Saad Saood Jan J.-1. The appellant, Muhammad Khushnood (aged: 27 years) was convicted by the learned Special Judge (Customs), Lahore of an offence under section 156 (1) (89) of the Customs Act, 1969 and was sentenced to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 5,000/-; in default of payment of the fine he was directed to receive simple imprisonment for a further period of three months. The appellant has filed this appeal against his conviction and sentence.
2. It may be mentioned that initially one Abdul Baqi was also tried alongwith the appellant. He pleaded guilty whereupon he was convicted. In this appeal I am not concerned with his conviction.
3. On 5-5-1980 Mr. T. A. K. Chaudhry, Superintendent Intelligence and Investigation of the Customs Department, moved an application before the Duty Magistrate for issuance of a search warrant for searching the shop of the appellant on the ground that he had learnt that the appellant indulged in smuggling of watches, that he had received a consignment of smuggled watches two days earlier and that the said consignment was still lying in his shop. On the basis of this application Mr. Haider Mehdi (PW. 5) Duty Magistrate issued a search warrant directing Mr. T.A. K. Chaudhry and his staff to carry out the search. Armed with the warrant, Chaudhry Hamid Ahmad, Deputy Superintendent of the Customs Department, organized a raiding party and went to the shop of the appellant in Naulakha Bazar, Lahore. During the search 80 watches of foreign origin were found lying in a drawer of the counter at the shop. These were taken into possession by Ch. Hamid Ahmad (P.W. 6). The appellant was arrested and later challaned for an offence under section 156
(1) (89) of the Customs Act.
4. The appellant pleaded not guilty to the charge against him. He stated that the shop from where the watches were recovered belonged to his father and that he himself worked at another shop belonging to his uncle. He denied that he was present at the time of the raid. He disowned the watches and alleged that the owner of the contiguous shop who had enmity with his father was responsible for his implication in this case. He produced six witnesses in his denfence.
5. The allegation of the prosecution that the watches were recovered from the shop of the appellant finds support from the testimony of Ch. Ghulam Ahmad (P.W. 1), Inspector Amjad Butt (P.W. 2), S. I. Muhammad Bashir (P.W. 3) and Ch. Hamid Ahmad (P.W. 6). They were all members of the raiding party. Ch. Ghulam Ahmad (P.W. 1) and Ch. Hamid Ahmad (P.W. 6) were Duputy Superintendents and Amjad Butt (P.W. 2) was an Inspector in the Customs Department.
Muhammad Bashir (P.W. 3) was a Sub-Inspector posted in the local police station. They all stated that they had recovered 80 foreign watches from the shop of the appellant. It may be mentioned that two members of the public were also associated with the raiding party but they were not examined at the trial. However, I see no reason why the statements of Ch. Ghulam Ahmad (P.W. 1), Amjad Butt (P.W. 2), Ch. Hamid Ahmad (P.W. 6) and S.I. Muhammad Bashir (P.W. 3) should be disbelieved. They had no enmity with the appellant and they had no motive at all to falsely implicate him in a smuggling case. The allegation of the appellant that he had been falsely involved at the instance of a neighbouring watch-seller finds no support from the record. To begin with there is no satisfactory evidence showing that the said watch-seller had any enmity with the appellant or his father. It has also not been shown that the watch-seller had any links with the customs department.
6. The appellant examined his father Mahmood Hussain (D.W. 1) and his paternal uncle Muhammad Yasin (D.W. 3) to prove that the shop from where the watches were recovered was in fact run by his father and the appellant worked at another shop which belonged to his paternal uncle. He also examined Shafiq Sajjad (D.W. 4) who was a General Secretary of the Naulakha Bazar Anjuman Tajran to show that at the time of the raid he was not present at the shop of his father. I do not think that I can accept the statements of Mehmood-ul-Hussain (D.W. 1), Muhammad Yasin (D.W. 3) and Shafiq Sajjad (D.W. 4) in preference to the statements of the officers of the customs department. Mehmood-ul-Hussain (D.W. 1) and Muhammad Yasin (D.W. 3) are clearly interested witnesses being closely related to the appellant. I am also not prepared to accept the testimony of Shafiq Sajjad (D.W. 4) that the appellant was not present at the shop at the time of the raid in view of the clear statements to the contrary coming from responsible officials of the customs department.
7. In the search warrant the number of the shop of the appellant was described as bearing No. 16- A. The appellant examined Mehmood-ul- Hussain (D.W. 2) and Muhammad Iqbal (D.W. 5) to show that shop No. 16-A did not belong to the appellant. This may be so but in my opinion the inaccuracy in the search warrant with regard to the number borne by the shop of the appellant would not invalidate the search conducted in pursuance thereof. The warrant authorised search of the shop of the appellant in Naulakha Bazar. Lahore. The mere fact that the shop in fact bore No. 18 and 16-A as mentioned in the warrant would in the circumstances appear to be immaterial.
8. Shujaat Ali Bokhari (D.W. 6) stated that shop No. 18 was managed by the Evacuee Trust Board and that it had been let out to the father of the appellant. This may indeed be so, but considering the relationship between the tenant shown in the record of the Board and the appellant it cannot be said that the shop was not in fact being run by the appellant.
9. There were certain cuttings in the search warrant. It was contended that these cuttings were made after the warrant had been issued. The magistrate who signed the warrant was unable to say if these cuttings already existed when he signed the same. However that may be these cuttings are immaterial in so far as the appellant is concerned as they do not relate to him.
10. There is however a serious defect in the case against the appellant which makes it difficult for me to sustain the conviction of the appellant. It is to be noticed that a person found in possession of smuggled goods can be put on trial before a Special Judge under clause (89) of Section 156 (1) only if the value thereof exceeds Rs. 5,000/-. Although in the charge it was stated by the leamed Special Judge that the value of the watches recovered from the possession of the appellant was Rs. 23,000/- no evidence was led by the prosecution to support this part of the charge. In the circumstances it is merely guess work as to what was the value of these watches. Surely no conviction can be placed on mere guess work.
11. For the reasons stated above I am of the view that the conviction and sentence of the appellant for the offence under section 156 (1) (89) of the Customs Act cannot be sustained. Accordingly I accept this appeal, set-aside the conviction and sentence of the appellant and direct that he shall be acquitted. He is already on bail. His bail bonds shall stand discharged.