' The appellants, Muhammad Nazir, Hira and Abdul Hamid, were convicted by the Special Judge (Customs) at Lahore of an offence under section 156(1) (89) of the Customs Act. For the said offence Muhammad Nazir was sentenced to suffer rigorous imprisonment for a period of five years while Hira and Abdul Hamid were sentenced to undergo rigorous imprisonment for a period of four years. In addition each of the appellants was directed to pay a fine of Rs, 5,000 or, in default of payment thereof, to receive rigorous imprisonment for a further period of one year. The appellants have filed this joint appeal against their convictions and sentences.
2. According to the prosecution on 8th August, 1972 Inspector Fazal-ur-Rehman (P. W. 4) of Chenab Rangers received information that some persons had smuggled into Pakistan a few bags of pan leaves and had concealed them in the sugarcane field of one Anwar in village Kotli Soodqan of Tehsil Narowal and that an attempt would be shortly made to remove the said bags. On receipt of this information he organized a raiding party and surrounded the field. At about 3-00 a. m. On 9th August 1972, a taxi approached the field. The three appellants came out of the taxi and went into the field. They carried two bags and placed them in the taxi. The appellants then re-entered the field and brought a third bag. As they were putting it in the taxi the raiding party surrounded and captured them. On search of the field four more bags were found lying in it. It may be mentioned that Hira was the driver of the taxi while Abdul Hamid was his associate. Subsequently, all the three appellants were challaned for an offence under section 156 (1) (89) of the Customs Act.
3. The appellants pleaded not guilty to the charge against them. Abdul Hamid denied all the allegations levelled against him and alleged that he had been falsely implicated on account of enmity with Fazal Dad (P. W. 3) who was a Sepoy in the Chenab Rangers. The story of Hira and Abdul Hamid was that their taxi had been hired by Nazir appellant for a visit to a village in Narowal.
As they had gone five-six miles ahead of Narowal their taxi was surrounded by the rangers and they were apprehended. They also alleged that nothing was recovered from the taxi. The appellants led five witnesses in their defence.
4. Before I proceed further I may mention that there is no evidence on the record which may indicate that prior to the night of their capture the appellants were ever in possession of the pan leaves. Assuming that the story of the prosecution is true, the fact that they knew that some bags containing pan leaves were lying in a sugarcane field can lead to two inferences : first the appellants had themselves placed the bags in the field or second, they had acquired knowledge from someone else about the presence of bags in the said field. Since the offence with which they are charged is a very serious one entailiing severe penalties it will be more safe to merely attribute knowledge and not possession to them prior to the night of the raid.
5. As already mentioned the appellants have been convicted for an offence under clause (89) of section 156 (1) of the Customs Act. At the time of the incident under consideration this clause read as follows :- "If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods :- Provided that if the smuggled goods be gold bullion or silver bullion the onus of proving the plea that such bullion was obtained by processing or other means employed in Pakistan and not by smuggling shall be upon the person taking that plea if the value of such goods does not exceed five thousand rupees, such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods ; and if the value of such goods exceeds five thousand rupees he shall further be liable upon conviction by a Magistrate to imprisonment for a term not exceeding six years and to fine not exceeding ten times the value of such goods and if the Magistrate in his discretion so orders also to whipping."
' It will be noticed that if the value of the smuggled goods does not exceed Rs, 5,000 the person involved in violation of the law is liable only to departmental penalties. The prosecution in a Court is to be launched only when the value of the smuggled goods exceeds Rs, 5,000. It may be mentioned that in this particular case the appellants have already been proceeded departmentally and some penalties have been imposed upon them. Learned counsel for the appellants has contended that even if the story of the prosecution with regard to the manner with which the appellants were arrested is accepted on its face the appellants were not liable to any prosecution as the value of the pan leaves allegedly recovered from their possession did not exceed Rs, 5,000. There is merit in this contention. It is to be noticed that the pan leaves recovered by the raiding party were auctioned by the customs authorities on the day immediately following the recovery. The price fetched was Rs, 600 only. Even if allowance be made for the deterioration that took place during the intervening period of 24 hours the value of the pan leaves at the time of recovery could hardly have exceeded Rs, 2,000 to Rs, 3,000.
6. A perusal of clause (89) ibid will indicate that for the prosecution of an offence thereunder the value of the smuggled goods'is an important consideration. During the course of the trial the prosecution led no evidence whatsoever with regard to the value of the pan leaves allegedly recovered from the possession of the appellants. It was only when the entire evidence for the prosecution and the defence had been adduced that the Court thought fit to examine a customs officer to give an opinion about the value of the pan leaves. The appellants were given no opportunity whatsoever to rebut that evidence. In fact they were not examined with regard to the evidence given by the Court witness. This was a material irregularity. In the circumstances the evidence given by the Court witness cannot be used again them.
7. For the reasons stated above as the value of the goods has not been satisfactorily established to be in excess of Rs, 5,000 the appellants could not be convicted for an offence under section 156 (1)
(89), of the Customs Act. Accordingly, I set aside their convictions and sentences and direct that they shall be acquitted. They are already on bail. Their bail bonds shall stand discharged.