1. Appellant above named, being aggrieved by judgment dated 20th November, 1976 of the learned Special Judge- (Customs & Taxation), Karachi, in case No. 64/76, by which appellant has been convicted under section 156 (1) (89) of the Customs Act and sentenced to suffer R. I. For 2 years and to pay a fine of Rs. 10,000 or in default to suffer further R. I. For one year, has preferred the above appeal, on the following facts and grounds :- According to prosecution, on 29th May, 1975. Major Allah Nawaz of Pakistan Coast Guards deputed his staff Village Rehri and then he followed his staff by jeep to said village, with mashirs Muhammad Maroof and Mukhtar in consequence of an information received by him about smuggling of goods into Pakistan. Major Allah Nawaz and his party including two mashirs boarded a launch on reaching village Rehri and proceeded towards Pai Creek. After covering 6/7 miles, the party of Coast Guards headed by Major Allah Nawaz found some bags lying in an island, near which one "flora" was standing. On reaching shore of that island, which was covered with bushes, the party of- Coast Guards found 88 bags lying there in custody of a person, who disclosed his name as Mohsin. The party of Coast Guards secured and seized 88 bags, which contained silky nylon of China. The seized silky nylon weighed 4,068 pounds. The appellant was arrested and after preparation of mashirnama, the appellant was brought alongwith seized property to Headquarters of Pakistan Coast Guards, where Major Allah Nawaz lodged his F. I. R. The case was investigated by Naib-Subedar Qurban Hussain, who submitted the challan.
2. Charge Exh. 2 containing prosecution allegations was read over to the appellant, who pleaded not guilty.
3. Prosecution examined complainant Major Allah Nawaz Exh. 5 and P. Ws. Muhammad Maroof Exh. 3 and Qurban Hussain Exh.
7. Presecu--tion was closed under statement Exh. 8.
4. In his statement Exh. 9 the appellant admitted, that 88 bags of silky nylon were recovered from his possession. The appellant explained, that his boat was hired for transportation of $8 bags of silky nylon from Rehri to Pai Creek by one Tengo. The appellant took stand, that he did not know if the goods lying in 88 bags were smuggled goods. That he did not know as to who was the owner of said goods. The appellant added, that he was innocent, and he did not know origin of the. Goods recovered from his possession. He prayed for mercy.
5. In his defence, the appellant examined D. W. Muhammad Ishaq Exh. 10 and Umar Exh:
11. He closed his side under statement Exh. 12.
6. The learned trial court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as herein--before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. .
7. The learned Advocate for the appellant has sent an application for adjournment, but since this is an old appeal of 1976, 1 decided to hear the same on merits, with the assistance of the learned Advocate for the State, as he at the outset submitted; that he was not supporting the impugned judgment.
8. The learned Advocate for the State took me through theR & P of the learned trial Court and submitted that the appellant was admittedly only a carrier and in support of his version, he examined two respectable defence witnesses, who have fully corroborated 342, Cr. P. C. Statement the appellant, as well as by the statements of defence witnesses appellant has created doubt in the prosecution version of the story. The learned trial Court has rejected the statements of the defence witnesses, without cogent reasons merely on the ground that they appeared in court without summons. In view of this the learned Advocate for the Stall --submitted, that he was not supporting the impugned judgment, as there nothing on record to show, that the appellant had knowledge, that the goods to question were smuggled goods.
9. I have carefully considered the above submissions made by the learned Advocate for the State and have gone through the R & P of the learned trial Court as well as impugned judgment and the ground mentioned in the memo of appeal, filed by the appellant.
10. I find that appellant by examining two defence witnesses not only got his statement under section 342, Cr. P. C. Corroborated but in my opinion has succeeded in creating doubts in the prosecution version, against him.
11. P. W. 2 Major Allah Nawaz Khan in his statement admitted, that he did not pick any mashirs from Lathpasti and/or Rehri, though such mashirs were available. It may be noted, that no allegations were,;,, made by this P. W. That appellant tried to run away. On seeinG1" them.
12. P. W. 1 Maroof is alleged mashir. I have gone through his statement very carefully. His statement does not inspire confidence at all. He also admitted Hora was without machine and goods in question could not have: fitted in the said Hora.
13. Statement of appellant under section 342, Cr. P. C. Is straight forward; and convincing and is further fully corroborated by D. W. Muhammad Ishaq and Umar. It is also admitted position, that appellant is illiterate and as such could not read writings on bags. Appellant has established by his statement and statements of two D. Ws, that he was merely carrier hired for remuneration to bringing some bags, which he had no knowledge; contained smuggled goods. The learned trial court has given no cogent reasons for disbelieving two defence witnesses.
14. In my opinion, prosecution has failed to establish its case against the appellant beyond reasonable doubt.
15. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds