RUSTAM S. SIDHWA, J.-1. Munawar son of Allah Ditta, Mohammad Riaz son of Bashir Ahmad, Mohammad Arshad alias Achhu son of Mohammad Hussain and Mohammad Arshad son of Bashir Ahmad were tried by the learned Special Judge, Customs, Lahore, under Section 156(1)(8) read with Section 178 of the Customs Act, 1969, for attempting to smuggle firearms and ammunition to India.
The learned Special Judge, by his judgment, dated 9th December, 1987, convicted all the four accused under the said sections and sentenced them to five years' rigorous imprisonment each with a fine of Rupees Five Thousand (Rs. 5000/-) each or in default thereof to undergo further simple imprisonment for six months each. The joint appeal filed by the said four convicts is now before me for disposal.
2. The brief facts of the case are that on the night between 11/ 12th July, 1987, the Rangers picketed themselves behind border pillar No. 65/4 in the area of Rangers Post Dhauri Gill at a distance of about 200 yards from the Indo-Pakistan border.
The Rangers party consisted of Mohammad Ilyas Inspector PW1, Mohammad Ramzan SI PW2.
Mohammad Iqbal Sepoy PW3 and others. At about 1-00 a.m. On 12th July, 1987, four persons carrying packages were observed going towards India. The Rangers party apprehended them. On inquiry, the accused disclosed their names and identity. On search Munawar, accused, was found carrying bag P3 in which wire two rifles G.3 P4/1-2. Mohammad Riaz, accused, was carrying bag PI in which were two rifles G.3 P2/1-2. Mohammad Arshad son of Mohammad Hussain, accused, was carrying a bag P5 in which there was a sten-gun P6 and 10 live rounds of sten-gun P7/1-10.
Mohammad Arshad son of Bashir Ahmad, accused, was carrying a malaishia bag P8 in which there was 300 live rounds of G.3 P9/1-300. The recoveries made from Mohammad Riaz. Munawar, Mohammad Arshad son of Mohammad Hussain and Muhammad Arshad son of Bashir Aitmad were taken into possession vide memos PA, PB, PC and PD respectively. Notices under Section 171 of the Customs Act, 1969, were served on Mohammad Arshad son of Bashir Ahmad, Mohammad Riaz, Mohammad Arshad son of Mohammad Hussain and Munawar accused vide memos PE, PF. PG and PH respectively. Mohammad Ilyas, Inspector Rangers PW1 then prepared the investigation report P.1 and site plan PK.
3. After completing the necessary investigation, challan against all the accused was sent up.
4. At the trial, the prosecution produced Mohammad Ilyas, Inspector Rangers PW1, Mohammad Ramzan SI Rangers PW2 and Mohammad Iqbal, Sepoy Rangers PW3 in proof of the apprehension of the four accused near the Indo- Pakistan border with the smuggled goods and Javed Iqbal, SI Rangers PW4, Mohammad Inayat, Hav. Rangers PW5 and Gul Mohammad Inspector Rangers PW6 in support of the inquiry held by the Pakistan Rangers regarding theft of arms and ammunition from Rangers Check Post Jassar on the night between 11 /12th July, 1987.
5. All the four accused denied all the accusations that were levelled against them, including the recoveries made from their person. Mohammad Arshad son of Bashir Ahmad, accused, in his statement under Section 342, Cr.P.C, denied that he had stolen the weapons or ammunitions from Rangers Check Post Jassar, where he had been posted. He stated that he had been arrested alongwith his three co-accused from his village on 4th July, 1987 and the seized weapons -and ammunition were planted upon them, that they were then brought to the Rangers Headquarters at Sialkot and confined for some considerable time, where later they learnt that a case had been registered against them. He also stated that when the Rangers had come to arrest him and his co- accused, a large number of persons had collected there, who protested to them about the arrest of his co-accused, though they did not do so about him as he was an employee of the Rangers. He further stated that no incident, as stated by the prosecution, had ever taken place and that he had neither stolen the property nor attempted to smuggle the same. He averred that the witnesses had deposed against him falsely because it had been decided by the higher officers that if a case of theft was registered, it would bring a bad name to the Rangers. Munawar, Mohammad Riaz and Mohammad Arshad son of Mohammad Hussain accused in their statements under Section 342, Cr.P.C, stated that Mohammad Arshad son of Bashir Ahmad, who was employed in the Rangers, had come to their village on 3rd July, 1987, that on 4th July, 1987 a large number of Rangers including officers came to the village where they arrested them and their co-accused, where they stated that Arshad son of Bashir Ahmad had stolen Government weapons and ammunition and had brought them to his village and that they had suspicion that they being neighbours or related to him might be in league with him. They further stated that a large number of villagers collected and offered defence in their favour, except Mohammad Arshad son of Bashir Ahmad, but the Rangers did not accept the assurance. They further stated that they were taken to the Rangers Headquarters in Sialkot where they were confined and where they subsequently learnt that they had been involved in false cases. They further averred that the witnesses had deposed falsely against them because they were told by the officer that a case of theft, if registered, would bring a bad name to the Rangers. They all stated that they neither knew anything about the incident nor had any concern with the case property.
