1. ' The appellants have challenged their conviction and sentence awarded by the Special Judge (Taxation and Customs) Karachi, u/s. 167, clause (8) of Sea Customs Act. The learned Judge sentenced the appellants to undergo R.I. For two years and pay a fine of Rs,10,000/- each or in default of payment of fine to suffer further R.I. For one year. The appellants were tried for the offences u/s. 167, clause (8) of Sea Customs Act alongwith 5 others but two of the accused persons namely Haji Bacho s/o Siddiq and Muhammad Hafiz son of Hai Barkat, died during the proceedings while Haji Wall Muhammad, Abdur Rehman and Gui Muhammad were acquitted in the case by the learned Judge.
2. ' According to the case of prosecution, Customs Authorities had received information in May, 1967 that accused Wall Muhammad, Gulloo, Bachayo and .Others had imported huge quantity of contraband gold in Pakistan which was likely to be discharged somewhere in the creek along the Karachi Sea Coast. On this information the Customs Officer altered Coast Guards and kept strict watch on the suspected region as well as on the movements of above -named persons. As a sequel to above a Customs party led by SPO A.R. Khan chased a jeep bearing No, KAF 852 on the night of 18/19th May, 1967 and reached 'Sunoil jetty at about 2 a.m. Accused Wali Muhammad and Bachayo who were in that jeep, jumped out of it and managed to escape in darkness while driver of the jeep was hauled up by the Customs party alongwith the jeep. The Customs party then interrogated several fishermen of the area and came to know through Ahmed and Yakoob that a launch had brought gold but sensing some danger they dumped the gold in sea about 4 miles away from 'Sunoil' jetty. The above facts are recorded in the FIR lodged by SPO A.R. Khan on 29-5-67 at 10 a.m. The Customs Authorities on the above information cordoned off the entire area and between the period from 30-5-1967 to 10-6-1967 recovered from seabed 56,970 tolas of gold while another quantity of 2,110 toles of gold was recovered from the nearby bushes.
3. It is quite clear from the above-stated facts that the names of the present appellants did not appear in the FIR. They were arrested on 8-6-1987 and before their arrest a sizable quantity of gold was already recovered from the seabed by the Customs Authorities between 30-5-1967 to 7-6- 1967. There is no direct evidence in the case against these appellants that they smuggled gold in Pakistan The pieces of evidence relied by the prosecution and referred by :ne learned trial Court in support of the conviction of appellants consisted of their alleged confessional statements, ocular evidence of two Mashirs and the circumstantial evidence namely recovery of gold on the alleged pointation of the appellants. The confessional statements of the accused which were allegedly recorded before a magistrate on 23-6-1967 were retracted at the trial. These confessional statements have no evidentiary value as they were recorded after about 15 days of the arrest of the appellants and prosecution failed to offer any explanation for this inordinate delay in recording their confessional statement. In the case of Tooh v. State 1975 P Cr. L J 440 a Division Bench of this Court ruled out of consideration a confessional statement on ground that normally even a delay of 24 hours would be fatal to the acceptance of a judicial confession.
4. ' The second piece of evidence in the case against the appellants relied by the learned trial Judge is the oral evidence. The learned Judge while discussing the oral evidence against the accused/appellants, observed as follows at page 483 of the paper book:- ' "Now I proceed to deal with the oral evidence. There are two eye-witnesses to incident who saw the accused actually committing the offence. The prosecution witnesses also depose as to certain recoveries made on the pointation of accused Urs and Jaffer and also about the movements and circumstances connecting the accused with the commission of offence."
5. The learned counsel for the State ,was unable to point out any single prosecution witness who claimed to have seen the appellant committing the offence. On the contrary it is an admitted position in the case that no one even witnessed the dumping of gold in the sea. PW Juma (Ex.3) and Usman (Ex.7) referred by the trial Judge, in their evidence stated that in the month of May 1967 while they were fishing at Pitiani Creek before sunset they saw the appellants in a small boat alongwith 2 others approaching a launch which was anchored there and they started loading some goods from the launch in their boat and then sailed away. These witnesses nowhere stated that the goods loaded by the appellants from the launch on their boat was gold. The other two witnesses namely, Hussain apd Ahmed examined by the prosecution who were also mashirs, categorically stated that on the night the incident allegedly took place it was dark and they, could not see anything except hearing noise of gunshot and dumping of something in the sea. These witnesses also stated before the Court that the appellants were brought by the Customs party alongwith them and therefore, the identification of the appellants by these witnesses in Court was of no significance at all. The other ocular evidence in the case produced by the prosecution consisted of Preventive Officer Shafqat Ahmed, Ex.2, Jumo Ex.3, Preventive Officer Abdullah Khan Ex.6, Usman Ex.7, Yousuf Ex.8, Hafizur Rehman Ex.9, Abdul Khaliq, Ex.10, ASI Muhammad Hussain Ex.11, Preventive Officer Ejazur Rehman Ex.12, Behram Khan Ex.13, Muhammad Ex.14, Inspector Khurshid Ali Khan Ex.15, ACM Soreas Ex.16, Law Officer of Customs, A.R. Khan Ex.17 and Abdul Rauf Ex.18. None of these witnesses claimed to have seen the appellants smuggling the gold or dumpting, it in the sea.
6. It is, therefore, quite clear that there was no ocular testimony available in the case against the present appellants to connect them directly with the offences and as such the above-quoted observation of the trial Judge that there are two eye-witnesses to incident who saw the accused actually committing the offence is obviously based on misreading of evidence. The only other piece of circumstantial evidence relied by the learned trial Judge against the accused is the alleged recovery of jackets of gold at the instance of the present appellants. It is significant that the recovery of the gold by the Customs Authorities was spread over a period of 12 days in presence of large number of fishermen and Customs officials and it' was only on one such occasion that these three accused were brought by the Customs people. Although the two mashirs Hussain and Ahmad examined by the prosecution had stated in their evidence before the trial Judge that some of the jackets of gold were recovered at the instance of the appellants but this piece of evidence alone was not sufficient to sustain the conviction of appellants in the circumstances of the case as it is an admitted position that the initial recovery of gold was made by the Customs Officer on, the pointation of two prosecution witnesses who also acted as Mashirs, namely, Hussain and Ahmed (Exs.4 & 5) and as such the case of appellants was at par with these two witnesses and in the absence of any other corroborative evidence to the effect that the gold was concealed by the appellants in the seabed they could not be held guilty of any offence. I am, therefore, of the view that the case against the appellants could not be established beyond reasonable doubt. I accordingly accept this appeal, set aside the convictions and sentences of the appellants. The appellants are on bail, their bail bonds arel cancelled.