2018 PLP 1961 (PTD)

ALI BAIG, J.

This criminal appeal under section 185-F Customs Act, 1969 read with section 410, Cr.P.C. has been filed against the impugned judgment dated 22-04-2016 passed by the learned Special Judge Custom and Banking Court Gilgit-Baltistan, whereby the learned trial court has convicted the appellant/convict and sentenced to imprisonment for one year with a fine of Rs.20,000/- (Twenty thousand) under section 156 sub-clause 89 Customs Act, 1969.

2. Brief but relevant facts giving rise to the filing of this criminal appeal as disclosed in the FIR bearing No.14/2008 registered at Police Station Gulmit Gojal on 20-10-2008 are that on the day of occurrence i.e. 16-10-2008 the FIR lodger namely Sheikh Mudasir Ahmed, Inspector Customs was present along with his colleague Custom staff at Check Post Sost towards Khunjarab Pass i.e. Zero Point between Pakistan and China. In the meanwhile a Truck bearing Registration No.GLT-1554 arrived at the scene of occurrence about 17-00 hours from China side which was signaled to stop by Sepoy Iqbal Ali, PW-II and the appellant who was driving the truck stopped the truck. The same was checked and a carton lying near driver seat was found and when searched the carton, the complainant and his colleague found Pakistani currency amounting to Rs.8899500/- (Rupees eighty eight lacs ninety nine thousand and five hundred) in the said carton. During inquiry the appellant/convict namely Qaiser told that he was taking the money in question to be given to one Nadir Hussain which were sent by one Haji Anwar through him.

3. After completion of the usual investigation by prosecution challan/police final report was submitted in the court of Special Judge Custom and Banking Court Gilgit-Baltistan Gilgit for trial of case against the present appellant/convict and his co-accused Nadir Hussain.

4. The learned Special Judge Custom and Banking Court after fulfilling legal formalities framed charge against the present appellant/convict and his co-accused namely Nadir Hussain vide charge sheet dated 31-5-2012. To which the appellant/convict pleaded not guilty and opted to contest the case. Accordingly, the learned Special Judge Custom and Banking Court Gilgit-Baltistan summoned the P.Ws.

5. In order to substantiate its case the prosecution produced and examined only three P.Ws namely Sheikh Mudasir Ahmed, Inspector Custom/complainant, PW-2 namely Sepoy Iqbal Ali and PW-3 namely Hurmat Hussain, Inspector Customs. Although the prosecution had cited six P.Ws in the calendar of witnesses of challan but the prosecution has abandoned three P.Ws and has examined only three P.Ws who are too Customs Officials.

6. After examination of the above named P.Ws in the court the prosecution closed it's side. Thereafter accused/convict were examined under section 342, Cr.P.C. by the learned trial court. In their statement recorded under section 342, Cr.P.C. the accused/appellant and co-accused Nadir Hussain denied the charge levelled against them and professed their innocence with the plea that when the Truck reached at Berkhoon area one Syed Muhammad Riaz handed over a carton to appellant/convict Qaiser containing money as amanat to be handed over to the co-accused Nadir Hussain at Sost. When the Truck reached at border PW-1 namely Sheikh Mudasir Ahmed stopped the vehicle/truck and impounded the carton and demanded illegal gratification from the appellant/convict which was denied by the appellant/convict. Resultantly, he annoyed and got registered a criminal case against the appellant/ convict and his co-accused namely Nadir Hussain. In support of their plea the appellant/convict and his co-accused Nadir Hussain produced two D.Ws namely Ghulam Abbas and Syed Muhammad Riaz. The appellant/convict and his co-accused have also got recorded, their statement on oath under section 340(2), Cr.P.C. narrating the same plea which was written in their statements recorded under section 342, Cr.P.C.

7. After conclusion of trial the learned trial court convicted the present appellant/convict under section 156 sub-clause (89) Customs Act, 1969 and sentenced to rigorous imprisonment for one year with fine of Rs.20,000/-. In default of payment of amount of fine, the appellant/ convict shall undergo further imprisonment for one month and benefit of section 382, Cr.P.C. has also been extended to the appellant/convict whereas the learned trial court has acquitted co-accused of the present appellant namely Nadir Hussain.

8. Feeling aggrieved by the aforesaid judgment/order passed by the learned trial court the appellant/convict has preferred the instant appeal in this court.

