2006 PLP 778 (YLR)

MIAN MUHAMMAD NAJAM?-UZ-ZAMAN, J.

Appellant Muhammad Ashraf along with Rafaqat Ali accused was tried in case F.I.R. No.130 of 1991, dated 1-12-1992 registered under sections 156(1)(8)/157/178 of Customs Act, at Police Station, Laiser Kalan, District Narowal, by the Special Judge, Customs, Lahore, who vide judgment dated 26-3-2003 while acquitting the co-accused convicted appellant under section 156(1)(8) of Customs Act and sentenced him to fourteen years' R.I. and to pay a fine of rupees five lacs or in default whereof to further undergo one year's R.I. Benefit of section 382-B, Cr.P.C. was also extended to him.

2. Challenging his conviction and sentence appellant has filed the instant appeal.

3. Prosecution case in brief as narrated in the F.I.R. is that on 1-12-1991 at 3-00 a.m. Major Muqarrab Hussain Shah complainant reported to the police that a spy tip off had been received by Lt.-Col. Ch. Azhar Mehmood, GSO-I, Pakistan Rangers that Muhammad Niamat (P.O.), Muhammad Ashraf appellant. Allah Ditta (P.O) and Rafaqat Ali would attempt to smuggle huge quantity of gold from Pakistan to India through a Car bearing Registration No.LOG-9265. Thus a Naka party headed by the complainant along with 24 officials of Rangers was established at 10-00 p.m. at distance of two and half kilometer from Indo Pak Border. At 1-30 midnight a Car bearing Registration No.LOG-9265 was seen coming towards India. The sane was signalled to stop. Two persons namely Allah Ditta (P.O.) and Rafaqat Ali accused who were identified in search light fled away by abandoning goods while two accused namely Muhammad Niamat (P.O.) and Muhammad Ashraf accused were apprehended. They were asked whether they wanted to be searched by a Magistrate to which they declined. Thus from personal search of Muhammad Niamat (P.O.) 100 biscuits of gold weight 1000 Tolas were recovered from his jacket which were wrapped on his body and 125 biscuits of gold weighing 1250 Tolas and a pistol .30 bore along with 18 rounds from a jacket lying in the car were recovered at his instance. From the personal search of Muhammad Ashraf appellant the raiding party recovered 100 biscuits of gold weighing 1000 Tolas. From the spot 125 biscuits of gold weighing 1250 Tolas which were thrown by Rafaqat and Allah Ditta accused were also recovered. Hence 450 biscuits of gold weight 4500 Tolas valuing Rs.1,82,05,000 were recovered from the accused. They were served with notice under section 171 of the Customs Act.

4. After complying with all legal formalities the Investigating Officer while declaring Allah Ditta and Muhammad Niamat accused as proclaimed offender, submitted challan against Muhammad Ashraf and Rafaqat accused before the trial Court where prosecution produced seven witnesses to prove the charge against the appellant. Asmat Ali Khan, Scientific Officer P.W. prepared report Exh.P.A. regarding parcels containing gold. Major Muqarab Hussain P.W.2 being complainant and head of the raiding party narrated the circumstances under which he apprehended the accused party and recovered gold at their instance. Muhammad Sarwar Awan, DSR P.W.3 and Muhammad Hussain Chishti, DSR P.W.4 were members of raiding party and in their presence Major Muqrab Hussain P.W.2 apprehended the accused and recovered gold from them. Manzoor Ahmad H.C. P.W.5 recorded formal F.I.R. Exh.P.1/1. Major Tariq Mehmood P.W.6 took the parcels containing gold for delivering the same to Pakistan Mint. Major Muhammad Khalid Khan, Director-General, ISI P. W.7 prepared report under section 173, Cr.P.C. and submitted challan before the trial Court.

5. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. Appellant while denying the charges took the plea which is as follows: "Fabricated evidence was produced against me to save the skin of the Rangers Staff. In fact on 30-11-1991, I along with Muhammad Niamat son of Asghar Ali and Muhamad Ashraf son of Ali Ahmad was going to supply the gold to the Customers at Kamoki Gujranwala, Gujrat and Rawalpindi in Car No.LOG-9265 belonging to my brother namely Zulfiaqr. Major Muqarrab along with other Rangers Officials intercepted our car at a distance of about 3 miles from Kamoki town and snatched away 4680 Tolas of gold forcibly and illegally despite the fact that the gold was in my lawful possession. The Rangers party brought me and my companion back to Lahore and released Muhammad Ashraf son of Ali Ahmad with direction that he would contact my relatives for settling a deal. My relative refused to settle any deal with the Rangers Officials and they planted the gold on me and my companion namely Niamat. I challenged this high-handedness of the Rangers through Writ Petition No.12106 of 1991 which came up for hearing before his Lordship Raja Afrasiab Khan and the honourable Judge directed S.H.O., Police Station, Kamoki District Gujranwala to entertain the complaint against the officials of Rangers. In pursuance of that direction F.I.R. No.101 of 1992 was registered at Police Station, Kamoki against the Rangers including Major Muqarrab Hussain and the investigation was entrusted to C.I.A., Gujranwala. After thorough investigation my version was believed and found correct and the Rengers Officials were held liable for the crime and the challan was submitted in the Court of competent jurisdiction. In this way the officials of the Rangers and the P.Ws. committed decoity against me and submitted false challan against me to save their skin. The Law Division directed joint trial of this case and the case challaned by the police against the Rangers. The Honourable High Court also passed direction that both the cases would be disposed of simultaneously after recording evidence separately. The accused belonging to Rangers Staff in case F.I.R. No.101 of 1992, Police Station, Kamoki got registered by me were acquitted on technical reason in the light of Supreme Court authority to the effect that challan against the Government official could not be submitted by the police and that the said challan could be submitted by F.I:A. or Anti-Corruption Department. Therefore, after acquittal of the said accused this challan was transferred to this Court. The Special Judge, Central was notified as Special Judge, Customs only for the sake of the present case." In his defence the appellant produced nine witnesses to prove his innocence. Sh. Bashir Ahmad, DSP, D.W.1, Nisar Ali Shah, S.-I. D.W.2 and Malik Tahir Mehmood, D.S.P. (R.) D.W.9 were the Investigating Officers of case F.I.R. No.101 of 1992 which was lodged by Muhammad Ashraf appellant against the Ranges Officials regarding his gold which allegedly was snatched by them. Amanat Ali D.W.3 and Abdul Rauf D.W.4 deposed that no such incident as mentioned in the F.I.R. had ever taken place in the village. Haider Ejaz D.W.5 and Ghulam Sarwar D.W.6 deposed in support of the F.I.R. lodged by the appellant against the Rengers officials and stated that they had seen Ranger officials dragging the appellant towards their official vehicle. They also made telephonic call at the residence of Muhammad Ashraf appellant to inform his family members. Statedly the telephone number was given to them by the appellant. Muhammad Siddique Retd. Inspector Police D.W.7 conducted investigation of case P.I.R. No.130 of 1991 for the offence under Arms Ordinance. Haji Muhammad Ashraf D.W.8 in support of case F.I.R. No.101 of 1992 registered at Police Station, Saddar Kamoki stated that at the time of arrest of Muhammad Ashraf appellant he was accompanying him. Statedly, they were going to Gujranwala for sale of gold when Rangers officials arrested appellant at Kamoki. Allegedly the gold carried by them was taken away by the said officials. Appellant also made statement under section 340(2), Cr.P.C. in support of his defence plea.

6. After appraisal of evidence available on record, the trial Court vide judgment dated 26-3-2003 convicted and sentenced the appellant as narrated earlier.

