1984Q1 (PLP)

This order would dispose of two appeals filed against the common judgment passed by tile learned Special Judge (Customs), whereby he held the appellants guilty under section 156(1) (89) of the Customs A‑.t and sentenced each of them to undergo R. I. for three months and to pay fine of Rs. 300 each or in default of payment of fine to suffer further R. I. for one month. The case of the prosecution is that on 10‑2‑1981, at about 1‑50 p.m. on Sirki Road, Quetta, the accused were found in possession of smuggled goods i.e. 221 Killows betel‑nuts and 276 glasses of foreign made. The goods were seized from Suzuki No. QAA‑3404. At the trial the prosecution examined two witnesses P. W. 1 Abdul Ghani S, H. O. Sariab Police Station Quetta, who affected the recovery from the possession of the appellants and arrested them, P. W. 2 Foot Constable Muhammad Anwar witnessed the said incident. P. W.. 3 Wali‑ur‑Rehman conducted investigation of the case. The accused in their statements under section 342 denied the charge. It has been stated by the accused Muhammad Saleem that the Suzuki belonged to one Ghazi. The said Ghazi requested him to drive the Suzuki, therefore, he has no knowledge about the presence of the goods in the vehicle. The co‑accused Hizbullah had stated that he had taken lift in the Suzuki near New Quetta Market and he has no knowledge about the goods. The accused Hizbullah has examined two defence witnesses, who have stated that the accused .boarded the Suzuki near Vegetable ‑Market. The learned trial Judge after assessing the evidence came to the conclusion that the appellants had committed the offence and recorded the conviction as stated above. I have heard learned counsel for the appellants and Advocate‑General for the State. It is contended by the learned counsel for the appellants that the arrest of the appellants and their trial are bad in law as the police officers had violated the provisions of section 171 of the Customs Act. Learned counsel for the appellants have stated that section 171 of the Customs Act 9s mandatory in nature and as this provision has not been complied with,. therefore, the arrest of the appellants and their conviction cannot be sustained. In this behalf, reliance has been placed on Azizullah v. The State (P L D 1981 Kar. 250). In order to appreciate the contention of the learned counsel, it is necessary to examine in detail the import of this judgment.. Before I proceed further, I reproduce section 171 of the Customs Act :‑ "171‑When seizure or arrest is made, reason in writing to be given when anything is seized, or any person is arrested under this act, the Officer or other person making such seizure or arrest shall, as soon as may inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest." The effect of omission to give such information in writing to the person so arrested or the person from whose possession things are seized, was con sidered in the above‑referred judgment. It was observed at p. 253 :‑ "I have no doubt in my mind that the provisions of this section are mandatory and were designed to protect persons from being arrested of goods from being seized on unjustifiable grounds which could be subsequently examined by the Court or the relevant Authority on the objection of the aggrieved person. P. W. Muhammad Talib, the Seizing Officers admitted in his examination‑in‑chief that he did not serve any notice under section 171 of the Act upon the appellant and there is no evidence that such notice has been served upon the appellant at any time. The arrest of the appellant and the seizure of goods being in breach of the mandatory provisions of section 171 was, therefore, illegal. I have no difficulty in holding that these provisions are mandatory as provisions of similar nature in the Sea Customs Act, 1875 regarding the search and seizure of the goods have been held to be mandatory. In S. M. Yousuf v. Collector of Customs (P L D 1968 Kar. 599), the effect of violation of section 172(a) of the Sea Customs Act was examined. One of the requirements of the said. section was that a search for unearthing concealed smuggled goods was that the Officer of the Customs was to prepare a statement in writing of the grounds of his belief and of the goods for which search was to be made ; and in case such search was effected a signed copy of the such statement was to be delivered to the occupier of the place which was searched. It was held that where notice of search was received without the grounds of belief having been recorded before hand such failure amounted to breach of statutory provisions and were violative of Constitutional guarantees provided in Article 2 of the 1962 Constitution. The search and seizure of goods was also held to be invalid. Aqwarul Haq, J. (as he then was) made the following observations about the nature of these provisions `These are stringent requirements prescribed by law in order to ensure that the enormous power of search without warrant given to Customs Officer is exercised honestly and judiciously. By insisting that the grounds for his belief shall be recorded before hand by the Customs Officer concerned the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party. To put it differently, it seems to me that this is a safeguard prescribed by the Legislature to ensure that the rights of the citizen in respect of private property are interfered with only for genuine reasons related to the prevention of smuggling and evasion of customs duty, etc. This safeguard can be effective only if the procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case'." This case had gone to the Supreme Court, albeit on a different point, but the view held by the High Court as to the mandatory nature of the provisions of section 172(a) was not challenged by the Customs and was expressly conceded to. (See Collector of Customs v. S. M. Yousuf (1).

