PLJ 2022 Quetta 121
Present : ABDULLAH BALOCH , J..
HABIBULLAH-- Appellant
versus
STATE--Respondent
Cust. A. No. 1 of 2022, decided on 25.4.2022.
Customs Act, 1969 (IV of 1969) --
----Ss. 156(1) & 185-- Conviction and sentence --Challenge to --Recovery of foreign smuggled
goods --Creation of lacunas and infirmities --Benefit of doubt --Entitlement of appellant-- Neither
smuggled goods nor carrier (coach) was produced before trial Court --None of passenger,
conductor etc. of Coach in question was associated as witness by Investigating Officer, this fact
alone creates serious doubts in case of prosecution, but benefit of such doubts have not been extended in favour of appellant by trial Court at time of recording conviction of appellant, for
which appellant was entitled --Impugned judgment passed by trial Court suffers from mis -
reading, non- reading and mis -appreciation of law and evidence, which is not sustainable --Appeal
allowed. [Pp. 123] A, B & C
1995 SCMR 1345 ref.
Mr. Rafiullah Barech, Advocate for Appellant.
Mr. Jamil Bostan, Assistant Attorney General for State.
Date of hearing: 8.4.2022.
J
UDGMENT
This judgment disposes of Custom Appeal No. 01 of 2022 filed by the appellant Habibullah Son
of Abdul Hameed, against the judgment dated 31st December 2021 (“the impugned
judgment”) passed by Special Judge Customs, Lasbella (“the trial Court”) , whereby the
appellant was convicted under Section 156(1) of the Customs Act, 1969 and sentenced to suffer
R.I. for a period of three (03) years with fine of Rs. 1,263,263/ - (Rupees One Million Two
Hundred Sixty Three Thousand Two Hundred Sixty Three) or in default thereof to further suffer three (03) months S.I. The benefit of Section 382- B, Cr.P.C. has also been extended in favour of
appellant.
2. Facts of the case are that on 28th February 2021 at about 1150- hrs, the complainant namely
Subedar Muhammad Ejaz, Pakistan Coast Guard lodged FIR No. 27 of 2021 at PS Pakistan
Coast Guard uthal district Lasbella, with the averments that on the said date they were on usual
patrolling duty towards Winder, when Al -Nisar Coach bearing Registration No. JB -8533 was
intercepted at main RCD Road towards Winder from Headquarters at distance of 20 -KM, the
search thereof was resulted into recovery of foreign smuggled items i.e . (1) Betel nuts 859 kg (2)
Mix cloths 1114 kg, (3) Padlock (small) 13 cotton (4) China salt 05 bags and (5) Cigarette pine
170 sticks stashed under seats of the said coach in exclusive possession and conscious of the
driver namely Habibullah son of Abdul Hameed.
3. After completion of investigation, the appellant was challaned before the trial Court, which
indicated the charge and on denial, the prosecution produced three (03) witnesses. Whereafter the appellant was examined under Section 342 Cr.P.C. However, neither he recorded his statement on oath as envisaged under Section 340 (2) Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above in para No. 1, whereafter the instant appeal has been filed.
4. Heard the learned counsel for parties and perused the available record, which reveals that the Pakistan Coast Guard personnel during usual patrolling intercepted Al -Nisar Coach bearing
Registration No. JB -8533 in the main RCD road towards Winder from Headquarters. The search
of coach in question was resulted into recovery of foreign smuggled items as mentioned hereinabove in para No. 2. The coach in question was being driven by the appellant. To substantiate its case, the prosecution has produced three (03) PWs. PW -1 Subedar Muhammad
Ijaz is the complainant of the case, who deposed the contents of the FIR. While PW -2 Naik Sajid
Mehmood is recovery witness, who produced recovery memos, inventory of smuggled goods while PW -I Naib Subedar Shafiullah is the Investigating Officer of the case, who counted the
steps taken by him during the course of investigation.
5. It is worth to mention here that neither the smuggled goods nor the carrier (coach) bearing Registration No. JB -8533 was produced before the learned trial Court, which were required! to
be produced by the prosecution in support of its version, but admittedly the prosecution has failed to produce the said articles before the learned trial Court and this fact was admitted in examination in chief and cross examination of PW -2, during the course of cross examination
PW-2 in reply of question No. 19 admitted that:
19 ۔ ﯾہ درﺳﺖ ﮨﮯ ﮐہ ﺑﺮ آﻣﺪه ﺗﻤﺎم اﺷﯿﺎء ﭼﮭﺎﻟﯿہ، دﯾﮕﺮ ﮐﭙﮍے وﻏﯿﺮه ﮐﺎ ﻣﯿﺮے ﺳﺎﻣﻨﮯ ﺳﯿﻞ ﭘﺎرﺳﻞ ﻧہ ﺑﻨﺎﯾﺎ
ﮔﯿﺎ ﺗﮭﺎ۔
In reply of question No. 25 deposed that:
25 ۔ ﺗﻔﺘﯿﺸﯽ آﻓﯿﺴﺮ ﻧﮯ ﺑﮣﺎﻟﯿﻦ ﮨﯿﮉ ﮐﻮارﮢﺮز ﻣﯿﮟ ﻣﯿﺮے ﺳﺎﻣﻨﮯ ﺑﺮآﻣﺪه ﭼﮭﺎﻟﯿہ ﮐﺎ وزن ﮐﯿﺎ ﺗﮭﺎ۔
6. All such glaring lacunas and infirmities create serious dents in the case of prosecution. Besides, it was observed that none of the passenger, conductor etc. of the Coach in question was associated as witness by the Investigating Officer, this fact alone creates serious doubts in the case of prosecution, but the benefit of such doubts have not been extended in favour of appellant by the learned trial Court at the time of recording conviction of the appellant, for which the appellant was entitled.
7. Reliance in this regard is placed on the case of “Tariq Pervaiz v. The State , 1995 SCMR
1345”, wherein the Hon’ble apex Court has held as under:
“The concept of benefit of doubt to an accused is deep- rooted in our country. For giving
him benefit of doubt it is not necessary that there should be many circumstances creating
doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as matter of right. “
Thus, the impugned judgment passed by the learned trial Court suffers from mis -reading, non-
reading and mis -appreciation of law and evidence, which is not sustainable.
For the reasons discussed hereinabove, the appeal is accepted. The impugned judgment dated
31st December 2021 passed by Special Judge Customs, Lasbella is set aside, while extending the
benefit of doubt the appellant Habibullah son of Abdul Hameed, is acquitted of the charge. The
appellant is on bail; his bail bonds stands discharged after lapse of appeal period.
(Y.A.) Appeal allowedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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