P L D 1986 Peshawar 15 (PLP)

Raham Badshah Khattak for Petitioners. Raza Ahmad Khan, Deputy Attorney‑General for the State: Date of hearing : 12th November, 1986. This revision is directed against the order of the learned Special Judge Customs, Peshawar dated 13‑4‑1986 whereby the application under sections 265‑K and 249, Cr. P. C. submitted by the petitioners was rejected. According to the prosecution, during the course of a `Nakabandi' car No. PRE 3175 coming from Data Adam Khel was intercepted on Kohat Road. The accused‑petitioners were seated in the car. The car was searched anti arms and ammunitions allegedly of foreign origin, detailed in the recovery memo. Exh. P. W. 2/1, were recovered. The goods were seized and the petitioners were challaned under sections ‑156(1)(77)(85)(89), 1157, 178 of the Customs Act, 191,9 and section 13/14 of the West Pakistan Arms Ordinance, 1965.

2. The petitioners were proceeded against by the Customs authorities and after holding thorough enquiry the Deputy Collector of Customs vide his order dated 10‑8‑1983 came to the conclusion that it has been established by the Experts that the seized arms and ammunitions are of Darra made and not of foreign origin. The case registered against the accused under the provisions of Customs Act is not, therefore, maintain able. However, since it has been proved during investigation that the aims and ammunitions were not the same as are indicated in the licences, a case against the accused under section 13/14 of Arms Ordinance has been established. In view of the above, the case under the provisions of Customs Act is withdrawn. The case property alongwith investigation report and other connecting papers may be handed over to the concerned Police Station for further investigation and prosecution of the accused under the provisions of Arms Ordinance and other relevant laws.' Thereafter, it appears that the accused‑petitioners were prosecuted in the Court of a Magistrate and on 20‑5‑1984 Janab Gul accused was convicted under section 13/14, Arms Ordinance read with section 165‑A; P. P. C. and sentenced to imprisonment till the rising of the Court and a fine oft Rs. 100 under each section or in default to S. 1.for fifteen days in each case. The co‑accused Muhammad Younas was, however, acquitted. It was also directed that the case property be returned on production of valid licences. Thereafter, the petitioners were proceeded against in the Court of Special Judge Customs for the offences under the Customs Act, 1969. In the list of witnesses the' prosecution cited six witnesses, out of whom four witnesses have already been examined. Nasiruddin Alam, Deputy Superintendent Customs (P. W. 1) stated that after the completion of the investigation, he submitted complete challan against the accused. Mazhar Abid Malik (P. W. 2) was posted as Deputy Superintendent Customs Mobile Squad No. 1, Peshawar Cantt. He stated that on 17‑12‑1982 after holding a Nakabandi on Kohat Road the car in question was intercepted which was driven by Muhammad Younas petitioner and Janab Gut co‑accused accompanied him in the car. The car was searched and arms and ammunitions detailed in the recovery memo. Exh. P. W. 2/1, were recovered. He also stated that Janab Gut petitioner resisted the search and offered Rs. 50,000 as bribe to the Customs Authorities. He stated that goods of foreign made including rifles of foreign as well as Pakistan origin, alongwith the cartridges; detailed in the recovery memo. Exh. P. W. 2/1 were recovered. He is also a marginal witness to the recovery memo. He did not know if the Customs Authorities had received a letter from the Arms Expert stating that the arms were country made. Muhammad Iqbal, Customs Inspector (P.W. 3) also deposed to the recovery of the arms and ammunitions allegedly of foreign origin from the said car and that the petitioners offered a sum of Rs. 50,000 as bribe for not checking the car. The Murasila Exh. P. X. I was prepared by him and forwarded to the Police Station for registration of the case. He stated that he had not undertaken any training for differenciating between the country made and foreign made weapons and that the arms which were of foreign origin were so mentioned in the recovery memo. Exh. P. W. 2/1. How ever, the case property was not available in the Court when he was being examined as a witness to the case. Pir Liaqat, Sepoy Customs (P. W. 4) was handed over the Murasila Exh. P. X. 1, which he took to the Police Station, Matani where the present case was registered against the peti tioners vide F. I. R. (copy Exh. P. W. 4/1). In view of the evidence referred to above and the other material available in the case against the petitioners, the learned Special Judge Customs rejected their application Fide order dated 13‑4‑1986,