7. The importance of this question does not lie in the present case as to the consequences following the non‑compliance of the mandatory provisions of law in effecting the arrest and seizure on the goods seized, but on the question of the guilt of the appellant or more appropriately on the question whether the onus lie upon the appellant to prove that he had no intention to smuggle the goods in question as required by section 156, subsection (2). At this stage it will be advantageous to reproduce the provisions of sub section (2) of section 156 which are as follows :‑ "Where currency, gold, silver, precious . stones, ornaments or other manufactures of gold, silver or precious stones, or any other goods which the Federal Government may, by notification in the official Gazette specify are seized under this Act in the reasonable belief that an act to defraud the Government any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized. 1t will be observed that the onus of proof shifts to the accused only when goods specified in the aforesaid subsection are "seized" under the Act. The shifting of the onus is clearly, therefore, predicated by a lawful seizure of the goods under the Act. As the seizure of the goods from the possession of the appellant was illegal, apparently the goods were not seized lawfully under this Act and, therefore, the onus that the goods were not smuggled does not shift to the appellant. The pro secution must, therefore, discharge the onus of proof by positive evidence that the accused intentionally smuggled the goods in Pakistan. In this, in my opinion, the prosecution has utterly failed. I have already discussed above that the appellant disclosed to the Customs Officer that he is a bona fide Afghan national in transit carrying the goods for ultimate export to Afghanistan. The appellant is in posses sion of a valid xermit authorising him to import silver into Afghanistan. The general surrounding circumstances also exclude an intention on the part of the appellant to smuggle the goods into Pakistan. Additionally P. W. Habib Khan who is the witness of the seizure memo. has stated that the Mashirnama was prepared and signed by him on 21st when admittedly the alleged seizure had taken place on 18‑10‑1979. Clearly, therefore, no contemporaneous record was prepared of the seizure by the Customs Officer as is usually done and the benefit of this fact must go to the appellant." The appeal was allowed and the conviction of the appellant was set aside. Two things relating to the provision of section 171 of the Customs Act, therefore, emerge from the observation of the learned Judge. Firstly that the provision with regard to the information in writing to be given to the person arrested or the person from whose possession the goods are seized as contemplated in the section are mandatory and secondly that in case of failure to comply with the provision, the burden to prove that the person has not committed the act of smuggling or the goods seized are not smuggled, does not lie on such person as per provision under section 156(2) of the Customs Act. But the prosecution has to prove that the accused has committed the act of smuggling or the goods seized are the smuggled goods. In the case cited above, since the prosecution had not discharged the burden, the conviction was set aside and the accused was acquitted. With due deference one may not completely agree with the views of his Lordship, but even on the principle as laid down by him, the facts of each case are to be examined on its own merits to see as to whether the offence of smuggling is proved or the goods seized are goods to be smuggled or not. In another case reported in Shaukat Hussain v. Zulfiqar Ahmed and 2 others (P L D 1981 Lah. 13) the following observation has been made in para. 7 of the judgment "The spirit of the Customs law is that unless there was a danger that the goods might be removed before a search warrant could be obtained, no search could be carried out except upon a search warrant obtained from a Magistrate. This has been made a condition precedent to making a search under section 163(I). But there is nothing in the F.

1. R's. to explain as to why no effort was made to obtain a search warrant. The presence of a Magistrate 1st Class by the name of Mr. Abdul Matloob Khan in the raiding party goes to show that access to a Magistrate was possible. In that case the pre‑condition to the search is not satisfied and the search carried out without a warrant is in contravention of section 163(1). The presence of the Magistrate can not be said to obviate the necessity of obtaining a search warrant, because a Magistrate when issuing a warrant has to exercise his judicial power as a Court but he does not do so when he is simply witnessing the search. It is not the respondent's case that the Magistrate had gone to direct the search in his presence under section 105, Cr. P. C. In Shaheen Calico Printing Works v. Mumtaz Ali, it was held :‑ I am afraid the case (Clarke v. Brajendra Kishore Roy Choudhry and another I L R 39 Cal. 953) is distinguishable, for, in that case, the Magistrate had issued the orders while in the instant case the Magis trate acted only as an attesting witness. Therefore, the action of search was not in accordance with the provisions of section 162: In yet another case 1qbal Akhtar v. Muhammad Mushtaq where the Magis trate had accompanied the search party, it was held that recourse to Magistrate being possible, under section 162, Customs Act, power under section 163(1) could not be exercised at all." In para. It of the judgment, it was further observed that :‑ "The question of the legality of a search and seizure of goods in similar circumstances had come up before a Division Bench in S. M. Yousuf and others v. Collector of Customs and others. Both the learned Judges came to the view that the same was not in accordance with law but while one of them held that the jurisdiction of the Court was not dependent upon the legality of the search, nor the jurisdiction of the Customs Department to adjudicate upon the matter in spite of the illegalities of the search taken away and that as such the goods could not be released in favour of the person from whom it had been seized, the other learned Judges, dissenting from this view expressed that :‑ "Therefore, when the petitioners have come to this Court promptly after the seizure of the goods and we have granted them a declaration that the search and the seizure were both illegal. I am unable to justify the refusal to restore the goods on the principle that in a sub sequent proceeding which may take place, these goods might constitute evidence of contravention of the Sea Customs Act. Such a refusal might nullify the Constitutional guarantee which a citizen of this country has under Article 2 of the Constitution to enjoy the protection of law and to be treated in accordance with law, and only in accordance with law." In the case referred to in this judgment S. M. Yousuf and others v. Collector of Customs and others (P L D 1968 Kar. 599) there was difference of opinion. The matter was referred to a third Judge who agreed with the latter view and directed that the goods in the circumstances have to be restored to the petitioner. These cited cases obviously relate to the proceedings before adjudication by the Customs authorities or trial by the Special Judge. The search and the seizure were challenged promptly before the adjudication and trial and, as such, does not reflect upon the jurisdiction of the Court or the consequences of the trial. C. P. No. 80 of 1981 (Abdul Rauf and another v. The State and another) was accepted on the ground of non‑compliance of section 171 of the Customs Act, and reliance was placed on Azizullah v. The State (P L D 1981 Kar. 250). The matter has since been before the Supreme Court and the leave has been granted. The question whether the illegality committed in course of investigation with regard to the arrest etc. affects the trial and the jurisdiction of the Court, was examined in (Commander) M. S. M. Ibrat v. The Commander‑in‑Chief, Royal Pakistan Navy and 2 others (P L D 1956 S C (Pak.) 264). At page 272 late Chief Justice Mr. Justice Muhammad Munir has expressed himself in the following words "The question whether the person of the appellant was delivered to the naval authorities without any proper authority need not detain us long. What we have said above in rejecting the contention that the Special Judge was bound to proceed with the case is applicable mutatis mutandi to the contention that the Special Judge could not have delivered the person of the appellant to the naval authorities. Any construction of the Criminal Law (Amendment) Act which would take away from the Special Judge the power to deliver the appalant to the naval authorities for trial would bring us directly in conflict with section 12 of that Act. Under section 50 of the Naval Discipline Act the appellant could be arrested by the naval authorities while he was on bail, and we can discover nothing in the law against such arrest. But apart from this, the mere fact that a person has been arrested in an unautborised manner does not, generally affect the jurisdiction of the Tribunal before which he is brought for trial. In ex parte Susanna Scott the accused after committing a crime in England had absconded and was arrested in Belgium by a British Police Officer and brought back to England where he was arraigned before a Court. The ill.