SAJJAD ALI SHAH, J.-- 1. This appeal is filed against the impugned judgment, dated 26-8-1978 of learned Special Judge (Customs and Taxation) whereby both the appellants have been convicted for offence under section 156 (1) (89) of the Customs Act and sentenced till the rising of the Court and fine of Rs. 5,000 each in default of the payment whereof further sentenced to R. I. For six months.
2. Briefly stated the relevant facts are that on 25-7-1977 at 2-30 p. m. Raiding party from the Coast Guard near Haroon Building Dharam- shala Street Keamari apprehended appellant Iqbal while the other appellant Muhammad made good his escape, lt is alleged that appellant Muhammad had come in his care to the shop of appellant Iqbal and both these appellants had put in the dicky of car four bundles containing 90 cartons of foreign cigarettes. Mashirnama was prepared at the spot and after completion of necessary steps of investigation challan was presented in the Court.
Appellant Muhammad surrendered and was granted bail before arrest.
3. Prosecution has' examined P.W. ,1 Nisar Hussain, who is Mashir, P. W. Hafeezullah, who is Principal Appraiser in Customs and has given the valuation of the stock of cigarettes seized in this case. P.W.
3 is Subedar Raza Muhammad, P. W. 4 is Naek Karamdad and P. W. 5 is Captain Iftikhar. P. Ws. 3 to 5 are members of the raiding party from the Coast Guard. P. W. 5 filed F.I.R, at 4-30 P. M. On the same day.
4. Appellants did not plead guilty and-examined three defence witnesses, namely, D.W. 1 Muhammad Shoaib, D.W. 2 Noor Muhammad and D.W. 3 Zunda Khan.
5. Azizullah Shaikh, Advocate for the appellant, has submitted that evidence brought on the record has been misread and the finding'' of the trial court is inconsistent with the evidence and no case is made out. It appears from the record that 90 cartons of foreign cigarettes seized vide Mashirnama Exh. 4-A, were not produced in the Court as case property. Captain Iftikhar P. W. 5 has deposed before the trial Court that out of the stock of 90 cartons of foreign cigarettes only three cartons and ten packets were produced in the Court and the rest were disposed of. Mr. Azizullah Shaikh has further pointed out that according to F.I.R, originally 92 cartons were seized but in the Mashirnama 90 cartons and 20 packets have been shown. In any case non-production of property in the court is a very serious lapse on the part of the prosecution which is inexcusable and knocks the bottom out of the prosecution case. If the case property is not produced the whole prosecution case is blown to smithereens. The trial court has taken the line of the reasoning that non-production of the property is not fatal, that there are admissions made by the appellants that the cigarettes were recovered from their possession. No such impression can be gathered if the statement of the appellant Iqbal recorded under section 342, Cr.P.C, is closely scrutinized. Appellant Iqbal has very clearly denied in his statement have supplied cigarettes to Muhammad but stated that the cigarettes were lying on the seat of the car from where the same were secured by the Captain. He has further stated that he was called by appellant' Muhammad and requested to push the car which was not starting and he pushed the car and in the meantime the raiding party came. He denies having any other nexus with appellant Muhammad in this context. Appellant Muhammad on 11kv other hand has stated in his statement under section 342, Cr.P.C, that he ran away from this part when the raiding party came and the cigarettes were lying on the seat of the car. He does not say that he had acquired the possession of the cigarettes from appellant Iqbal but has categorically stated that he purchased them from passengers. Appellant Iqbal has produced D.W.
Muhammad Shoaib who has stated that he is a photographer and saw Iqbal, pushing the car on the day of incident and then the raiding party came. Appellant Mohammad has examined two defence witnesses, Zunde Khan D.W. 3 has deposed that on the day of incident appellant Mohammad asked him to push the car and while he was doing so the raiding party came. D.W.
Noor Mohammad had deposed that he is a Hawker of fish and saw Coast Guards people securing cigarettes from the car on the day of incident. He did not know to whom the car belonged. He further stated that he used to see Iqbal purchase cigarettes from seamen and he used to write their numbers. So far appellant Mohammad is concerned his plea is that he purchased the cigarettes from the passengers and according to the baggage rules every passenger was supposed to bring in two cartons of cigarettes. He has further stated in his written statement that he took such plea in the adjudication proceedings before the Customs Authorities. Mashir Nisar Hussain has deposed before the trial court that he is illiterate and does not know the brands of the cigarettes. One brand from the remaining case property which was produced in the Court was shown to him and he could not identify the same. He said that at the time of seizure there were cigarettes of various brands including one carton of 553. In any case the evidence of this Mashir is not of much use to the prosecution particularly when the case property has not been produced and only three cartons have been produced from 92 or 90 cartons alleged to have been seized. On this ground also the prosecution has failed tp prove its case.
5-A. Another point aruged by Mr. Azizullah K. Shaikh is that the prosecution case suffers from another legal infirmity because mandatory provisions of section 171 of Customs Act have not been complied with and notice under that section was not served at the time when the alleged seizure was made and appellant Iqbal was arrested. The requirement under section 171 of the Customs Act is that the appellant so arrested had to be informed in writing. No such notice was served. There is no evidence on the record that such notice was served. He had cited the case of Azizullah v. The State PLD 1981 Kar. 250 in which it is held that if the mandatory notice is not served the arrest of accused and seizure of goods are illegal.
6. For the facts and reasons stated above impugned judgment is hereby set aside and the appellants are acquitted. Appeal is allowed. Fine if paid may be refunded.