1983 P Cr (PLP)

4. Prosecution examined complainant Muhammad Yar Khan Exh. 11, and P. Ws. Najmul Hassan Exh. 2, Nazim Hussain Exh. 6, Riaz Hussain Exh.

10. A.S.I. Muhammad Ayub was given up under statement Exh. 9.

5. In their statements Exhs. 14 and 16, the appellants denied prosecu tion allegations and disowned the articles recovered in the case by police. They submitted their statements in writing Exhs. 15 and

17. In his state ment Exh. 15, appellant Ghufran Ahmad added, that on l0th July, 1975 at 6‑15 a. m, he was sleeping in his house, when he got up in consequence of knock at his door, which he opened. That there was Police car and a taxi with armed police outside the door. The Police Officers caught him and dragged him in the taxi. Appellant Ghufran added, that he was taken to C. I. A. Office, where he met co‑accused Shaukat Ali, who came from the Police car. In his statement Exh. 17, appellant Shaukat stated, that on l0th July, 1975 at 6 a. m., he was in his house, when there was a knock at his door. That he got up and opened the door and saw a Police car and a taxi. He added that the armed policemen questioned him, if he was Shaukat and then caught hold of him, after his replying in the affirmative. That he was taken to Ghufran's house, where Ghufran was also arrested and that both were taken to C. I. A. Office, Saddar. Both the appellants stated, that they were kept in custody till 12th July, 1975, when they were produced before a Magistrate for remand. Both the appellants claimed being innocent. Appellant Ghufran added, that he was implicated falsely at the instance of Zahir, against whom Customs people registered case at his instance. He produced such certificate issued from the Customs Intelligence. Both the appellants added, that Najmul Hassan, in his evidence, had admitted that he used to close his shop on Friday, although on 11th July, 1975, it was Friday.

6. In their defence, the appellants examined D. Ws. Afzal Ahmad Quraishi Exh. 20, Syed Muhammad Zafar Saeed Exh. 21, Manzoor Ahmad Exh. 22, Mahmoodur Rehman Exh. 23 and Abdul Ghafoor Exh. 24.

7. The learned trial Court taking into consideration the evidence adduced before it, convicted the appellants, as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in memo. of appeal.

8. The learned Advocate for the appellants in support of the above appeal submitted as under :‑ (a) That notice under section 171, Customs Act was not given to the appellants and consequently their conviction cannot be sustained. In support of this contention, the learned Advocate for the appellants relied upon cases reported in P L D 1981 Lah. 13 and P L D 1981 Kar. 250. (b) There are material contradictions in the statements of P. Ws. interse and otherwise also and as such no reliance can be placed on such statements. In support of this contention the learned Advocate for the appellants relied upon cases reported in 1976 P Cr. L J 1127 and 1125. (c) That statements of D. Ws. were rejected without cogent reasons.

9. In view of the above contentions, the learned Advocate for the appellants submitted, that convictions of the appellants and sentences awarded to them cannot legally be sustained.

10. The learned Advocate appearing for the State at the outset sub mitted, that he was not supporting the impugned judgment, as no notice under section 171, Customs Act, 1969, was given to the appellants and as such cases cited by the learned Advocate for the appellants are fully appli cable to present case.

11. I have carefully considered the above submissions of the learned Advocates before me and have gone, through R & P of the learned trial Court as well as through the impugned judgment and cases cited by the learned Advocate for the appellants.

12. It is admitted position, that no notice under section 171 of Customs Act, 1969 was given to the appellants, which was mandatory and as such convictions of the appellants cannot legally be sustained. In this connection cases cited by the learned Advocate for the appellants are fully applicable to this case, in my opinion and I agree with the judgments, for the reasons given in the said judgments. In addition to this there are material contradictions in the statements of P. Ws. P. W. Najmut Hassan in his cross‑examination admitted, that he keeps his shop closed on Friday. It may be noted that 11th July, 1975 was Friday and this witness has given no special reasons for keeping his shop open on the Friday i.e. 11th July, 1975. In view of this presence of P.W. 1 Najmul Hassan and P. W. 3 Riaz, the alleged Mashirs of the recovery becomes doubtful. Even reasons given by the learned trial Court, while rejecting statements of D. Ws. are not cogent, in my opinion.

13. Therefore, I am of the opinion, that prosecution has failed to prove its case against the appellants beyond reasonable doubt for above reasons and convictions of the appellants in the absence of notice given to them under section 171 of Customs Act, 1969, is also bad and cannot be, sustained.

14. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment anti acquit them by giving benefit of doubt and discharge the bail bonds executed by the appellants Appeal allowed.