the said Bungalow and recovered five vehicles of different make there from. Sahibzar could not be found. However, one Naeem Shah present in the bungalow was arrested. According to the prosecution, he had produced some documents pertaining to the vehicles. The vehicles were also taken into custody and sent to Forensic Science laboratory for examination and the documents produced were also checked. Two of the vehicles, i.e., a Toyota Land Cruiser and a Toyota Hilux Surf were found to be smuggled, as no duties and taxes were paid thereon. The documents of registration of Toyota Land Cruiser bearing No.DRA-91 were also found to be bogus. After these verifications, a case under section 156(1)(89) read with section 2(S) of the Customs Act 1969 was registered at Police Station Crime Branch Peshawar vide F.I.R. No.3 dated 8-2-1999. Sahibzar remained absconder, whereas Naeem Shah was tried by the learned Special Judge and was convicted and sentenced as stated above.

3. The learned counsel representing the appellant submitted that the appellant was merely a Chowkidar of the house, aged about 75 years, and that the real owner Shaibzar was never arrested. He further pointed out that the house wherefrom the vehicles were recovered belonged to one Saleem. That there is no evidence or record produced by the prosecution that either the house belonged to the appellant or that he was a tenant therein. On the confessional statement made by the appellant, the learned counsel submitted that it was recorded thirteen days after his arrest and that he never admitted that he owned the vehicles. The learned counsel further pointed out that initially, the appellant was treated as an case witness in the case and was marginal witness to the recovery memo vide which the vehicles were taken into possession and it was only when the real culprit could not be brought to justice, the appellant was made a scapegoat.

4. The learned Deputy Attorney General appearing for the State submitted that the appellant had admitted his guilt by making confessional statement. That he had admittedly produced the documents pertaining to the vehicles. He was, therefore, owner of the vehicles or at least was involved in dealing therewith.

5. The recovery of the five vehicles from house No.73-A, sector-L, Sheikh Mattoon Township Mardan stands proved through recovery memo, Exh.PW-1/1 by P. W-6, Sareer Iqbal, who at the relevant time was Inspector, Crime Branch Peshawar. He was marginal witness to the recovery memo. However, the documents which allegedly were produced by the appellant pertaining to the vehicles and also-- recovered through the same Exhibit PW.1/1 were not produced before the trial Court despite opportunities given to the prosecution witnesses. Since the documents were never brought on the record, the same obviously cannot be taken into consideration for or against the prosecution.

6. According to the confessional statement, the appellant has admitted that he had purchased the vehicles and had also given the names of the persons from whom they were purchased. The Magistrate who recorded the confession was examined as P.W.S. The confessional statement was recorded on 11-2-1999. The witness disclosed that the appellant was produced before him for the first time on 3-2-1999 for obtaining his police custody which was granted for two days. However, according to the statement of Sareer Iqbal P.W.6, marginal witness to Exh.PW-1/1, the appellant was arrested at the spot when the vehicles were seized. There is also evidence on the file that the appellant lead moved this Court through a Constitutional petition challenging his illegal detention. The appellant had, therefore, remained in illegal custody from the time of his arrest on 2.9-1-1999 till 9-2-1999, when he was for the first time produced before the Magistrate. The confessional statement was recorded thirteen days after arrest of the appellant. This statement is to be ruled out of consideration on the ground that it cannot be termed voluntary on account of the long detention of the appellant before his statement was recorded, the major part of which was illegal.

7. The appellant had not owned the vehicles during the adjudication proceedings which resulted in confiscation of the vehicles. It was the prosecution's own case that Sahibzar was the person who was dealing in the vehicles. The prosecution has not produced any evidence to show that the appellant either owned Bungalow No.73, mentioned above, or had rented the same. Mere presence of the appellant at the time of raid would not be sufficient to establish that he was in occupation of the said bungalow. In his statement recorded under section 342, Cr.P.C., the appellant stated that he was a Chowkidar and that the house was owned by one Saleem.

8. In the light of the above discussion, there is no sufficient evidence to establish that the appellant either owned, controlled or was involved in the smuggling, theft or purchase of the vehicles. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside and he shall be set at liberty forthwith if not wanted in any other case. H.B.T./160/P Appeal allowed.