6. The accused produced Ghulam Sarwar DW1, Mohammad Yar DW2 and Mohammad Inayat DW3 in their defence.
7. The learned trial Judge, relying upon the prosecution evidence, but disbelieving that produced by the defence, convicted and sentenced Munawar, Mohammad Riaz, Mohammad Arshad son of Mohammad Hussain and Mohammad Arshad son of Bashir Ahmad, accused, as stated in para 1 above.
8. I have heard the arguments of the learned counsel for the petitioner and the Customs Department and have perused the record. The evidence as regards the apprehension of the four appellants whilst attempting to smu ggle arms and ammunition to India and the recovery' of the said arms and ammunition is furnished by Mohammad Ilyas Inspector Rangers PW1, Mohammad Ramzan SI Rangers PW2 and Mohammad Iqbal Sepoy Rangers PW3. Their account of the occurrence stands recorded in para 2 above, which need not be repeated. On behalf of the appellants it is submitted that since no public witness was joined in the raiding party and all the witnesses produced are members of the Rangers party, the prosecution story is concocted and must be rejected. It is neither practicable nor possible for the Rangers in the border areas to include public witnesses in raids, for such a step would impair secrecy and surprise, which are essential for its success. Nothing has been pointed out in cross-examination to show that any of the eye-witnesses were either inimical to any of the appellants or had any animosity with any of them sufficient to justify their deposing falsely against them. The defence evidence produced by the appellants is contradictory. Whilst Ghulam Sarwar DW1, Mohammad Yar DW2 and Mohammad Inayat DW3 stated that they were arrested by the Rangers from their homes on 4th July, 1987 at about 3-00 p.m. And excluded the arrest of Arshad son of Bashir Ahmad, appellant, the said appellant, however, took up the defence plea in his statement under Section 342, Cr.P.C, that he was also arrested alongwith his three co-appellants from the said village on the said date and time. Other contradictions in the testimony of the defence witnesses have been brought out by the learned trial Judge in paras 13 and 14 of his judgment, which need not be repeated. The defence evidence being unreliable, cannot be accepted. The prosecution witnesses are independent witnesses. Their story is natural and convincing and has the ring of truth. Their account, both as regards the apprehension of the appellants and the recovery of the smuggled goods from them is accepted without any hesitation.
9. The evidence as regards the theft of the stolen goods from Rangers Check Post Jassar on the night between 11th/ 12th July, 1987 and the inquiry held by the Rangers in that connection is furnished by Javed Iqbal SI Rangers PW4, Mohammad Inayat Hav. PW5 and Gul Mohammad Inspector Rangers PW6. Javed Iqbal Inspector PW4 was a member of the Court of Inquiry that inquired into the theft of arms and ammunitions from Rangers Check Post Jassar. He submitted in original the report of the Court of Inquiry Ex. PM. The said report shows that Munawar, Mohammad Riaz and Arshad son of Mohammad Hussain, appellants, stole firearms and ammunitions from Jassar Check Post between 10-00 p.m. To 10- 10 p.m. On 11th July, 1987 in connivance with Mohammad Arshad son of Bashir Ahmad appellant, and that they were to be smuggled to India for delivery to an Indian smuggler, when they were intercepted by the Rangers Naka Party.
Mohammad Inayat Hav. PW5, who was one of the witness in the inquiry, deposed about the incident leading to the theft of the firearms and ammunition from Jassar Check Post armoury on th night of 11th July, 1987. Gul Mohammad Inspector PW6 deposed about having received a telephonic message about the theft of the firearms and ammunition from Check Post Jassar on the night of 11th July, 1987, whereupon he informed his Wing Commander about the same and went to the Jassar Check Post. He stated that on the following morning he received a report that the appellants had been arrested by the Rangers alongwith stolen firearms and ammunition. Nothing has been brought out by the learned counsel for the appellants to shake their testimony. The theft of the firearms and ammunition from Jassar Check Post and at the instance of the appellants stand conclusively established.
