Appellants above-named being aggrieved by judgment dated 8th February, 1975, of the learned Special Judge (Customs & Taxation) Karachi, whereby the appellants were convicted under section 156 (8) of the Customs Act. 1969 and sentenced to suffer R.
1. For 5 years each and to pay a fine of Rs. 5,000 each or in default of payment of fine to suffer further R. I. For a period of 2 years each, have preferred the above appeal on the facts and grounds mentioned in memo. Of appeal.
2. On admission of the above appeal, appellants' application for suspension of their sentences was granted, vide order dated 25th February, 1975 and all the appellants were released on bail. The above appeal was filed by Mr. Hyder Raza Naqvi, Advocate under his own signature. The above appeal came up for hearing on 10th January 1979, 31st January, 1979, 21st February, 1979, 1st April, 1979, 29th September, 1979, 20th October, 1979, 8th December 1979 and 28th February, 1980 when neither appellants nor their Advocate appeared, in spite of notices sent directly to the appellants, who could not be served according to Bailiff's reports. However, on 18th March, 1980 appellant No. 7 was served and Mr. Shaukat Zubedi, Advocate appeared and filed power on his behalf. Thereafter, again the above appeal came up for regular hearing on 20tb May, 1980, 10th June, 1980, 22nd July, 1980, and 29th September, 1980, but neither appellants nor their counsel appeared. Again on 27th October, 1980, Mr. Shaukat Zubedi, Advocate appeared for appellant No, 7, but rest of the appellants and their counsel was absent and as such Court ordered issuance of notices to appellants and their sureties, except to appellant No. 7. The above appeal again came up for hearing on 7th November, 1980. 8th December, 1980, 2nd March, 1981, 30th March, 1981, 20th April, 1981, 1st June, 1981, 22nd June, 1981, 12th October, 1981, and 2nd November, 1981, but appellants and their counsels remained absent and as such I ordered issuance of notices to Mr. Hyder Raza, Advocate for appellants Nos. 1 to 7 as well as to appellants and their advocates available on file and consequently the above appeal again came up for hearing on 23rd November, 1981, before me, on which date Mr. Hyder Raza, Advocate for appellants appeared and stated, that after filing of above appeal, appellants failed to contact him and give him power and as such he does not appear on their behalf. According to Bailiff's reports none of the appellants are available at given addresses.
Therefore, I ordered notices to be issued to sureties to produce the appellants in Court, on the next date of hearing. The matter again came up for hearing on 25th January, 1982, 15th February, 1982, 18th March, 1982, 20th May, 1.982, On 20th May, 1982 process server informed the Court, that surety of the appellants was also not available at given addresses and, therefore, I proceeded to hear the above appeal and adjourn the same for further arguments of State Counsel to 24th May, 1982.
3. On 24th May, 1982, the learned counsel for the State took me through R & P of the learned--trial Court as well as impugned judgment and submitted -that, for the cogent reasons given in the impugned judgment, he supported the impugned judgment. Specially as all the appellants were arrested on spot. The learned State Counsel further submitted, that as appellants have become fugitives, their appeal could be dismissed in view of law laid down by the Hon'ble Supreme Court in 1981 SCMR 1.
4. I have carefully gone through R & P of the learned trial Court as well as through impugned judgment and considered the submissions made by the learned State counsel and have gone through the decision of Hon'ble Supreme Court hereinbefore mentioned.
5. The facts of the prosecution case briefly stated are that there was an spy information, that foreign cloth was being smuggled into Pakistan through launches. In pursuance of this information, patrol parties were datailed to comb the area. One party headed by Major Ghulam Hussain of the Pakistan Coast Guards, while patrolling creeks in an area about 10 mile East of Qassim Port, detected one launch, which was unloading cloth bales on the shore. One armed person was on guard at the launch. They were asked to surrender, but the armed guard at the launch opened fire on the Coast Guards party. There being no other alternative, complai--nant Major Ghulam Hussain also ordered his party to open fire, in self-defence. In the exchange of fire, one crew member of the launch was wounded, whereas the remaining were over powered. They disclosed their names as Pindu s/o Malan, Shambo s/o Maroof, Abbas s/o Hassan, Khair Muhammad s/o Nuru, Pasbo s/o Qaqwat, Maro s/o Malan and Allahdad s/o Wassan. Allahdad, who was armed with a gun was disarmecl and the gun seized from his possession. The launch Al-Noor was searched, which resulted in the recovery of 40 bales of foreign cloth, 10 of which were already unloaded and were lying on the shore, cycle, D/B gun and ammuni--tion etc. Which were seized, alongwith the launch Al-Noor. The injured person, whose name ultimately transpired to be Pathan succumbed to injuries.
The First Information Report was lodged by Major Ghulam Hussain of the Pakistan Coast Guards.
