JUDGMENT INAYAT ELAHI KHAN, J.---1. Nadir Khan and two others (appellants) were convicted by the learned Special Judge Customs, Peshawar under section 156(1)(89) read with section 178 of the Customs Act, 1969 on 12th September, 1985 and sentenced to two years' R.I. With a fine of Rs.1,0,000 each or in default thereof to further R.I. For one year. The appellants, feeling aggrieved, have come in appeal.
2. The prosecution case as disclosed in the statement of Haji Mir Ahmad (P.W. 2) who was posted as Deputy Superintendent Customs, at the relevant time, is that on 10th April, 1982 truck No. PR-7649 was intercepted on G.T. Road by the Customs Mobile Squad, Nowshera. The truck was taken to the Customs Office at Nowshera and from the cavits made on the back of the driver's seat and from beneath the quantity of Pakistan paper with which the truck was apparently loaded, spare parts allegedly of foreign origin were recovered vide recovery memo. Exh. P.W, 2/1. The appellants were arrested and the spare parts were seized. They were also served with a notice under section 171 of the Customs Act, 1969. A Murasila Exh. P.W. 2/6 was then forwarded to the Police Station, Nowshera Cantt, where the present case was registered Vide F.I.R, copy Exh. P.W. 2/7 against the appellants. He further stated that out of the seized goods mentioned in the recovery memo. P.W. 2/1, only item No. 2 (340 NGK spark plugs made in Japan) was a notified item. The truck was driven by Nadir Khan appellant whereas Rahimullah and Ghulam Muhammad appellants accompanied him as cleaner and the owner of the truck respectively. They were proceedings from Charsadda to Lahore. The market value of the seized goods was assessed by him at Rs. 1,00,000 but the market value of each item of the seized goods has not been mentioned separately in the recovery memo. Exh. P.W. 2/1. He state that the case property was not available in Court when his statement was being recorded as a witness. Said Zaboor, Hawaldar Customs (P.W. 1) also deposed about the recovers of the seized goods from the truck in question in his presence and stated that truck was driven by Nadir Khan appellant and the other appellants accompanied him, one of whom was cleaner and the other was the owner of the truck. He admitted as correct that spare parts of foreign origin are available in Shoba Bazar, Peshawar. The evidence of Hamidullah Jan, Customise Inspector (P.W. 3) is to the same effect about the recovery of the seized goods from the truck in question. He is also a- marginal witness to the recovery memo. Exh. P.W. 2/1. He stated that the case property was not before him when he was being examined as a witness and denied the suggestion that the seized spare parts were made in Pakistan Abdul Rehman, Customs Inspector, Incharge Customs State Warehouse (P.W. 4) produced the stock register (copy of the extract Exh.
P.W. 4/1) and stated that the items mentioned at serial Nos. 1 to 4 have since been auctioned on 7th July, 1982 and 12th June, 1982 and the seized paper was released to one Nawab Khan C/o Bazi Goods Forwarding Agency, Charsadda. That .The amount for which the aforesaid goods were auctioned has not been mentioned in the stock register nor the name of the country of origin of the goods has been mentioned therein.
3. Nadir Khan appellant when examined under section 342, Cr.P.C., stated that the seized goods were recovered from the truck in his presence which was driven by him. However, he had no knowledge that the truck was loaded with goods of foreign origin because it was loaded with paper. Nawab Khan had brought the truck fully loaded to his house which is situated six miles away from the Charsadda Paper Mills. He further stated that co- accused accompanied him and they had produced a 'bilty' to the Customs officials in respect of the paper which was being transported from Charsadda to Lahore. Rahimullah appellant took the plea that he was not the cleaner of the truck and .Accompanied Nadir Khan, his cousin, in the truck to Lahore. He stated that the seized goods were recovered from the truck in question but he had no knowledge that the truck was loaded with foreign goods. Ghulam Muhammad appellant stated that he was accompanying the truck when it was stopped by the Customs officials. However, nothing was recovered from the truck in his presence. He stated that the truck was being driven by Nadir Khan appellant and Rahimullah appellant accompanied him as a guest.
4. In support of the appeal it is contended that it has not been proved by the prosecution that the goods in question fell within the definition of 'smuggled1 goods, given in section 2(s) of the Customs Act, 1969, as it stood at the relevant time, whereunder it was essential to prove that the value of the smuggled goods exceeded one thousand rupees and only then the appellants could be held responsible for possession thereof under section 136(1)(89) of the Act as substituted by the Prevention of Smuggling Act, 1977 (Act XII of 1977), which was applicable and provided punishment for possession of the smuggled goods. The contention is that at the relevant time for making the offence punishable under section 136(1 )(89) of the Act, it was essential to prove that the seized goods were covered by the definition of 'smuggled' goods as then given in section 2(s) of the Act and since there was no convincing evidence that the market value of the notified item (spark plugs) was in excess of rupees one thousand, the conviction of the appellants has been illegally recorded. The learned counsel for the State referred to the statement of Haji Mir Ahmad, the then Deputy Superintendent Customs (P.W.2) and contended that from his evidence it was fully established that the market value of the seized goods was Rs. 1,131, SDO (Rupees one lac). It may, however, be mentioned that out of the seized goods only, item No. 2 (spark plugs) was a notified item and the said witness was again examined in this Court regarding the market value of the item in question. He stated that the value of all the items recovered from the truck was calculated at Rs.
1,00,000 (Rupees one lac) as mentioned in the copy of the first information report and item No. 5 i.e. Pak. Paper (white) 819 reams was returned to the accused-petitioners subsequently by the Department. That the value was assessed by him after verifying the price from the market and he did not assess the value of item No. 2 separately which was a notified item. He could not give even now the market value of item No. 2 as he had no record in his possession. He stated that the goods mentioned at item No. 2 were later on auctioned but could not say about the price it fetched because the auction of all the items was conducted jointly and in his absence. That after the recovery of the-.Seized goods and before sending the Murasila to the Police Station neither he nor any member of the staff did leave the office. He could not give the name of any shopkeeper from whom the rates of the seized goods were verified. He stated that the rates were not obtained by him in writing nor did he verify the rates from the Shoba Bazar, Peshawar which is a market place.
Here it may be mentioned that said Zaboor, Hawaldar (P.W. 1) has stated that .'it is correct that the spare parts of the foreign origin are available in Shoba Bazar, Peshawar.' In these circumstances and in the absence of any other evidence bout the market value of the item in question no implicit reliance could be placed on the testimony of Haji Mir Ahmad (P.W. 2). Particularly, when the value of all the items mentioned in the recovery memo, including the Pakistan paper (white) 819 reams was assessed jointly and the market value A of the goods at item No. 2 (spark plugs) was not separately ascertained It is not the prosecution case that the market value of the notified item was got appraised from open market or through an appraiser or a valuer. The other contention on behalf of the appellants is also not without force that the seized goods were not produced at the trial to ascertain as to whether they were in fact of foreign origin. In 1985 P.Cr.L.J. 286 = PTCL 1985 CL. 47 it was held that where the B entire case property is not produced at the trial, the evidence of the recovery witnesses is of no avail to the prosecution It is not disputed by the State's counsel that the seized goods were not produced at the trial as they had been disposed of previously.
5. For the aforesaid reasons, the prosecution has failed to prove this case beyond any shadow of reasonable doubt. The appeal is, therefore, accepted and by setting the order of the Special Judge Customs, dated 12th September, 1985 the appellants are acquitted of the charge. They also stand discharged of the bail bonds submitted in this Court.