7. Learned counsel for the appellant submits that the Customs Law is a fiscal Statute and all the provisions of the Statute are to be complied with in letter and spirit, whereas in the present case the glaring violation committed by the Investigating Agency during the investigation are apparent from the record; the appellant and his co-accused were falsely involved in this case and the mala fide of the agency is very much apparent from the fact that F.I.R. No.101 of 1992 was registered against the Rangers Officials at Police Station, Saddar Kamoki under the orders of the High Court. In support of this argument learned counsel while relying upon order dated 24th April, 1973 issued by Ministry of Finance and Planning Development whereby the officials of Customs and other Agency who confiscate smuggling items are entitled for reward, has submitted that because of the said initiative the prosecuting agency has involved the appellant malafidely because the appellant deals in the business of gold. Further submits that at the time of making search the Investigating Officer never complied with the legal formalities are required under section 159 of the Customs Act, and thus the entire proceedings are nullity in the eye-of-law. Submits that during the search proceedings no independent witness from the public was made to join the proceedings. Learned counsel while relying on the statement of Muhammad Hussain Chishti P.W.4 (Recovery witness) submits that admittedly the raiding party left Lahore at 4-00 p.m. and reached at Mauza Nagowail. at 9-45 p.m. and thereafter established the picket at 11-00 p.m., thus there was sufficient time for the raiding party to ask the villagers of Mauza Nagowall to join the proceedings. Further submits that the case property i.e. car was never produced before the trial Court and that the complainant of this case himself had conducted the investigation instead of referring the matter to the competent officer. On the contrary, learned counsel for the State while supporting the impugned judgment, vehemently opposed the contentions raised by the learned counsel for the appellant.

