The appellant, Muhammad Bashir was convicted by the Special Judge (Customs), Lahore, of an offence under section 156(1)(8) of the Customs .Act and was sentenced to suffer imprisonment for a period of six months and to pay a fine of Rs.2,000 in default of payment of the fine he was to receive rigorous imprisonment for a further period of three months. He has filed this appeal against his conviction and sentences.
2. Notice of this appeal was given to counsel for the appellant but he has not cared to appear. It has, therefore, been heard in his absence.
3. According to the prosecution on 17-8-1979, S.I. Shamim Akhtar of Sutlej rangers organized a picket at 7.00 p.m. Within the area of village Phatiwala at a distance of 1,000 ,yards from border pillar No. 163 on the Indo-Pakistan border. At 8.30 p.m., the appellant was seen coming from the direction of India. He had a bag on his head. The members of the picket party surrounded him and opened the bag. The bag contained 22 bottles of Indian liquor. On the incident report prepared by S.I. Shamim Akhtar a case under the Customs Act was registered against the appellant.
4. The appellant pleaded not guilty to the charge against him. He denied that he had smuggled any Indian liquor into Pakistan or that the bottles of liquor belonged to him. He stated that on the evening in question he was going to his sister's house with his nephew. On the way he met one Nasar who was serving in the field investigating unit Nasar had two donkeys with him. He put his nephew on the back of one of the donkeys. The donkey was loaded with a bag containing liquor.
When they reached near Phatiwala Nasar went to a shop to buy cigarettes. In the meantime a sepoy from the rangers came and seized bottles of liquor and apprehended him. Later, he was implicated in the case as his nephew was sitting on the very donkey which was carrying liquor. He produced two witnesses in his defence.
5. In support of its case the prosecution examined three members of picket. They were S.I. Shamim Akhtar (P.W. 2). Naik Lal Hussain (P.W. 3) and Sepoy Manzoor Hussain (P.W. 4). They were all serving in the Sutlej Rangers at the relevant time. They stated that as members of the picket party they had taken positions at a distance of 1,000 yards from border pillar No. 163. They saw the appellant coming from the direction of India with a bag on his head. He was asked to stop and the bag was opened. The bag contained 22 bottles of Indian liquor It is to be noticed that none of these witnesses was acquainted with the appellant prior to the incident in question and, as such, had no motive whatsoever to falsely implicate him in this case.
6. Of the two defence witnesses produced by the appellant Fazal Hussain (D.W. 1) was not present at the time when the appellant was caught by the picket and he is, therefore, not in a position to state from personal knowledge about the circumstances in which the appellant was arrested. The second defence witness, namely, Barkat Ali (D.W. 2) merely stated that he had seen the appellant going towards Kasur with a child and a girl and that at that time the appellant had nothing with him. It is difficult to accept the statement of this witness in view of the fact that members of the, 1licket party had no reasons whatsoever to perjure themselves against the appellant or foist bottles. Of Indian liquor on him when in fact they did not belong to him. I am, therefore, not prepared to accept the defence version.
7. For the reasons stated above I find that the appellant was in fact caught in the act of smuggling Indian liquor into Pakistan. He was, therefore, rightly convicted by the learned Special Judge of an offence under section 156(1)(8) of the Customs Act. The sentence of imprisonment awarded to him is short and no purpose will be served by sending him back to jail to serve it. I would, therefore, set- aside his sentence of imprisonment. The sentence of fine and the period of imprisonment indicated in default of payment thereof are however maintained. The appeal is disposed of accordingly.