6. Captain Muhammad Mustafa of the Pakistan Coast Guards took up the investigation of the case on 14th May, 1974. On 15th May, 1974 he sent a letter to the City and Additional District Magistrate for holding judicial enquiry, under section 174/176 of the Criminal Procedure Code in respect of the death of a person above mentioned in the course of incident. He had sent the dead body for post- mortem examination to Police Surgeon. On 16th May, 1974, he recorded statements of all the appellants. On 17th May, 1974, he made the enquiry from Marine Department about ownership of the launch. The launch seized in the incident belonged to Muhammad s/o Mahmood, resident of Ration Shop No. 75, Jinnahabad, Karachi. It was transferred to Muhammad s/o Mahmood on 27th March, 1973. Previously it belonged to appellant Noor Muhammad son of Wasand care of Ration Shop No. 75, Jinnahabad, Karachi. This launch was registered in the name of Noor Muhammad son of Wasand on 30th July, 1971. He has produced letter from Marine Department, alongwith a copy of entry vide Exhs. 8-A and 8-B. On 23rd May, 1974 he got the state--ments of all the appellants, under section 164, Cr. P. C. Recorded from Addl. City Magistrate, Karachi. He recorded statements of witnesses on 23rd May, 1974. He sent up the appellants to the Court on 29th May, 1974.
7. The prosecution has examined the complainant Major Ghulam Hussain Exh. 2, Subedar Muhammad Akram Exh. 3, Qurban Hussain mashir Exh. 5, Mr. Muhammad Umer, Addl. City Magistrate, Karachi Exh. 6, Dawood Exh. 7, and Captain Muhammad Mustafa, the Investigating Officer Exh. 8.
8. According to appellant Pindu, he was Nakwa of fishing launch A1--Noor, which left the port under port clearance certificate issued by the competent authorities on 12th May, 1974 for Gora Bari, with a crew of 9 persons for fishing. It was permitted to remain on sea from 12th May, 1974 to 22nd May, 1974 for fishing purpose. According to him farther, when they reached the creek at a distance of about 20-25 miles from Post Qasim on 14th May, 1974, Coast Guards, who were standing in a land-- scape, made signs to call them there with a result, that they led their launch towards these Coast Guards, who asked them to load some bales lying there, but he refused to do so. The Coast Guards on their refusal threatened them and abruptly started firing on them, with the result, that one of their crew member had died of these shots and the other was missing, who might have jumped into the sea to save his life. The Coast Guards then got into the launch and arrested him and 6 others in the launch. According to him further, there were no smuggled cloth bales in the launch According to him the smuggled cloth bales were lying on land side of the creek and they wanted them to take them to the destination. According to him they might have seized the cloth bales earlier from some other launch and had foisted the same on him and the other members of the launch. He has denied the allegations of the prosecution version and has claimed to have been falsely implicated. According to him he made the judicial confession,, under the police coercion and torture.
9. Appellants Abbas, Maro, Pasho, Shambo, Khair Muhammad and Allahdad have also denied the allegations against them and have claimed to have been falsely implicated, on account of enmity.
According to appellant Allahdad, he was not arrested at the spot, but was arrested at Port Qasim.
According to him, the bales of cloth had been foisted on him. According to the rest of the appellants they were the members of the crew and were engaged for fishing in launch Al-Noor for 10 days from 12th May, 1974 to 22nd May, 1974, by Pindu, the co-appellant Nakwa of the launch and their version is the same as, that of appellant Pindu. According to them, they were arrested by the Pakistan Coast Guards in the circumstances above-mentioned and the bales of cloth were foisted on them. According to them, they made the judicial confessions, under coercion.
10. The appellants have examined Syed Mashkoor Ahmad, Preventive Officer of Customs Exh. 17 and Mahmood Shah Exh. 18 in their defence.
11. The learned trial Court taking into consideration the evidence adduced by the prosecution before it, while acquitting co-accused Noor Muhammad, convicted and sentenced all the appellants as hereinbefore mentioned and consequently the appellants filed the above appeal, on the grounds mentioned in memo. Of appeal.
12. The prosecution case against the appellants rests upon the oral testimony of P. W. Major Ghulam Hussain and P. W. Dawood and on recovery of foreign cloth, gun and ammunition, from the possession of the appellants and on the basis of judicial confessions of all appellants except Allahdad.
13. The learned trial Court rightly for cogent reasons given in its impugned judgment, discarded all the judicial confessions given by the appellants.
14. The learnd trial Court has believed the statements of P. Ws. Major Ghulam Hussain (Complainant) and P. W. Dawood after due appraisal of their evidence and that of defence witnesses. I have also gone through the statements of these two P. Ws. Whose statements are straightforward and convincing and were not shaken in their cross--examination at all. There is no specific enmity, alleged against these two witnesses, who have corroborated each other's statements.
15. The learned trial court for cogent reasons given in its impugned judgment has also relied upon recovery of cloth etc. From the possession of the appellants, after the appraisal of the evidence of P. W. Dawood and criticism levelled against this witness by learned advocates of the appellants. I see no reason to disagree with the conclusions and findings of the learned trial Court, on this issue of recovery at all.
16. Therefore, in my opinion, prosecution has proved its case against the present appellants, beyond reasonable doubt and as such I see no reason to disagree with the conclusions and findings of the learned trial Court, as given in the impugned judgment.
17. In view of my above conclusions and findings, I dismiss the above appeal and cancel the bail granted to all the appellants. I further direct the learned trial Court to issue non-bailable warrants for arrest of all the accused persons and on their arrest to remand them to judicial custody, to serve out remaining sentences awarded to each of them.
18. I further direct, that separate proceedings in accordance with law be taken against the sureties of the appellants, as all the appellants have jumped .The bail granted to them and have failed to appear before this Court.