Musa Khan, appellant, has preferred this appeal from his conviction and the sentence of R. I. For three months recorded by the Special Judge, Customs, Lahore, under section 156 (1) 89 of the Customs Act, 1969.
2. The case arose from recovery of certain quantity of cloth including some of foreign origin from car No. A J K/7201, parked on the road in Satellite Town, Sargodha, in the course of a raid conducted by the police. The cloth consisted of three bundles containing pieces of varying lengths-marked Exh. P. 1 to P. 56, of which cloth Exh. P. 1 to P. 52 was found by the Customs Authorities to be of foreign origin, while the remaining i.e. Exh. P. 53 to P. 56 measuring 223 yards, of local manufacture. The three occupants of the car, namely, Sardar Khan, Mst. Iqbal Bibi and appellant Musa Khan were prosecuted. Sardar Khan absconded during the trial and was proceeded against under section 512, Cr. P. C., while Mst. Iqbal Bibi was acquitted under section 265-K, Cr. P. C.
3. The prosecution had examined the two recovery witnesses, Murad (P. W. 1), and Chan Pir Shah (P.
W. 2), Sajjad Reza A. S.
1. (P. W. 6) and Fayyaz Akhtar Customs Inspector (P. W. 5). Two other witnesses, namely, Ghulam Farid F. C. (P. W. 3), who had recorded the F. I. R., and Malik Muhammad Nawaz, Director F. I. A. (P. W.
4) who proved the complaint, were formal ones. Fayyaz Akhtar (P. W. 5) was recalled and examined again as C. W.
4. The appellant admitted that the police had raided his premises and seized cloth, but denied that the cloth which was the case-property had been the one recovered from him. His version was :- "During the days of incident I used to sell Pakistani cloth. I was residing in the house belonging to Janat Bibi in Satellite Town, Sargodha. The police came and they raided my premises and dragged me out. I told them that I deal in Pakistani cloth and produced Pakistani cloth whatever was with me. The police party took away that cloth and planted some other cloth which belonged to some one else and falsely implicated in this case."
He alleged that the witnesses had deposed at the instance of the prosecution and due to misunderstanding, He examined two witnesses in his defence, namely; Muza Khan (D. W. 1) and Haji Sardar (D. W. 2), who simply stated that the appellant was a gentleman and did not deal in smuggled cloth: They both admitted that they had not been.Present at the time of the recovery.
5. The Tribunal found him guilty and considering the fact that the trial had protracted and he was of old age, awarded the penalty of R. I. For three months only..
6. On going through the evidence, I find that the recovery is supported by both the recovery witnesses, namely, Murad (P. W. 1) an Chan Pir Shah (P. W. 2) and by A. S. I. Sajjad Raza (P. W. 6).
However, I see no reason to rely on the testimony of Murad. In the first instance, admittedly his house was forty miles away from the scene and he had no explained his Presence. Worse than that, he had stated "This is correct that I have contacts with the police and generally appear as a prosecution witness in police cases." He is, therefore, not only a chance witness but also a stock- witness of the police and as such deserves no credibility. The other recovery witness, namely, Chan Pir Shah also does not belong to the locality. According. To Murad, he lived at a distance of twenty mile from the scene, but Chan Pir Shah explained that he had come to see on Syed Muhammad Shah a relation of his, who resided in Satellite Town, A Sargodah. Since the recovery had been effected from the main road, he cannot be called a chance witness. He also denied that he was already known to the police or that he was deposing at their instance. There is, therefore, nothing 'to affect the credibility of this witness. The evidence of Fayyaz Akhtar P. W. 5 and C. W., is clear that the cloth other tha Exh. P. 53 to P. 56 was of foreign origin and valued at Rs. 6,564. .The defence plea or its evidence does not affect the prosecution case which stands proved. The punishment awarded is already lenient and calls fo no interference.
7. In the result, the appeal is dismissed. Bail allowed to th appellant is cancelled. He shall be taken into custody and lodged in prison to serve out his sentence.