‑ gality of his arrest having been set up by the defence as a bar to the trial, Lord Tentherden C. J. rejected the plea, saying. "The question, therefore, is this, whether if a person charged with a crime is found in this country it is the. duty of the Court to take care that such a party shall be amenable to justice or whether we are to consider the circumstances under which he was brought here : I thought, I still continue to think, that we cannot inquire into them. Dealing with a similar objection Lord Cockbura, C. J. in his charge to the jury in The Queen v. Nelson and Brand said :‑ "Suppose a man to commit a crime in this country say murder, and that before he can be apprehended he escapes into some country with which we have not an Extradition Treat, so that we could not get him delivered upto us by the authorities, and suppose that an English Police Officer were to persue the mala factor, and finding him in some place where he could lay hands upon him and from which he could easily reach the sea, got him on board a ship and brought him to England, and the man were to be taken in the first instance before a Magistrate, the Magistrate could not refuse to commit him, if he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said `Nay' you are here ; you are charged with having committed a crime and you must stand your trial. We leave you to settle with the party who may have done an illegal act in bringing you into this position ; settle that with him'." The import of the detailed judgment of his Lordship is that the illegality of the arrest would not vitiate the trial or affect the jurisdiction of the Court. The effect of the illegality committed in the course of investigation with regard to arrest, search and seizure was examined in greater detail in H. N. Rishbud and another v. State of Delhi (A I R 1955 S C 196). After a detailed discussion of` the provisions of law with regard to investigation, cognizance and trial of a criminal case, inter alla, it was observed in para. 9 that :‑ "The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable case. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceed ings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190; Cr. P. C. as the material on which cognizance is taken. But it cannot be maintained that valid and legal police report is the foundation of the Jurisdiction of the Court to take cognizance, section 190, Cr. P. C. is one out of a group of sections under the heading "conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other section of the group under the same heading i.e. sections 193 and 195 to

199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of section 190(1), (whether it is the one of the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537, Cr. P. C. which, is in the following term is attracted `Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision ,on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission, or irregularity, has in fact occasioned a failure of justice.' If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well‑settled as appears from the cases in Prabhu v. Emperor A I R 1944 P C 73(c) and Lumbhardar Zutshi v. The King A I R 1950 P C 26(d). These no doubt relate to the illegality of arrest in the course of investiga tion while we are concerned in the present cases with the illegality with reference to the machinery for collection of the evidence. This distinction may have a hearing on the question of prejudice or mis carriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage o: justice has been caused thereby." The two cases referred to in this judgment are, A I R 1944 P C 73 wherein it has been observed that when the accused was presented for trial before the British Indian Court, he had been validly surrendered to that Court by the sind Authorities and, therefore, the proceedings before that Court were regular and in order and the validity of the trial and conviction of the accused could not be affected by any irregularity in his arrest. In the second case A I R 1950 P C 26 where there is an order of the Presidency Magistrate to investigate a non‑cognizable case, but the Magistrate before making such an order does not, as he is bound to do, comply with the requirement of section 302(I), Cr. P. C. such a fault in procedure cannot deprive the Magis trate of his jurisdiction to try the accused. In the case cited in A I R 1955 P C 26, the effect of non‑compliance of section 5(4) of the Criminal Law (Amendment) Act was examined which was considered to be a mandatory provision. The crux of the discussion is that non‑compliance of the manda tory provision with regard to the information in writing as contained in section 171 of the Customs Act and precedent to the trial, would not affect or vitiate the trial of the case or affect the jurisdiction the Court in any manner. The cases have to be decided as brought before the Court on their own merits and if prosecution succeeds in proving the offence in accordance with laws the accused will be dealt with accordingly and would not be let off only on the ground of an illegality committed in the investigation or for non‑ compliance of any provision of law relating thereto. In Aziz Maseeh v. The State (P L D 1976 Lab. 53) in para. 6 of the judgment it was observed as under "The investigation in this case was conducted by Muhammad Latif Shah, P. W. who was Sub‑Inspector of Police without obtaining a specific order in that