' These are four Appeals Nos. 120/77, 121/77 122/77 and 123/77 by Akbar Ali son of Sardar, Gul Rahim son of Wali Jan, Amin son of Shahir, Khan Afzal son of Bostan and Obaidullah son of Kabul Jan, respectively, against the judgment of the learned Special Judge (Central) Customs & Taxation, N.- W. F. P., Peshawar, dated 12th of September 1977, whereby the appellants were convicted under section 156 (89) of the Customs Act and sentenced to the following terms of imprisonment "Amin, Obaidullah,. Ali and Gul Rahim to a term of three years R. I. And a ne of Rs, 2,000 in default to undergo for R. L for three months. Khan Afzal was convicted and sentenced to six months R. I. And a fine of Rs, 1,000 in default R. I. For 1 months under section 156(89) of the Customs Act."
2. This judgment will dispose of all the four appeals as they arise out f the same transaction,
3. The prosecution case as stated at the trial was that Mr. K. M. Lamdad, Deputy Superintendent, Customs Incharge, Check Post, Khushal arh, received information regarding the smuggling of huge quantity of ontraband goods and on this information he alerted the staff on the heck Post, Khushal Garh Road; that in the mean time Truck No, PRB 7921 rived at the mentioned check post at about 11- 45 a.m. On the 11 th of ne 1977, which was stopped and on checking all the five appellants were found present in the truck; that K. M. Alamdad, P. W. 4, searched the truck in question in the presence of Gul Khan, P. W. 1, Feroz Khan P. W. 2, and others and found that the floor of the truck had a double cover and on the removal of the upper wooden plank, he found large number of foreign made wrist-watches and chains concealed in the secret cavities especially made, that in all 7212 wrist-watches and about 1536 chains were recovered and taken into possession in the presence of the witnesses. The appellants were taken into custody and K. M. Alamdad, P. W. Sent a `murasila' to the S. H. O. Police Station, Gumbat, for the registration of the case under section 156(8)(89) of the Austoms Act against the appellants.
4. In support of the prosecution case the learned trial Court examined K. M. Alamdad, Deputy Superintendent, Customs P. W. 4, Feroz Khan P. W. 2, Hamesh Gul, Inspector S. W. H. P. W. 3, Gul Khanan, Sepoy Customs Department, and Muhammad Rafique as P. W.
5.
Mr. K. M. Alamdad, P. W. 4, gave the same version as stated above and admitted the correctness of his `Mnurasila', Exh. P. A/1, which was subsequently incorporated in the First Information Report, Exh.
P. A. He also prepared the memo. Exh. P. B. Taking into possession wrist watches and the chains and seized truck No, P. R. B. 7921 vide recovery memo Exh. P. C. According to this witness the total value of the goods was Rs, 11,87,460 while the value of the truck was rupees two lacs. He also investigated the case and submitted a charge-sheet against the appellants. Gul Khanan, P. W. 1, stated that he was present at the Check Post, Khashal Garh when the truck in question arrived and that on stoppage the truck was searched by K. M. Alamdad, P. W. 4, in his presence and it was found that all the five appellants were occupying it; that the search resulted in the discovery of secret cavities in the floor of the truck; and that the contraband goods were recovered and a memo was prepared which he attested as a marginal witness. Feroz Khan, P. W. 2, also supported the prosecution case and witnessed the recovery memo, Exh. P. B. And signed it as a marginal witness. Muhammad Rafique, P. W. 5, also arrived on the spot and found the seized goods lying in the office of the IX deputy Superintendent, Customs, Khushal Garh Check Post, and he signed the memo, Exh. P. D.
5. The appellants were examined. They pleaded not guilty and produced no defence. Amin, appellant, stated that the real driver of the Truck No, P. R. B. 7921 was one, Sharbat, who had informed him a day prior to come to Kohat to accompany him to Hassan Abdal and he accordingly contacted Sharbat at Kohat, who was accompanied by his cousin, Khan Afzal appellant ; that at the Bus stand in Kohat Akbar Ali and Gul Rahim, appellants, also met him, who wanted to go to Kashmore in order to attend their duties, where they were employed as truck drivers; that Obaidullah, appellant, also met him near the railway crossing and requested him to take him up to Pi ndi; that as Sharbat the driver of the truck, had some domestic engagements he asked him to drive the truck to Hassan Abdal and that he would meet him there; and that he was driving the truck when it was checked at Khushal Garh Customs Check Post. The other appellants made similar statements regarding their presence in the truck, loaded with the smuggled goods.
