IJAZ AHMAD CHAUDHARY, J.---Through this appeal the State through Collector Customs has called in question the judgment dated 29-10-2001 passed by the learned Special Judge Customs, Lahore through which he had acquitted the respondent from the charges under sections 156(1)8/14/70/139/178, 139,2(s) of the Customs Act, 1969 in case F.I.R. No. 56 registered at Police Station Railways Mughalpura, Lahore on 30-6-2000.
2. Precisely the facts originated in this case are that upon a spy information received by the Customs Department the respondent, who was proceeding to India was apprehended at 11-00 a.m.
On the fateful day, possessing gold and silver in a handbag at a time when he had already cleared the formalities of immigration and scanning, etc. An inquiry was made at the spot from the appellant to the effect whether any offending article was with him but the respondent replied in negative but upon a thorough search a handbag was recovered from him which he had tried to conceal from the official of Customs Department and it had been found that the bag in question had been containing 13 Tauveez of silver and 17 Karas of silver. The above said Tauveez were further opened and 12 biscuits of gold weighing 10 tolas each were recovered from 12 Tauveez whereas the 13th Taveez was having half biscuit of gold and a small piece of gold. The gold was separated and weighed and the same was found 122 tolas whereas the weight of silver was 4 kilogram. It was alleged that the respondent could not explain any valid reason for possessing such a huge quantity of gold and silver. He was served with notice under section 171 of the Customs Act, 1969 and booked in this case.
3. After registration of F.I.R. The investigation was conducted wherein the respondent was found guilty and, thus, report under section 173, Cr.P.C. Was prepared and submitted before the learned Customs Court. Charge was framed against the respondent to which he pleaded not guilty and claimed a trial: To prove its case the prosecution has examined as many as six witnesses. On the other hand statement of the respondent had been recorded under section 342, Cr.P.C. Wherein he had controverted all the allegations levelled against him and professed his innocence. The respondent had also examined nine witnesses in his defence. After concluding the trial the learned trial Court had found the case against the respondent to be false and, thus, it acquitted him as mentioned and detailed above. Hence, the present appeal against acquittal.
4. The learned counsel for the appellant/Customs Department has argued that the respondent was apprehended at the spot and a huge quantity if gold and silver has been recovered from him for which he could not produce any valid reason. Notice under section 171 of the Customs Act, 1969 has duly been served upon the respondent and after fulfilling he was booked into criminal case.
The prosecution was possessing sufficient evidence to prove the case against the respondent, thus, he was liable to be convicted for the offences alleged against him.
5. On the other hand it has been argued by the learned counsel for the respondent that the articles and the handbag from where the offending articles were recovered had not been produced before the learned trial Court which fact inflicts a fatal blow to the case of the prosecution. The respondent was not yet boarded in the train, the offence alleged against him was not stilled landed into the phase of completion, thus, and he could not be culpable against the offences alleged against him in the F.I.R. The story carved by the prosecution is unbelievable because a person cannot think commission of such offences especially when women folk are also accompanying him. The articles allegedly recovered, were wearing ornaments and not smuggled articles, thus, the same could not provide sufficient corroboration so as to warrant conviction to the respondent.
6. After hearing the learned counsel for the parties and going through the record of this case with their assistance I have observed that allegedly the respondent was apprehended by the Customs Department when he along with 19 other members of his family was proceedings to India for Ganga Yatra a religious ceremony. The articles taken into possession by the official of the Customs Department were, all wearing ornaments and there is no dispute about this fact. The only question in this case is that the said articles were allegedly recovered from the possession of the respondent which he tried to conceal in a handbag. A bare perusal of the judgment shows that there was a contradiction between the statements of P.W.2 and. P.W.3 in this regard as P.W.2 stated the colour of bag as black whereas P.W.3 had negated this fact. If the prosecution story is believed to the extent of recovering the articles from the handbag held by the respondent at the time of incident even then the argument of the learned counsel for the respondent to the effect that being an elder of his family members there is possibility that the respondent took the ornaments from his family members during travel to India so that the same can be delivered back after reaching the destination, carries some weight. Thus, the recovery effected from the respondent in this case does not provide support to the prosecution's case so as to warrant his conviction on this score alone.
7. The learned counsel for the respondent has laid down his great emphasis to the argument that if the whole articles were distributed among the family members of the respondent then the value of each article would become less than Rs. 50,000 which amount is exempted from any tax duty. The surrounding circumstances of this case also create an impression into the mina of this Court that the recovered golden and silver ornaments were not belonging to the respondent alone but the same were collected by him to keep them safe custody during the travelling so as to avoid any undue incident but he was not aware of the fact that his such action would create a great trouble for him. Thus, the reason advanced by the prosecution seems to this Court to be plausible and this Court has felt no ambiguity to hold that the prosecution has erred in putting the criminal law into motion and forcing the respondent to bear the agony and anguish of a protracted trial.
7.(sic.) It .Is also admitted at all hands that the appellant was accompanied with 19 other family members who were consisting of women, children and men as is evident from the document produced in this case by the defence in its evidence. It does not appeal to a prudent mind that a person will commit a crime like smuggling with his family members especially when the womenfolk is also observing travel with him. It has, thus, been found by this Court that a private tour by the respondent and his other family members for participating in some religion ceremony has been transformed into a criminal case by the officials of the Customs Department just to show efficiency on their part and in this way they have entangle not only an innocent person but also an innocent family in this case. It is intriguing to note here that due to this act of the Customs Department at one hand the respondent had been involved in this fake criminal case and on the other hand his other family members had also been stopped from proceeding to India. It is very unfortunate that the officials of Customs Department could not understand that the professional smuggler does not adopt such a simple way to smuggle offending articles.
8. In the circumstances mentioned above I have not found any illegality in the impugned judgment dated 29-10-2001 passed by the learned Special Judge, Customs Lahore so as to warrant an interference. The reasons recorded by the learned trial Court are such that any reasonable court could have arrived at the same upon a fair assessment of the evidence. This appeal is, therefore, dismissed.
9. It will not be good enough to point out here that the articles recovered in this case had been confiscated without any valid justification. The charge with which the respondent was constrained' to lace trial has already been disproved by the learned trial Court and this Court as well. Although there is no compensation of the detention of the respondent, his deprivation of observing religious ceremony and facing the rigors of trial yet the articles recovered in this case and confiscated by the State should have been given back to the respondent. The Collector Customs, Customs House, Lahore is, therefore, directed either to return the same articles recovered from the respondent in this case or to pay him the equivalent amount within a period of one month from today.