8. With the able assistance of learned counsel for the parties, I have minutely gone through the record of this case. On the night between 30th November and 1st December, 1991 upon an information about the smuggling of a huge quantity of gold from Pakistan to Indian Territory. a raiding party headed by Major Muqarrab Hussain Shah, Commandant Pakistan Rangers P.W.2, was constituted and a picket (Naka) was established near Chantan Check Post (village Nagowall) falling within the jurisdiction of Police Station, Laisaer Kalan. At about 1-30 a.m. a car moving towards Indian Border was stopped and within the view of the raiding party two occupants of the car managed to flee whereas Muhammad Niamat (accused) and Muhammad Ashraf appellant were apprehended at the spot. During the personal search of Muhammad Niamat (accused) 100 biscuits of gold weighing 1000 Tolas were recovered. He also got recovered 125 biscuits of gold weighing 1250 Tolas from a jacket lying in the car. Similarly during the personal search of Muhammad Ashraf appellant 100 biscuits of gold weighing 1000 Tolas were recovered. Allegedly, the rest of accused while throwing 125 biscuits of gold weighing 1250 Tolas fled away from the spot. After the arrest of the appellant he was served with a notice under section 171 of Customs Act i.e. Exh. P.G. who also thumb-marked the same. The raiding party took into possession gold recovered at the instance of the appellant vide recovery memo. Exh.P.D. These recovery proceedings were also witnessed by Muhammad Sarwar Awan, DSR Pakistan Rangers P.W.3 and Muhammad Hussain Chishti, Inspector Rangers P.W.4 along with other members of the raiding party. Before the trial Court Major Muqarrab Hussain Shah P.W.2 (complainant) along with the said recovery witnesses while supporting the prosecution case narrated the circumstances under which Muhammad Ashraf appellant was arrested and a huge quantity of gold was recovered. All of them stood the test of searching cross-examination and remained steadfast. In order to prove the business of the witnesses it was suggested by the defence that they had concocted this false case against the appellant because they wanted to usurp the gold which was illegally taken into possession by Rangers Officials, when the appellant was going from Lala Musa to Gujranwala in his Car bearing No.LOG-9265 on 30-11-1991. He was stopped by the Ranger officials on the G.T. Road within the area of Police Station, Saddar, Kamoki. At the relevant time 4680 Tolas of gold was in the possession of appellant which was snatched , by the said officials and in that regard case F.1.R. No.101 of 1992 was registered at Police Station, Saddar Kamoki upon the direction of the High Court. In this regard I have observed that no doubt the said case was registered against the complainant and other witnesses of this case and during the investigation conducted by Malik Tahir Mehmood, DSP, D.W.9, the occurrence narrated in the said F.I.R. was found correct but the bare perusal of the statemew of this witness as well as the other Investigating Officers of this case namely Sh. Bashir Ahmad, D.S.P. D.W.1 .Ind Nisar Ali Shah S.-I. D.W.2 reveal that during investigation they neither joined the Ranger Officials (accused persons) nor the Mohallandars where alleged occurrence had taken place. Similarly nothing was recovered during the investigation and as stated by Sh. Bashir Ahmad, D.S.P. D.W. 1 during investigation he recorded the statements of 25 persons in Ranger Headquarters and they supported the stand of Rangers. It is also apparent from the statement of Malik Tahir Mehmood, D.S.P. D.W.9 that this case was also investigated by DSP, Muhammad Zaki who opined that case was false. Similarly the trial Court has also acquitted the accused while allowing application under section 265-K, Cr.P.C. on 29-4-2000 and the appeal against the said judgment admittedly has also been dismissed by the High Court. Even otherwise, after going through the said F.I.R., the record of the case as well as the judgment of the trial Court passed under section 265-K, Cr.P.C., I am of the view that the registration of the said case against the Rangers was a clavier device on the part of the appellant for creating a defence plea. It was also argued that during those days the import of gold was free and the appellant being a dealer in the gold had imported the gold which was allegedly recovered from his possession but the learned counsel has failed to point out any solid, cogent, positive evidence to show that appellant used to deal in the business of gold. In support of his argument learned counsel has relied on the statement of Haji Muhammad Ashraf D.W.B. The statement of this witness reveals that appellant also owns a shop in the Soha Bazar, Lahore but there is no independent evidence in that regard. Even otherwise, if it is presumed that the appellant being a dealer in gold had imported gold but the allegation against him is of smuggling gold out of Pakistan. Learned counsel for the appellant is not in position to show any policy of the Government authorizing any person to take the gold out of the country without any legal permission. The appellant was apprehended about two and a half k.ms. away from Indo Pak Border as it is apparent from the site-plan. This place was far away from the inhabited area of village Nagowall. Similarly the appellant and his co-accused were apprehended at 1-30 a.m. on 1-12-1991 and at the said odd hours of night the procurement of witnesses from the public was not possible, that is why, no witness from the public was made to join the recovery proceedings. Learned counsel for the appellant while challenging this part of prosecution case i.e. recovery of gold at the instance of the appellant, had relied on section 159(3) of the Customs Act and argued that during the said proceedings formalities of this section were never complied with and thus entire proceedings are liable to be set aside. I am afraid, this contention of the learned counsel has no force, as it has already been observed that during the odd hours of the night it was not possible for the raiding party to join the witnesses from the public. Even otherwise, it is well-settled that Government officials police officials etc. are as good a witness as any other person from the public unless it is proved that they had any malice or grouse against the accused. A huge quantity of gold i.e. 4500 Tolas was recovered from the appellant as well as his co-accused and plantation of such a huge quantity at the instance of the Ranger Authorities could not be believed. Before searching the person of the appellant he was served with notice under section 171 of the Customs Act which is Exh.P.G. This document also bears thumb-impression of the appellant. Thus the essential requirement of the law before conducting personal search was also complied with by the raiding party and in this regard, I see no illegality in the conduct of the raiding party at the relevant time. For what has been discussed above, I am of the view that prosecution has succeeded in proving charge against the appellant and this appeal has no merits. As far quantum of sentence of the appellant is concerned, I have observed that he is facing the agony of this case since 1991 and has suffered a lot. In this view of the matter, a lenient view qua the quantum of sentence would definitely meet the ends of justice. Accordingly, while dismissing the instant appeal the sentence of imprisonment of the appellant is reduced to ten years' R.I. with benefit of section 382-B, Cr.P.C. However, he shall pay the fine on the same terms and conditions as fixed by the trial Court. H.B.T./M-1398/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.