9. The learned counsel appearing on behalf of the appellant/convict contended that the impugned judgment dated 22-4-2016 passed by the learned trial court is contrary to law and facts on the record of the case as such the impugned judgment passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellant/convict further contended that occurrence has allegedly taken place on 16-10-2008 whereas FIR has been lodged on 20-10-2008; as such there is four days unexplained delay in lodging of FIR. The learned counsel for the appellant/convict further argued that there is no cogent evidence showing that the said currency was smuggled from China to Pakistan. The learned counsel for the appellant/convict further argued that the prosecution has produced complainant and two Custom Officials as P.Ws and have abandoned three material P.Ws, hence the prosecution has failed to prove it's case against the appellant/convict. Concluding his arguments the learned counsel for the appellant/convict argued even prosecution has failed to produce case property/currency notes in the court which creates serious doubt regarding recovery of currency notes amounting to Rs.8899500/- (Rupees eighty eight lacs ninety nine thousand and five hundred) from the possession of the appellant/convict.

10. On the other hand the learned Special Prosecutor Customs, Syed Riaz Kazimi Advocate, supported the impugned judgment passed by the learned trial court by contending that since the appellant/convict has smuggled huge amount of Pakistani currency from China to Pakistan, therefore, the learned trial court has rightly convicted the appellant/ convict. The learned Special Prosecutor Customs, Syed Riaz Kazimi Advocate, further argued that the Customs Officials have recovered the smuggled amount from the possession of the present appellant/convict, therefore, the learned trial court has rightly convicted the appellant/ convict and sentenced him one year R.I. with fine of Rs.20,000/- which may be maintained.

11. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties with their able assistance have gone through the record.

12. From perusal of record it transpires that the alleged occurrence was taken place on 16-10-2008 and FIR has been lodged on 20-10-2008, thus there is four days unexplained delay in lodging of the FIR. Hence we are of the firmed opinion that the FIR against the appellant/convict has been lodged after due deliberation and consultation which creates serious doubt regarding involvement of the appellant/ convict in the alleged crime. As per prosecution story one Haji Anwar Ali had handed over the disputed currency notes to the appellant/ convict at Kashghar for onward transmission the same to the co-accused Nadir Hussain at Sost but the prosecution has miserly failed to produce a single witness to prove their this version of the occurrence and even the prosecution has not bothered to produce and examine Haji Anwar Ali as PW. The prosecution had cited six P.Ws in calendar of witnesses of challan but the prosecution has abandoned three material P.Ws including FIR lodger/SHO Police Station Gulmit who had submitted the challan in the court. The prosecution has produced and examined complainant and two other customs official as P.Ws in the trial court and no independent/ impartial witness was neither cited in the calendar of witness of challan nor was produced in the court. Hence conviction cannot be based on the basis of statement of complainant and his colleague Custom staff.

13. Moreover, neither case property/currency notes were produced in the court at the time of recording of evidence which was mandatory nor FIR has been exhibited while recording statement of complainant. Furthermore, the alleged smuggled amounts were recovered from possession of the appellant/convict within the area of Pakistan i.e. (in District Hunza) and there is a China Check Post on the border and there is also Pakistani Check Post at the Pakistan/China border and how the officials who are posted/deputed at the border allowed the appellant/convict to smuggle the disputed currency notes and as per prosecution's version the carton containing the currency notes was lying on Cabin of truck beside/ near driver in open area as stated by PW-1 namely Mudasir Ahmed complainant and PW-2 namely Sepoy Iqbal Ali in their statements recorded before the trial court.

14. The prosecution has miserly failed to produce a single documentary and oral witness/evidence in the trial court to substantiate it's version. Whereas the appellant/convict has successfully proved his stance/plea taken in his statement recorded under section 342, Cr.P.C. by producing two independent witnesses namely Ghulam Abbas and Syed Muhammad Riaz in the trial court.

15. In view of above discussion and circumstances, it is noticed by this Court that the evidence adduced by the prosecution does not rings true as it suffer from inordinate delay in registration of FIR, unnatural conduct of the P.Ws, their presence at the crime scene with a big question mark. Conversely, the appellant/convict through his defence version remained successful in creating dent in the prosecution case giving rise to reasonable doubts, the benefit of which goes to the appellant/ convict which cannot be withheld from him. Consequently, this appeal is accepted and impugned judgment passed by the trial court is set aside. The appellant/convict namely Qaiser son of Dad Ali is acquitted of the charges levelled against him by prosecution. File. JK/172/GB Appeal accepted.