Qazi Talib Mohyuddin son of Qazi Ghulam Mohyuddin, Riaz Khan son of Haji Abdul Hakim and Aamir Mohyuddin son of Qazi Talib Mohyuddin, were tried by the learned Special Judge (Customs, Taxation and Anti-Smuggling), N.-W.F.P., Peshawar, on a charge under section 156(1)(89) of the Customs Act, 1969, registered against them vide F.I.R. No,5 dated 25-1-1989 I&P Branch, Peshawar.
All of them were, however, acquitted by the learned trial Judge vide judgment dated 18-8-1993.
2. The State through Deputy Attorney-General of Pakistan, at Peshawar, has questioned the acquittal of the three accused-respondents by way of instant appeal.
3. Succinctly stated, the facts of the case are that Customs Staff warehouse, Peshawar raided Bushra Garments in the Industrial Estate, Jamrud Road, Peshawar, on prior information, on 25-1-1989 at 15-45 hours, wherefrom a huge quantity of Charas of foreign origin weighing 4100 Kgs., 1950 stitched jackets of foreign origin and 2600 yards of cloth of Russian origin were recovered vide recovery Memo. Exh.P.W. 2/3. As the said Industry, i,e, Bushra Garments, allegedly belonged to the accused-respondent Qazi Talib Mohyuddin, he along with Manager Riaz Khan and son of Qazi Talib Mohyuddin, allegedly as Director, were arrested under the said charge.
One Kachkool, the Chowkidar of Bushra Garments, who was present on the spot, was, however, arrested. Qazi Talib Mohyuddin and Riaz Khan was arrested later on. All the three accused- respondents were tried by the learned trial Judge and acquitted as stated above. Accused Kachkool was, however, declared as proclaimed offender and perpetual warrant of arrest was issued against him under intimation to P.A. Khyber, vide the impugned judgment.
4. I have heard the learned Deputy Attorney-General for the State (appellant) and the learned counsel for the accused-respondents and with their assistance have also minutely perused the record of the case. A look at the evidence of the prosecution witnesses shows that recovery of the Charas, stitched jackets and cloth, all of foreign origin, stands proved through the statement of Ghulam Asghar, In charge S.W.H.. His statement has further been corroborated through the statements of Zahoorullah Bangash D.S., Muhammad Amin Afridi, Inspector, Aurangzeb, D.S. And Umar Khan, Sepoy. All of them were present at the time of recovery of the abovementioned articles.
They have also testified the documents placed on record including the 'Murasila'. Therefore, recovery of the said articles from Bushra Garments stood proved. But I have to see as to whether the three accused-respondents have been connected with the commission of the offence by the persecution beyond reasonable doubt?
5. It is the case of the prosecution that at the time of occurrence only Kachkool Chowkidar of Bushra Garments, who has been declared as P.O. By the learned trial Judge, was present in the premises and so he was arrested. Later on, this P.O. Kachkool made a statement on 30-1-1989 before a Magistrate, which was recorded under section 164, Cr.P.C. In this statement, he has named the three accused-respondents responsible for storing the Charas and other articles of foreign origin in the factory. This Kachkool, however, also got recorded his other statement and that too under section 164, Cr.P.C., before a Magistrate on 11-3-1989. In the first statement, Kachkool absconder has held the three accused-respondents to be responsible for storing the contraband and other articles of foreign origin in the factory but in the subsequent statement dated 11-3-1989 he has completely changed his version by exonerating all the three accused-respondents from the commission of the offence by saying that during the days of occurrence the said factory, Bushra Garments, was on lease with one Gul Rehman, who used to run it occasionally and that Qazi Talib Mohyuddin or his son Aamir Mohyuddin had nothing to do with the said factory. Admittedly, accused-respondents Aamir Mohyuddin and Riaz Khan were involved in the case as per statement of the proclaimed offender, Kachkool. But as staed above, this very accused has also made another statement under section 164, Cr.P.C. Totally giving a different version of the occurrence.
