1987 PLP 1948 (MLD)

S.156(1)(8)(85)/92--Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4--Smuggling--Charas--Abcused were far away from Indian border when they were intercepted- -Charas was recovered from their possession at spot and also from house of one of accused- Held, accused could not be said that they were going to smuggle aras to India--In so far as recovery of Charas was concerned, proper course for prosecution was to prosecute accused under Prohibition (Enforcement of Hadd) Order, 1979--Accused acquitted of charges under customs Act in circumstances. Major Waheeuddin Virk for Appellants. Sh . Maqsood Ahmad II for the State. Date of hearing: 20th May, 1987. Ghulam Murtaza (33) and Maqsood Ahmad (30) were tried for the offences under section 156(1)(8)(85)/92 of the Customs Act, 1969. On 22-7-1986 they were convicted by Special Judge Customs and sentenced to 4 years' R.I. each with a fine of Rs.20.000 each, in default to undergo 6 months' S.I. They were awarded five stripes also under section 156(8). They were also sentenced to one year R.I. each under section 1560)(85-b). Both the sentences were ordered to run concurrently. The appeal of the convicts is before me. 2. Briefly the facts are that on 12-4-1986, on secret information that the appellants and their companion Humayun absconder were to smuggle Charas to India, raiding party was constituted, the appellants and their companion were sighted in car No.LEM 3100, chased and apprehended at Mile stone No.33 on Wazirabad-Sialkot Road before they could reaca Sialkot. Humayun made good his escape 20 kgs. Charas was recovered from the car. Later Maqsood got recovered 20 kgs. Charas from his house in Wazirabad. These articles were taken into possession, made into sealed parcel and got examined by the Chemical Examiner who found them to contain Charas. 3. The sole question for determination would be whether it can be said that they were going to smuggle the articles to India, because they had not yet reached Sialkot whereas the Indian border was beyond Sialkot. Since the appellants were far away from the border, it cannot be said that they were going to smuggle the Charas to India. In so far as the recovery of Charas from the accused is concerned, there is no doubt about it. One of the appellants even got the same recovered from his house. The proper course in my opinion would have been to prosecute the accused under section 3/4 of the Hudood Ordinance, 1979, which the prosecuting agency may consider even now. The appeal is, however, accepted and tile appellants are acquitted of the charge under the Customs Act. M.Y.H./G-72/L Appeal accepted