6. The learned counselfor the appellants contended that the statemen of Amin, appellant, is based on true facts and that he had no knowledge the truck had double floor, packed with smuggled wrist watches and chains; that the rest of the appellants were also innocent having no knowledge of the fact that the truck was loaded with smuggled articles. In support of his contention, he cited Abdul Ali v. The State (1) which was a case under the Assam Opium Prohibition Act, and sections 5(a) and 28 deal with the presumption regarding the possession of the contraband good (opium).
In this case it was held that the knowledge which is to be presumed must be conscious possession making some kind of control possible, or, in other words, there must be mens rea or guilty knowledge before a person could be convicted of an offence under section 5 (a) for possessing opium and that unless conscious possession on the part of the accused has been proved, no presumption under section 28 arises in favour of the prosecution and the burden of proof remains on the prosecution and that burden is not shifted to the accused by anything that is contained in section 28. This was a case in which the house of Abdul Ali petitioner, was searched where his elder brother, Abdul Suvan, and yo ngs brother, Abdul Manan, also lived and the Excise Sub-Inspector recovered opium and as a result thereof the two, namely, the petitioner and Abdul Manan, were sent up for trial under, section 5 (a) of the Assam Opium Prohibition Act, while Abdul Suvan was absconding. On appeal, Abdul Manan was given the benefit of doubt but Abdul Ali's conviction was maintained. Their Lordships were of the opinion that the case against Abdul Ali was also not the one to hold him to be in conscious possession of the opium or that he had knowledge of its existence in the house.
7. Now, reverting to the present case, I find that the wordings of section 156 (89) are :- "156.-(1) Whoever commits any offence described in column 1 of the table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof :-
(89) If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, or in any manner dealing with smuggled goods or any goods with resp. To which there may be reasonable suspicion that they are smuggled goods."
And in my opinion the word "possession" appearing in the section and the meaning attributed to it ought to be 'conscious possession'. Then before the presumption under the section comes into operation, conscious possession on the part of the accused is to be proved by the prosecution. As regards the word "concerned" in the section, the argument which is attempted to be built on the interpretation of this word with regard to all the appellants is hardly well-founded. In its legal conception the word "concerned" would be applicable to the case of a person who in fact is involved in the act and is actually engaged in the activity for which he is tried. The accused in order to be "concerned", must be shown to have specific knowledge and must also be consciously taking part in the prohibited act. In the present case, the learned Special Judge undoubtedly has discussed the question in the following words :- "Although each of the accused has taken a separate and specific plea in his defence but producing no evidence in their defence, the pleas {{FOOT NOTE}}
(1) AIR 1952 Assam 152 {{FOOT NOTE}} so raised have not been established and substantiated. So much so, that Amin accused has not been able to produce even Sharbat, the alleged driver of the truck. Similarly, Khan Afzal accused has also produced no clear proof to establish that he was in fact a student at the time of his arrest and was in fact going for a pleasure trip. On the other hand, the prosecution has produced clear, cogent and well connected evidence bringing home the charge against the accused."
' But he has not referred to any such evidence which would lead to the conclusion that besides Amin, appellant, the other accused had also conscious possession of the contraband goods, or were concerned in carrying or in any manner dealing with the smuggled goods.
8. The evidence led by the prosecution, a resume of which has been given above, would show that it was Amin, appellant who was driving the truck and has failed to account for his possession, satisfactorily. On th contrary his plea that the truck was being driven by him on the request o Sharbat has not been substantiated by any evidence. As regards the remainin four appellants, I find that the prosecution has not proved complicity of these appellants in any way being in possession, or concerned in carrying the contraband goods.
9. On the view of the matter that I take, I maintain the conviction and sentence of Amin, appellant, and dismiss his appeal. However, the conviction and sentence of Akbar Ali, Gul Rahim, Khan Afzal and Obaidullab, appellants, are aside and they are acquitted. Khan Afzal, appellant, is on bail and is discharged of the obligation of his bail bonds. The other three appellants shall be set at liberty if not wanted in any other case.