This position has also been admitted by the prosecution witnesses, who have categorically admitted in their depositions before the trial Court that accused-respondents Aamir Mohyuddin and Riaz Khan have been involved in the case on the basis of no other evidence except the statement of Kachkool, P.O. The conduct of this accused is that after his arrest he was examined as a witness under section 164, Cr.P.C. On 30-1-1989 but when he made a subsequent statement on 11- 3-1989 and that too under section 164, Cr.P.C., favouring the accused-respondents, he was again arrayed as an accused in the case. When the said Kachkool was enlarged on bail he slipped away and the Court had no option but to declare him as proclaimed offender and issued perpetual warrant of arrest against him Learned counsel appearing for the accused-respondents laid great stress on the conduct of this accused, whose statements were to some extent admitted by the prosecution witnesses. The superior Courts have held that statements of such a person should be totally discarded, reference can conveniently be made to a case reported as Muhammad Sarfraz Khan v. The Crown PLD 1953 Lahore 495. I, therefore, hold that the prosecution's case with regard to Riaz Khan and Aamir Mohyuddin is totally doubtful and they have been rightly acquitted by the learned trial Judge.
6. Though accused-respondent Qazi Talib Mohyuddin has also been acquitted by the learned trial Judge but on different grounds. After confirmation of his pre-arrest bail, accused-respondent Qazi Talib Mohyuddin took the stand in his statement recorded under section 161, Cr.P.C. That no doubt he was the owner of the industry Bushra Garments but in view of his financial position it was on lease with one Gul. Rehman of Khyber Agency, during the days of A occurence. Alongwith the said statement, the accused-respondent has annexed an unregistered deed, Exh.D.A., showing that the said industry had been leased out to the said Gul Rehman of Khyber Agency. It was incumbent upon the prosecution to have verified the said deed by examining its marginal witnesses, namely, one Maqsood Khan and his father Abdullah Khan. Although the record shows that both of them were summoned but for best reasons known to the prosecution they were not examined. Similar is the case with the lessee Gul Rehman, whose attendance was also not procured by the prosecution, although his address was easily verified from Political Agent concerned but no effort was made for his arrest. The obvious result that flows from what has been said above is quite understandable.
The presumption is that if attendance of the lessee Gul Rehman has been procured, or if the marginal witnesses of the deed, Exh. D.A., had been examined, they would not have supported the prosecution case.
' Anyhow, non-production of the lessee Gul Rehman and the two marginal witnesses of the deed, Exh. D.A., though alive and could be made available, casts serious doubt on the case of the prosecution. The accused-respondents Riaz Khan as well was Aamir Mohyuddin have taken the plea that they were neither owners nor Directors, nor Managers of Bushra Garments. As mentioned in the preceding paras. And accused-respondent Qazi Talib Mohyuddin has straightaway adopted the stand that he was not present at the time of recovery of the abovementioned articles of foreign origin, so the burden had shifted to the prosecution to rebut such pleas of the accused-respondent and prove their case through evidence of unimpeachable character, which is totally lacking in the instant case, therefore, the conclusion arrived at by the learned trial Judge was nothing but inevitable.
7.The record also shows that though the accused-respondents were c booked in a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 too but it was cancelled as untraced, giving such strength to the presumption that the instant case was also baseless.
' S. The learned trial Judge has very ably discussed the alleged foreign origin of the cloth and the stitched jackets allegedly recovered from Bushra Garments Factory. The prosecution has, on the other hand, miserably failed to prove it otherwise. However, neither the prosecution nor the accused-respondents have discharged their burden with regard to the Charas and its origin.
9. Before parting with the case, let me say that on the one hand the prosecution has failed to prove its case beyond reasonable doubts and on the other, the learned Deputy Attorney-General has failed to attack the impugned judgment of the learned trial Judge with sound legal reasons, viz. That it is perverse, fanciful or unartistically recorded, Fayyaz Akhtar v. The State 1993 SCMR 828 referred.
10. The net result of the above discussion is that this appeal is devoid of any force/merits, which is hereby dismissed. The accused-respondents are present in Court on bail. Their bail bonds are discharged.