3. It is contended by the petitioners' counsel that since there was no probability of the petitioners being convicted of the, offences they are charged with, the learned trial Court has illegally disallowed their applica tion under section 265‑K, Cr. P. C. It is also contended that in the departmental proceedings the arms and ammunitions were not found to be of foreign origin and, therefore, for this reason the said proceedings were withdrawn and the petitioners were absolved of the offences under the Customs Act, 1969. Moreover, since the offence was found to be covered under section 13/14 of the Arms Ordinance, they were prosecuted and ultimately convicted as stated above. In these circumstances, there was no justification in law for prosecuting the petitioners under the provisions of the Customs Act in the Court of the learned Special Judge Customs particularly, when the evidence adduced in the case also does not make out a case that the petitioners had committed any offence under the provisions of the Customs Act and thus there was no probability that they would be ultimately convicted‑ On the other hand, learned counsel for the State contended that the criminal proceedings before the Special Judge Customs and the departmental proceedings were independent of each other and, therefore, the mere fact that the petitioners had been absolved of their liability in the departmental proceedings would not entitle them to claim acquittal in the criminal case which is to be dealt with on the basis of the evidence adduced in the case. The contention is not without force and it is correctly stated that the case in hand is to be dealt with on the basis of the evidence produced by the prosecution. However, at the outset, it may be mentioned that the evidence‑ referred to above does not establish that the seized goods were of foreign origin. No Expert has been examined in the case nor any one has been cited as a witness. The four witnesses examined have merely deposed about the recovery the seized goods from the possession of the petitioners which are alleged to be of foreign origin. The goods could not be produced for the inspection of the Court as they had already been released to the petitioners. In the absence of any positive evidence or Experts' opinion, it can be said at this stage that there is no probability of the petitioners being convicted of the offences under the Customs Act. It may be mentioned that the remaining two witnesses of the prosecution, namely Syed Akbar, Retired Superintendent and the S.H.O., P.S. Matani are of formal nature; the former is the marginal witness to the recovery memo. Exh. P. W. 2/1 and the latter has registered the case against the petitioners vide F. I. R. Exh. P. W. 4/1. On the other hand, reliance is placed by the petitioners on a certificate dated 12‑1‑1983 addressed to the Deputy Superintendent Customs Mobile Squad No. 1, Peshawar Cantt. by Lt.‑Col. Mali Muhammad Aslam ADEME wherein it is stated that the weapons in question have been examined and found to be Darra made. This opinion of the Arms Expert was relied upon by the Customs Authorities in coming to the conclusion that the seized goods were not of foreign origin. The certificate issued by the Arms Expert (Maj. Daulat Ali) dated 4‑1‑1983E is also available on the departmental file as Annexure `N' and is to the effect "Certified that the weapons have personally been inspected the undersigned and appear to be manufactured by Darra Adam Khel." It is also clear that in the case in hand the prosecution has not produced any independent evidence to prove that the seized goods were of foreign origin. Even the seized cartridges stated to be of foreign make were not produced at the trial nor it was established that their value exceeded Rs. 10,000 as required by section 156(1)(89) of the Customs Act. Therefore, in view of the material available in the case and the fact that the opinion of the Arms Expert had gone against the prosecution in the adjudication proceedings, it becomes clear that there is no probability of the petitioners being convicted under the provisions of the Customs Act even if the remaining two witnesses were examined, by the prosecution.

4. For the aforesaid reasons, this revision is' accepted and by setting aside the impugned order of the trial Court dated 13‑4‑1986 the. petitioners are acquitted under section 265‑K, Cr. P. C. The petitioners are on bail, they stand discharged of the bail bonds. S. A Petitioners acquitted.