' The appellants Mustakeem Khan son of Zar Khan, Sabaz Ali son of Khan Muhammad and Sabaz Ali son of Sher All have filed the present appeal under section 185-F of the Customs Act, 1969, against the judgment dated 23rd November, 1980 of the learned Special Judge, Customs and Taxation, Lahore Camp at Rawalpindi, whereby he convicted the appellants under section 156(1)89 read with section 178 of the Customs Act, 1%9 and sentenced them to six months' R.I. With a fine of Rs,500 each or in default of payment of fine to undergo S.I. For one month each.
2. Brief facts giving rise to the present appeal are that on a secret information received by Sangjani Police, Niaz Muhammad S.I. (P.W.4) went to the graveyard of Tarnol and recovered butternuts, foreign toys and electric bulbs, valuing Rs,14,070 for which the appellants could not satisfactorily account for.
' After completing the legal formalities, the said police officer submitted the challan in the Court of the learned Special Judge, who vide order referred above, convicted the appellants, as aforesaid.
3. The prosecution in order to prove its case, examined three witnesses, apart from Muhammad Zahid Khan who was examined as C.W. Nazir Ahmad Head Constable (P.W.2) supported the factum of recovery and stated that the appellants were apprehended and the case property was taken into possession from all of them who were sitting together. Muhammad Saleem P.W.3 who was private recovery witness did not support the prosecution case. Niaz Muhammad S.I. Is the Investigating Officer, who on receipt of a secret information had organized the raid and found the appellants in possession of the smuggled goods near the graveyard. This witness denied the defence suggestion that the goods were recovered from the bus and were planted on the appellants.
4. The appellants when examined under section 342, Cr.P.C. Denied the ownership of the goods and the factum of recovery.
5. I have heard the learned counsel for the parties and have perused therecord carefully. The learned counsel for the appellants has submitted that in this case, the goods were recovered from the joint possession of the appellants as has been admitted by Nazir Ahmad P.W.2 who on a Court question 'can you say which part of the case property belongs to which of the accused' has categorically stated that all the three appellants claimed to be the owners of that case property.
' On the basis of this admission the learned counsel submitted that the law does not favour the joint possession, it is not certain who was the actual owner of this property, hence on this factual plane, the prosecution has not proved the exclusive possession of the appellants and their conviction is bad in law.
' The learned counsel has then taken a legal objection that no notice as required under section 171 of the Customs Act, 1969, was given to the appellants which has vitiated the conviction. Reliance has been placed by the learned counsel in support of this contention on Muhammad Siddiq v. The State 1987 P Cr. L J 1091. In the said case, a learned Judge of the Sind High Court held that notice under section 171 of the Act was mandatory and in the absence of service of notice under the said provision, conviction under section 156(1)(8) of the Customs Act was set aside.
6. The learned counsel has further contended that the prosecution has failed to proved the value of the betelnuts which is a notified property under section 2(s) of the Act and its value does not exceed one thousand rupees.
' In the present case, there is no evidence on the record to show that the price of the betelnuts recovered from the joint possession of the appellants was more than one thousand rupees. On this point, the learned counsel has placed reliance on Mubarik Ali and another v. The State 1981 P Cr. L J 986 and Manzoor Hussain v. The State 1981 P Cr. L J 1244 wherein it was laid down that if the value of the property was not proved, the Special Judge would not get jurisdiction to try the case.
7. The learned counsel has further contended that condition precedent for the trial of persons accused of offence under section 156(1)(89) is that the value of the smuggled goods must exceed Rs,1,000 in order to confer jurisdiction on the Special Judge Customs. In view of the fact that there is no evidence on the value of the property, the whole proceedings before the Special Judge were void and cannot be cured under section 537, Cr.P.C. He has placed reliance on Amin Gul and another v. The State PLD 1977 Lah.
205.
8. The learned counsel for the State has no answer to these legal objections.
9. Placing reliance on the aforesaid case-law, I hold that in the absence of determination of value of the seized goods, the assumption of jurisdiction by the Special Judge, Customs was without lawful authority and that no person accused under the Customs Act can be convicted on the basis of joint possession of the property and that in the absence of notice as required under section 171 of the Act, the proceedings also vitiate.
10. The upshot of the above discussion is that the appeal is accepted, the conviction and sentence of the appellants are set aside and they are acquitted of the charge. The appellants are on bail, they are discharged from their bail bonds.