10. Certain legal submissions have been made on behalf of the appellants which require examination. First, it is submitted that the property attempted to be smuggled being Government property, unless theft was proved, no inference can be drawn that the same was in the possession of the appellants on the date they were apprehended and since the appellants were neither charged with theft nor the same was formally proved against them in the trial, the appellants could not be convicted for the offence under Section 156(1 )(8) read with Section 178 of the Customs Act, 1969. Second, that , till the case of theft was separately lodged and proved, the present case could not have been initiated against the appellants, in view of Section 170 of the Customs Act, 1969.
Third, that Mohammad Ilyas Rangers PW1 was not competent to file the police report under Section 185-A of the Customs Act, 1969. Fourth and last, that since the statements of the appellants were not compulsorily recorded by the Special Judge, the trial stands vitiated. In this connection Rizwan v. The State (PLD 1986 Lah. 222) and Abdul Ghaffar v. The State (PLJ 1989 Cr.C. Pesh. 178) have been cited. With regard to the first submission, the prosecution has, out of abundant caution proved the theft of the smuggled goods from Jassar Check Post. In this connection my findings recorded in para 9 above may be read in support. It was not necessary for the prosecution to prove the theft by criminal proceedings. .Since a joint trial for theft and attempted smuggling was not possible before the learned Special Judge, Customs, the prosecution made no attempt to charge the appellants with offences under Section 411 or 379, PPC. The trial of the appellants under Section 156(1)(8) read with Section 178 of the Customs Act, 1969, does not stand vitiated in any way. This objection, therefore, has no force. With regard to the second submission raised on behalf of the appellants, nothing turns on this submission. Where anything liable to confiscation under the Customs Act is seized by any police officer on suspicion that it may have been stolen, he may carry them to any Police Station or Court at which a complaint connected with the theft or receiving of such things has been made or an inquiry connected with such stealing or receiving is in progress, and their detain such things until the dismissal of such complaint or the conclusion of such inquiry of any trial thence resulting. The word "may" shows that the instruction is directory and not mandatory.
The fact that the seized smuggled property was not sent to the Police Station or Court is, therefore, not fatal. In any case, no FIR regarding theft or possession of the stolen property had been recorded in any Police Station. This submission, therefore, has no merit and is rejected. With regard to the third submission raised on behalf of the appellants, the same has been dealt with in para 15 of the judgment of the learned Special Judge, Customs, and I need not labour on this matter any further. This submission is also rejected. With regard to the fourth and last submission, there is no merit in the same. All the appellants were specifically put the question whether they would appear as their own witnesses on oath, to which question they replied in the negative. Their statements to this effect were recorded, which were duly signed by them. Since the appellants refused to appear in their own defence on oath,, nothing turns on this submission.
11. The upshot of the above discussion is that the prosecution has been able to prove its case to the hilt against the appellants.
12. The only question that now remains is that relating to sentence. On behalf of the appellants it is pleaded that the sentence is severe and may be reduced. This indeed is a serious case involving attempt to smuggle firearms and ammunitions to India. The main culprit in this case is Mohammad Arshad son of Bashir Ahmad, appellant, who was Sepoy at Jassar Check Post and through whose assistance and connivance the firearms and ammunition, recovered from the appellants, was stolen from the armoury at Jassar Check Post. He, therefore, does not deserve any leniency. As regards the remaining three appellants, they appear to have joined in the venture, perhaps for some small monetary gain. As a special case, I would, therefore, reduce their sentences of imprisonment to two years' rigorous imprisonment each, but would maintain the fines imposed on them and the imprisonment ordered in default thereof.
13. For the foregoing reasons, the appeal of Mohammad Arshad son of Bashir Ahmad, appellant, is dismissed. The appeal of Munawar son of Allah Ditta, Mohammad Riaz son of Bashir Ahmad and Mohammad Arshad alias Achhu son of Muhammad Hussain, appellants, is partly accepted, in terms of reduction in their sentences of imprisonment, as stated above. The benefit of Section 382- B, Cr.P.C, is granted to all the appellants.