The appellants, Muhammad Shafiq (aged 26 years), Gulzar Hussain (aged 30 years) and Khadim Hussain (aged 41 years), were convicted by the Special Judge (Customs), Lahore of an offence under section 156 (1) (8), read with section 178 of the Customs Act and were sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000 each; in default of payment of the fine they were to receive rigorous imprisonment for a further period of six months.
Muhammad Shafiq and Gulzar Hussain have preferred a joint appea4 (Crl. A. No. 485/C-79) while Khadim Hussain has filed a separate appeal (Crl. A. No.502/C-79) against their convictions and sentences. This judgment will dispose of both the appeals.
2. On 14-11-1977 a party of the Sutlej hangers organized a raiding party which took position on the Canal Bridge near Luliani on the Lahore-Kasur Road. At 3-30 p.m., a taxi-driven by Khadim Hussain appellant came there from Lahore and took a turn towards the canal road. The Nakabandi party stopped the taxi. On search of the luggage compartment of car one tin of Thiamine Hydrochloride and five tins of dry powder of vitamin acetate were recovered. On the incident-report prepared by Muhammad Gul (P.W.1), Deputy Superintendent, who was heading the Nakabandi party a case under section 156(1)(8)(9) of the Customs Act was registered against the appellants at Police Station Luliani.
3. The appellants pleaded not guilty to the charge of smuggling. They decried that they were caught in the act of smuggling chemical powders to India. They alleged that they had been falsely implicated. Muhammad Shafiq and Gulzar Hussain did not produce any evidence in their defence.
Khadim Hussain produced three witnesses in support of his version.
4. The case of the prosecution finds support from the testimony of Muhammad Gul (P.W.1), Deputy Superintendent, and Inspector Azeem Khan (P.W.2). Both these witnesses were serving in the Sutlej Rangers at the relevant time. They stated that they had taken position on the Canal Bridge near Luliani on the Lahore-Kasur road and that they had found the appellants coming in a taxi-driven by Khadim Hussain appellant. When the taxi turned from the main road in order to get on the canal road, they stopped the taxi. The search of the taxi revealed the presence of chemical powders. It is to be noticed that these witnesses had no enmity with the appellants whatsoever. In fact they were not acquainted with the appellants prior to the incident in question. There was thus no reason for them to perjure themselves against the appellants.
5. Khadim Hussain appellant was a taxi-driver. He stated that his co-accused had engaged him to take them from Lahore to go to Luliani and back. They got six tins of chemical powders from Luliani and when they were on their way back the Nakabandi party held them. Apart from the fact that Khadim Hussain was driving the taxi from which six tins containing chemical powders were recovered, the prosecution did not establish any link between him and the other appellants. There is nothing on the record which may indicate that Khadim Hussain knew about the contents of the tins which were placed in his taxi. The possibility, therefore, that he was unaware of the contents of the powder cannot be precluded. The place where the Nakabandi party held-up the taxi according to A.S.I. Muhammad Akram (P.W.4) was at a distance of about six miles from the Indo-Pakistan border. Considering that the main Lahore-Kasur road is a well-frequented A one and there are large number of villages between the. Indo-Pakistan border and the Canal Bridge the possibility that Khadim Hussain was not aware that his fares were intending to smuggle chemical powder to India cannot be precluded. I would accordingly give him the benefit of doubt, set aside his conviction and sentence and direct that he be acquitted of the charge against him. He is on bail.
His bail bonds shall stand discharged. .
6. Muhammad Shafiq and Gulzar Hussain are residents of Lahore as would appear from the addresses which they themselves gave at the time when they were examined under section 342 of the Code of Criminal Procedure. They have not given any satisfactory explanation for their presence with tins of chemical powders at the place where they were held up. Luliani is a smallish town. It is not a place where chemical powders can be bought cheaply as compared to Lahore. It is, therefore, hardly a place where the appellants would be visiting to procure chemical powders. I can also take judicial notice of the fact that at the relevant time there were many cases of smuggling to India of the chemical powders of the nature recovered from the possession of the appellants. In the circumstances it is reasonable to infer that they intended to smuggle the said powders to India. Thus their conviction under section 156 (1) (8), read with section 178, of the Customs Act was rightly recorded by the learned Special Judge.
7. Learned counsel for Muhammad Shafiq and Gulzar Hussain stated that as the prosecution had failed to prove that immediately after the) seizure of the chemical powders the said appellant, were given any, notice under section 171 of the Customs Act their convictions of the) charge of smuggling was bad in law. I am afraid I cannot accept this contention. D.S.P. Muhammad Gul (P.W.1) was not cross-examined by the defence on the point whether he had served upon the appellants C any notice under section 171 ibid. Thus, at the trial the appellants did not lay the foundation for the objection which they have raised before me. I must, therefore, repel their contention in. This regard for there is no requirement of law that even in cases when the defence has not cared to raise the issue of non-service of a notice under section 171 of the Customs Act at the trial, the prosecution is under an obligation to prove the factum of service of notice.
8. The question of sentence however requires re-consideration. Although the prosecution asserted that the value of the chemical powders) was Rs.35,000 yet it did not produce any expert evidence in this regard. On the other hand the defence examined the Valuation Officer from the Customs House. He stated that the value of the chemical Powders was Rs.1,561.61. For obvious reasons I would accept the estimate given by this witness. The incident took place more than eight years ago.
Considering the value of the property involved I do not think it will be appropriate to send Muhammad Shafiq and Gulzar Hussain back) to jail to undergo the un expired portion of their substantive sentences of imprisonment. I would accordingly reduce the substantive sentences to the periods already undergone by them. The sentences of fine and the term of imprisonment in default of payment of fines as awarded by the learned Special Judge are however maintained.
9. As a consequence Criminal Appeal No.502/C of 1979 filed by Khadim Hussain is accepted while Criminal Appeal No.485/C of 1979 preferred by Muhammad Shafiq and Gulzar Hussain is partly accepted.