1. ' This is an appeal against the judgment dated 19-6.1974 passed by the Special Judge, Customs & Taxation, Karachi convicting the appellant Noor Mohammed son of Hashim for the offence under clause 89 of section 156 of the Customs Act, 1969 and sentencing him to R. I. For 18 months, and fine of Rs, 2,000 or in default to suffer further imprisonment for six months.
2. ' Briefly, the prcsecution was that on 24-2.1973, Preventive Officer Syed Gbulam Abbas received spy information that a caravan of 17 camels loaded with smuggled goods bad passed the zero point on the R. C. D. Road about 60 miles from Hub Chowki where he was posted and was proceeding towards Kuraro mountains. He informed the Superintendent Anti Smuggling Organization and thereafter formed three raiding parties of which one was headed by him. As night had fallen, he did not go deep into mountains on that night. On the next day on 25-2-1973 at about 11 a. In. He took two Mashirs Ramzan and Usman from a nearby locality and the raiding party in a jeep and went towards the mountains and at about 6 p. m. Located the smugglers who were hiding in a 60 feet deep pit. The smugglers after seeing the raiding party opened fire and started to run. The raiding party after having exchanged fire followed the smugglers who however made good their escape except appellant Noor Muhammad who was captured by them. The raiding party thereafter seized 13 camels and the smuggled cloth totalling to 13053 yards under a Mashirnama prepared by the Preventive Officer in presence of Mashirs Ramzan and Usman. The raiding party then brought the appellant, smuggled cloth and camels to Bund Murad Custom Post where the Preventive Officer registered the case on 26-2-1973. Thereafter, P. W. Shah Nawaz Khan, Senior Preventive Officer took up Investigation of the case and after completing the necessary formalities challaned the appellants in the Court of the learned Special Judge.
3. ' The prosecution in support of its case examined Preventive Officer Syed Gh-ulam Abbas, mashirs Ramzan and the Investigating Officer Shah Nawaa Khan. The appellant admitted his presence at the spot but explained his preserce in his statement under section 342 as follows and also examined one witness namely, Ibrahim in defence :- "On that day I was going to Hub Dam through by-pass Kuraro. At that place I saw the smugglers going with caravan of camels. I had a camel. The smugglers asked me to give them my camel since one of their camels had become lame. I refused them. But the smugglers insisted that I should give them my camel. By this time Customs people came there in jeeps. I called the Customs people telling them that the smugglers were taking me by force. Customs people then surrounded us all. The Customs people settled with those smugglers. After one hour Customs people came back. Other smugglers were not there. The Customs people told me to accompany them to Chowki Bundmurad. Where they would leave me. At Bundmurad I was locked up. Then Customs people said I was smuggler."
4. ' The learned Special Judge believed the prosecution witnesses and rejecting the explanation of the appellant as an afterthought convicted and sentenced him as stated above. Hence this appeal.
5. ' The point for consideration is whether the appellant has been rightly convicted and sentenced.
6. Since the appellant has admitted his presence at the spot, the only question for consideration is whether the explanation given by him for his presence is plausible in which case it would react on the whole case and he would be entitled to acquittal.
7. ' His explanation in his statement under section 342, Cr. P. C. Was that on that day he was going to Hub Dam through bye-pass Kuraro at which place he saw smugglers going with the caravan of camels. The smugglers asked him to give them his camel since one of their camels had become lame but he refused, but the smugglers insisted on having the camels by which time the Customs people came there and on seeing them he told them about it but the Customs people surrounded them. Thereafter the Custom people settled with those smugglers and came back after an hour after the smugglers had left. The Custom people then told him to accompany them to Chowki Bund Murad where they would leave him but instead of leaving him they locked him up.
8. ' The statement of the appellant would show that there was no exchange of fire between the Custom party and the smugglers. This statement of the appellant appears to ring true in that although Preventive ()Weer Sye Ghulam Abbas has stated in his deposition that about 200 rounds of fire were exchanged between the raiding party and the smugglers but not a single fired empty was secured from the scene of offence, either by him or by the Investigating Officer. Further, P. W.
9. Syed Ghulam Abbas has stated in his A evidence that the appellant was not armed with any fire- arm and was riding on a camel. He has further stated that the appellant was not concealing himself behind the camel and neither he nor the camel on which he was riding received any injury.
10. The evidence further shows that he also mad-no effort to run. Such conduct of the appellant is more consistent with and lends support to his explanation that he had nothing to do either with the smugglers or the goods. It was conceded that the appellant lived in the village near the place from where he was apprehended and that the route through which the appellant was passing was normal route for the people living in the village of the appellant. It is also not disputed that the appellant was a labourer and his livelihood depended on his camel. Then, D. W. Ibrahim who is 70 years old and a Zamindar of the area has stated in his evidence that the appellant was present in his village on the day previous to the day when he was apprehended by the Custom people. His evidence would show that he is an impartial and truthful witness. In view of the above circumstances, the explanation of the appellant that he was passing by the Kuraro mountains on his way to Bund Murad when he was confronted by the smugglers could well he true. The explanation of the appellant would also appear to show that no Mashirnama of seizure of the goods or the camel was prepared at the spot but was prepared at Chowki Bund Murad. This is confirmed by the Mashir Raman examined by the prosecution itself who stated in his cross- examination that the Mashirnama was prepared at Chowki Bund Murad and he signed it at about 12 noon, although Preventive Officer Syed Ghulam Abbas in his evidence stated that the Mashirnama was prepared at the spot at 8 p. m.
11. ' All the above circumstances go to show that the explanation given by the appellant could well be true and could not be ruled out as an afterthought and accordingly the appellant is entitled to acquittal.
12. ' For the aforesaid reasons, I set aside the conviction and sentence of the appellant and acquit him.
13. He is on bail. His bail bond stands discharged.
14. ' This appeal stands allowed.