Appellant Mumtaz Hussain was tried by learned Special Judge (Customs and Taxation), Karachi for the offence under clause (8) of section 156(1) of the Customs Act, 1969, who convicted and sentenced him to suffer R.I. For sic months and to pay a fine of Rs.2,000 (Rupees two thousand) or in default to suffer R.I. For three months, vide judgment, dated 26-8-1981. The appellant seeks to challenge his conviction and sentence by this appeal.
2. The case of the prosecution as unfolded in F.I.R. Is that on 15-4-1979, at about 3-15 p.m. The appellant alongwith co-accused Muhammad Ayub, a Sepoy of Customs Department tried to smuggle some foreign origin goods by taking them out from protected area of Karachi Port Trust in a Mercedes Benz car owned by Mr. Muhammad Akmal, Assistant Collector, Customs. An attempt was made by the officials of Watch and Ward to stop the car, whereupon the appellant tried to slip away in the said car. The car was, however, chased and it was stopped. Appellant Mumtaz Hussain was apprehended, while co-accused Muhammad Ayub made good his escape. The car was searched and from its luggage compartment two stereo tape-recorders of Akai, one radio tape recorder of Sanyo, one Murphy electric iron, two pieces of woollen cloth and one juicer were recovered. The appellant was then handed over to Incharge T.P.X Police Station, where a case under section 379/411, P.P.C. Was registered against him and co---accused Muhammad Ayub. The investigation, however, revealed that the appellant had made an attempt to smuggle notified goods into Pakistan. He was, therefore, served with a notice under section 171 of the Customs Act, 1969, and after usual investigation was sent up before the Special Judge (Customs and Taxation), Karachi.
3. At the trial the prosecution has examined seven witnesses, who have fully implicated the appellant for the offence with which he is charged.
4. The appellant has disputed the case of the prosecution. According to him, there was a quarrel between co-accused Muhammad Ayub and the officials of Watch and Ward, in which he sustained injuries and went unconscious. He has examined three witnesses, namely Syed Aftab Ahmed (D.W.1), Rasheed Ahmad Qureshi (D.W.2) and Ajab Khan (D.W.3) in his defence.
5. I have heard Mr. Hassan Inamullah, learned counsel for appellant and Mr. Jalaluddin Baluch, learned counsel prosecuting the State.
6. There is satisfactory evidence on record connecting the appellant with this crime. Havaldar Khan Muhammad (P.W.2 has testified that on the relevant day he was on duty at Westwharf gate when lie noticed a car driven by the appellant approaching towards In gate. He tried to stop the car alongwith others, whereupon the appellant applied reverse gear and accelerated the speed. The car was chased and the members of Watch and Ward of Karachi Port Trust were successful in apprehending the present appellant, while co-accused Muhammad Ayub escaped. Akhtar-ul- Islam, Sub-inspector, Watch and Ward(P.W.3) Ghous Bux, Traffic Supervisor (P.W.4) and Muhammad Rafique (P.W.1 have c, also implicated the appellant. Muhammad Rafique (P.W.1) have also implicated the appellant. Muhammad Rafique, Fees Collector (P.W.1) issued Form `A' and sent the appellant alongwith the seized smu ggled goods to S.H.O., T.P.X Police Station.
7. The account of occurrence given by the above witnesses is consistent, and the learned counsel fur the appellant was not able to pick holes in their statements recorded on oath. They had absolutely no reason to depose falsely against the appellant who was apprehended red-handed while making an attempt to smuggle the above goods.
8. The evidence of [lie defence witnesses was considered by the learned Special Judge, who rejected the same for good reasons. I cannot do better than quoting last but one paragraph of the impugned judgment in extenso:- "The accused have adduced the evidence of D.Ws. Syed Aftab Ahmed, Rashid Ahmed and Ajab Khan obviously to support his defence plea but their evidence, in my opinion is not trustworthy and also dues not advance the plea of the accused. None of [lie D.Ws. Stated any thing with regard to [lie plea of the accused raised by him in the cross-examination that he had brought the goods to the gate as unclaimed property. On the other hand the two D.Ws. Syed Aftab and Rasheed Ahmed stated that no incident took place at the gate on 15-4-1979. They also did not state that the accused was attacked at Berth No.19 or at a distance of about one furlong from the gate as is stated by D.W. Ajab Khan. They also did not talk about subsequent false involvement of the accused. In fact it is not even the case of the accused that no incident took place on the alleged date. These two D.Ws. Have reasons to give obliging statements in favour of the accused. The two D.Ws. Are Customs Officers, while the accused is the driver of the A.C. Customs. It is, therefore, not unthinkable that they should have expressed their ignorance about the incident. The evidence of Ajab Khan also cannot be believed as his evidence also is not in consonance with the plea of the accused. In his statement the accused alleged that lie was assailed at Berth No.19 while the evidence of this D.W. Shows that the accused was standing at a distance of one furlong from the gate. This D.W. Stated that after the accused was confined in record room he had gone to Berth No.19. The accused in his statement alleged that the altercation or quarrel was between absconder accused Muhammad Ayub and K.P.T. Staff, but this witness stated that the quarrel was going on between the staff of Customs and the K.P.T. Employees. This D.W. Has also not given any satisfactory reason for his being at the time and place of incident. He had no work with his uncle Muhammad Azad. He could not go to any berth for private work yet lie claimed to have gone to Berth No.19. The evidence of this D.W., therefore, can conveniently be discarded."
9. Lastly it was contended that the charge framed against the appellant was defective which has caused serious prejudice to him. I must say with respect to the learned counsel that in spite of his most strenuous argument on this point, I failed to discover any plausibility fur the purpose of the present case. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. The charge framed against the appellant serves the required purpose.
10. I have carefully perused the record of this case and do not find grounds to interfere with the judgment of the learned Special Judge as far as conviction is concerned. The question of sentence has, however, engaged my anxious consideration. The incident took place on 15-4-1979 and the appellant has to suffer the ordeal of prosecution for a period of about ten years. According to Mr. Hassan Inamullah, the appellant has lost his job because of this case. In this view of the matter, Mr. Jalaluddin Baloch, learned counsel for the State has suggested a lenient punishment. I, therefore reduce the substantive sentence of imprisonment to that already undergone by the appellant. The sentence of fine and imprisonment in lieu thereof is maintained. The; appellant is allowed one month's time from the date of this judgment to deposit the fine before the trial Court, failing which he will have to suffer imprisonment in default of fine. With this modification in sentence the appeal is otherwise dismissed.
N.H.Q./M-763/K Order accordingly