This is an appeal preferred by Muhammad Sharif and Rahman Khan, appellants, from the judgment dated 20th December, 1980 passed by the Special Judge, Customs, Lahore, convicting the appellants under sections 156 (1) (8) read with section 178 of the Customs Act, 1969, and sentencing them to rigorous imprisonment for six years each and to a fine of Rs. 10,000 each or in default in payment of the same to further simple imprisonment for one year each.
The case against the appellants arises from the recovery from their possession of various items of cloth, stitched clothes, coconut; almond kernel and menthol, etc. Valued at Rs. 1,07,902. According to the prosecution, Major Rafaqat Ali, Wing Commander, Desert Rangers, Rahimyar Khan, received information on 27th January, 1979 at 3 p. m. That a party of smugglers was taking silk cloth, almond, etc. For smuggling the same to India by crossing the border near Ranger Port Tari Khan. He, therefore, organized a raiding party and proceeded in a jeep. They followed the tracks of a jeep until they reached Toba Mirzuwala -which is 7 kilometers this side of the Indo-Pak border. On search of the area they found at 5-30 p. m., bags lying in a grove of trees where two persons were present, one of whom was sleeping. The raiding party encircled and apprehended them with the goods at the spot. The persons apprehended, turned out to be the appellants. Memo. Of the recovery of the goods were prepared followed by an Incident Report on the basis of which a formal F. I. R. Was registered at Islamgarh Police Station.
3. The prosecution case was supported by Major Rafaqat Ali, Wing Commander, Desert Rangers, P.
W. 1, M. D. Rais, D. S. P., Desert Rangers, P. W. 2 and Muhammad 1kram, S. I., Desert Rangers, P. W.
3. All of them had been in the raiding party. A suggestion put to them that the case property except the tins of menthol had been recovered from the shop of Sharif and had been falsely planted on the appellants had been consistently denied by them. Muhammad Sharif, S. I. Desert Rangers, P. W. 4, had investigated the case and prepared the site plan. The appel--lants who had pleaded not guilty to the charge denied the allegations, disowned the case property and asserted that they had been arrested from their respective villages and falsely involved in the case. Phulan Khan, D. W. 1 and Muhammad Akbar. D. W. 2, stated that Rehman appellant had been taken away from his house and that they learnt the next day that he had been involved in a smuggling case. Similarly, Karam Ali D. W. 3, Ghulam Qadar, D. W. 4 and Allah Ditta, D. W. 5, stated that Sharif appellant had been taken by the Police from his house and had been falsely involved in the case though he was a man of good character and not a smuggler. The learned trial Judge believed the factum of the recovery of the goods from the possession of the appellants from a place in the border belt. He noted the inconsistency in the suggestions put by the appellants to the prosecution witnesses and the stand taken by them and held that the case of the prosecution was substantiated against both of them.
4. Mr. Zaheer Ahmad Khan, learned counsel for the appellants urged that there was no evidence that the goods were of foreign origin or that they had been meant for smuggling to India. He also pointed out that there was no basis furnished for the valuation of the goods at Rs. 1,07.902 and that the goods had not been produced in Court and identified by the witnesses. He submitted that although the occurrence had taken place on 27th January, 1979, the Incident Report (Exh. P. D.) had been prepared the next day and neither this document nor the recovery memo. (Exh. P. A.) incorporates the place and time where it had been prepared. Lastly he stressed the fact that no public witness had been associated in the recovery.
5. The entire part in the case for the prosecution was played by the Rangers Officials. They bad conducted the raid, effected the recovery and prepared and subscribes to the recovery memo and the site plan. They are also the only witnesses in the case. Major Rafaqat Ali P. W. 1 stated, '-No member from the public was joined in the raid proceedings." M. D. Rais P. W. 2 similarly stated, "No member of the public was joined in the raiding party." He had admitted. -1n our way to the place of occurrence there were many bastis. There were bastis up to I S miles from Rahirnyar Khan. No resident of those bastis was joined in the raiding party." No explanation was offered as to why public witnesses were not associated either from Rahimyar Khan or from one of the bastis on route.
It appears to me that the Rangers Officials did not appreciate the desirability of association public witnesses. But their omission to do so need not lead to the rejection of the prosecution case. For, there is no legal require--ment that public witnesses be associated in a case of the nature as the present one is. Nor is there any rule that the evidence of the Rangers Officials is inadmissible or must be disbelieved in the absence of corrobora--tion by a public witness. The raiding party was headed by a Major of the Rangers. Nothing has been brought out to show that he or any of other witnesses for the prosecution had any motive for falsely implicating the appellants.
6. The objection based on non-production of the case property during the trial is, however,not without force. The record does not show that the case property had been produced and identified by the witnesses in the presence of the appellants. In a case where the case property forms the A basis of the offence, the factum of recovery has to be proved beyond every reasonable doubt. But this cannot be said to have been done if the goods are not brought into evidence. In Budho v. The State (1973 P Cr. L J 395) it had been held.:- "...The prosecution was duty bound to produce before the Court the crime property and mark it as an exhibit or article so as to afford assurance to the Court that in fact the crime property, said to have been recovered from the possession of the appellant, was in fact so recovered. In the absence of doing so the conviction of the appellant is obviously vitiated."
Similar view had been taken in Khairuddin v. The State (1974 P Cr. L J 219) wherein it was observed :- "However, the fact still remains that no property whatever was pro--duced before the trial Court and as such, in my opinion, applicants are entitled to the benefit of doubt when the alleged stolen property said to have been recovered from the applicants has not been pro--duced before the trial Court."
However, I am not inclined to acquit the appellants for this omission on the part of the prosecution, for the situation calls for a retrial of the case.
7. I therefore, set aside the conviction Triad sentence of the appel--lants and remand the calve to the Court of the Special Judge, Customs, Lahore, for retrial.