1999 PLP 1022 (MLD)

Sh. Anwar-ul-Haq, Dy.A.-G. for the State. Date of heading: 10th December, 1997. This is an appeal against the judgment, dated 29th of May, 1996 passed by the learned Special Judge Customs, Lahore whereby the appellant was convicted for the offence under section 156(1)89 read with section 178 of the Customs Act, 1969 and was sentenced to five years R.I. and to a fine of Rs.25,000.

2. The relevant facts are that the complainant received a secret information that the petitioner and his co-accused would attempt to smuggle gold and currency to India. The police party intercepted the accused who tried to run away. Talib alias Tabee accused threw the hand bag in the Baithak of one Master Iftikhar Ahmad while he and other co-accused escaped. Ghulam Haider the appellant was apprehended on the spot. The police recovered from the bag 45 rennies of foreign gold weighing 450 tolas of the value of Rs.18,00,000 (eighteen lac) and Pakistani currency of Rs.91,

017. The appellant led to recovery of another 50 tolas of foreign gold on 28-7-1988. The police also arrested Khair Din accused while Talib was declared P.O. The police after completing the investigation submitted the challan in the Court of Special Judge Customs. The charge was framed on 8-3-1990. The appellant and his co-accused denied the allegations. The prosecution examined Muhammad Yousaf ASI as P.W.1. He deposed that he recorded formal F.I.R. Exh.PA on receipt of complainant EX.PAL Mukhtar Ali Shah (Retired) A.S.I. appeared as P.W.2. He deposed that he partly investigated the case. Haji Qasim Ali, A.S.I. appeared as P.W.3 and deposed that on 26th of July, 1988 he received a secret information. He deputed Muhammad Aslam Constable to watch the movement of the accused. At about 9-00 p.m. he was informed that the accused were going towards the Railway Station. He prepared the raiding party and went to Mohallah Darul Aloom. The accused on seeing the Police started running away. Talib Hussain accused was holding a bag and while running he threw bag in the Baithak of Master Iftikhar Ahmad. The police arrested Ghulam Haider while the other two accused succeeded in escaping. The raiding party thereafter went to the Baithak of Master Iftikhar Ahmad who produced the bag which contained 45 rennies Exh.Pl/1 to 45 and also Pakistani currency worth Rs.91,

017. The same were taken into custody by the memo. Exh.PB. Ghulam Haider accused was served notice Exh. PC. The incident report prepared by him was produced as Exh.PA/l. He also prepared site plan Exh.PD and recorded the statements of P.Ws. under section 161 Cr.P.C and submitted the challan. The witnesses in the cross examination denied that he raided the house of Talib Hussain and recovered the gold and currency from there. He denied that the seals on gold slabs were affixed by him after recovery. He also denied that the words " a, were added by him in the recovery memo. Exh.PB and site plan Exh.PD after wards. He denied the suggestion that no notice under section 171 of the Customs Act was served on the appellant. It was admitted that the appellant disclosed that he dealt in the sale and purchase of hides. He categorically denied the suggestion that the real culprits were let off and the appellant was falsely implicated. Muhammad Ramzan appeared as P.W.4 and deposed that he was shown 50 slabs. He checked them and found them to be gold. Thereafter, prosecution examined Rashid Ahmad Murtaza, S.P. Pakpattan Sharif as P.W.5. He at the relevant time was posted as D.S.P., Depalpur and had partly investigated the case and interrogated the appellant who led to the recovery of five slabs of gold Exh.P2/1 to 5 from the trunk of a date tree. The same were taken into possession vide memo. Exh.PD/1 and prepared site plan Exh.PE. The witness also recorded statement of two P.Ws. under section 161, Cr.P.C. In the cross examination he admitted that five slabs recovered by him were mixed up with rest of the lot, therefore, he was unable to identify the said five slabs. He denied the suggestion that no recovery was effected by him. Thereafter, the statements of the accused under section 342, Cr.P.C. were recorded. The appellant stated that five slabs allegedly recovered from him were also in the bag but were kept separate and planted on him. He stated that he has been involved only because on account of suspicion that actually the gold belonged to him. The accused thereafter produced Shahadat Ali D.W.1. He stated that the appellant after retirement from Army started dealing in hides and in his opinion was innocent. In the cross-examination he stated that he has not appeared before the Investigating Officer. Mudaee Khan appeared as D.W.2. He stated that the accused started dealing in hides after retirement from the Army and was totally innocent. He admitted that he did not appear before the Investigating Officer to depose about the innocence of the accused. He also, admitted that he knew nothing about the present case. The learned Special Judge Customs after hearing the arguments convicted the appellant and sentenced him to five years R.I. and a fine of Rs.25,000 and in default to suffer further six months R.I. vide judgment, dated 29th of May, 1996; now this appeal. 3: The learned counsel for the appellant argued that the complainant P.W.3 has himself investigated the case, therefore, the whole proceedings were vitiated. In this behalf, he has referred to the judgment reported as Muhammad Ajmal v. The State (KLR 1994 Lahore Cr1.Cases 238). It is argued that Muhammad Hanif, Muhammad Hayat and Master Iftikhar Ahmad were not produced by the police. This will weaken the case of the prosecution. It is added that the trial Court has not taken into consideration the statements of the D. Ws. It is maintained that all the official witnesses have appeared against the appellant and none of the witnesses from public appeared. '

4. On the other hand Sh. Anwar-ul-Haq, learned Deputy Attorney-General argued that P.Ws.3 and 5 were not cross-examined as to the recovery and enmity, therefore, the recovery stood proved while P.W.4 was not cross-examined about the seal on the slabs. It is argued that it is not conceiveable that the Police would plant gold of the value of Rs.18 lacs in those days. It is added. that the appellant was apprehended on the spot and led to the recovery of five slabs of gold. These facts fully proved the case against the appellant and he was rightly convicted and sentenced.

5. I have given my anxious consideration to the arguments advanced on behalf of the parties and gone through the record. The case was not only investigated by P.W.3 but also by P.Ws.2 and

5. It was a case of raid and partial investigation by the Incharge of the raiding party cannot be objected to. The case of Muhammad Ajmal (Supra) is not relevant. The recovery of gold and recovery memos were fully proved by the witnesses and their statements were not challenged in the cross-examination. Muhammad Hanif, Muhammad Hayat and Master Iftikhar Ahmad from public may not have been produced because of the influence of the appellant and one accused being P.O. It is a matter of common Knowledge that respectable citizens are afraid of smugglers and bad characters. In the present case D.W.1 is a councillor and D.W.2 is a Lamberdar and in the circumstances the prosecution was perfectly justified not to produce the witnesses from public. The same were also not required. The case against the appellant was fully proved by the fact that he was apprehended on the spot and led to recovery of five slabs of gold. This fact is fully proved by the statement of P.W.5 who was a senior police officer and was not a member of the raiding party. It is not possible to conceal that five slabs were kept back in order to show the recovery from the appellant.

6. Learned counsel for the appellant argued that the case of the appellant was at par with Khair Din who was acquitted by the learned trial Court on the same evidence which the appellant was convicted. The two facts namely that the appellant was apprehended on the spot and led to recovery of five slabs of gold made the difference. The case against the appellant is fully proved.

7. Before parting with the judgment it may be recorded the impression from the facts on record is that no serious effort was made to apprehend Talib. Let copy of the judgment be sent to the D.I.-G Crimes Lahore, who is directed to make serious efforts for the arrest of said accused and submit report within one month to the Registrar of this Court.

8. The upshot of this discussion is that there is no merit in this appeal. The same is dismissed. H.B.T./C-78/L Appeal dismissed.