behalf by a Magistrate Ist Class. According to the provision in section 5‑A of the Pakistan Criminal Law Amendment Act, 1958 no Pblice Officer of a rank below that of an Inspector could investigate such a case without a specific order of a magistrate 1st Class. The objection raised by the learned counsel for the appellant is that since the provision in section 5‑A of the Act had been violated in the instant case and the report under section 173, Cr. P. C. after necessary investigation was submitted by the Police Officer of a rank of Sub‑Inspector without obtaining any specific order from a Magis trate of 1st Class authorizing him to do so the trial of the appellant is vitiated in law. This question was raised in The State v. Muhammad Hussain P L D 1968 S C 265 but the Supreme Court left it open because the appeal was dismissed in that case as incompetent. In' the case of Abdul Noor v. The State P L D 1958 Dacca 165, Walizar v. The State P L D 1968 Kar. 204 and Rlshbud v. The State of Delhi A I R 1955 S C 196 and others mentioned in the judgment of the afore mentioned case The State v. Muhammad Hussain, it was held that in such circumstances, the trial is not vitiated, but the violation of the legal provision specifying by what Police Officer a case of corruption by a public servant may be investigated is an irregularity failing to be dealt with under section 537 of the Cr. P. C. Therefore, I am of the view that the investigation by Muhammad Latif Shah, Sub‑Inspector Police, without obtaining specific order from a Magistrate of Ist Class in this case has not vitiated the trial of the appellant but the failure in that behalf is only an irregularity curable under section 537, Cr. P. C." In cases of Abdul Noor v. The State (P L D 1958 Dacca 165) and Walizar v. The State (P L D 1958 Kar. 204) and in the judgment of The State v. Muhahmad Hussain it was held in such circumstances that the trial is not vitiated but the violation of legal provision specifying by which Police Officer a case of corruption by a public servant is to be investigated, is an irregularity falling to be dealt with under section 537, Cr. P. C. P L D 1968 Kar. 599 is the leading case on the subject and the reliance on this judgment has been, placed in P L U 1981 Kar. 250 and P L D 1981 Lab. 13, referred to above.', Section 172(a) of the Sea Customs Act corresponds to section 163 of the Customs Act. This provision is a safeguard against the arbitrary action of the Customs Authorities. Certain observations made by the eminent Judges in this case would support the contention that an illegality in the investigation preceding the trial does no invalidate the trial itself: In coming to this conclusion, large number o cases have been cited in this judgment by Mr. Justice Anwarul Haq, as he then was (some of these cases have beets referred to by me in this judgment). In para. 28 of the judgment, it has been observed that "apart from the cases cited by Mr. Shah Jamil Alam, there are several others as well in which a similar view has been taken, namely that any illegality in the investigation preceding a trial does not invalidate the trial itself". In para. 30, it was observed by his Lordship that "it seems to me that in view of the overwhelming weight of authority the prosecution of cite petitioners in a Court of Law could not be held to be vitiated on account of the illegal search and seizure of the goods, and it had to be held that the Court would have jurisdiction to try the offence and the offenders in respect of the goods seized as a result of the illegal search in question." Mr. Justice A. S. Faruqui in para. 4 of the judgment has said that " . ...... he then had been to refer to the various cases which had been relied upon by Shah Jamil Alam, and some others and has, it I may say so with respect, lucidly brought out the ratio of these cases. 1 do not propose to refer to them again. These are contained in paras. 25 and 29 of the judgment of my learned brother. These are cases in which it has been held that even where the investigation was not in accordance with the relevant provisions of law or where the search was not legally carried out or whether the arrest had been illegal it did not necessarily follow that the subsequent trial and conviction of the accused person was vitiated. I am in respectful agreement with this view. But I do think I am called upon in these proceedings which are, no doubt, contemplated by the learned Collector of Customs in respect of these goods which have been seized. In para. 6 of his judgment, the learned Judge said, "It may be noted that in the large number of cases which has been noted in the judgment of my learned brother and in which the proceedings and the trial were held not to have been vitiated were cases where a trial had taken place and a conviction had been recorded. It was in these circumstances that it was held that the investigation or the manner in which the evidence was obtained did not necessarily invalidate the trial. That is so, but I am not called upon to pronounce upon the validity of any proceedings." It is, therefore, clear that both the learned Judges are of the same opinion that illegal arrest or some defect in the investigation would not vitiate the trial. The petitioner in this case went in appeal to the Supreme Court against certain directions made by Mr. Justice A. S. Faruqui with whom Mr. Justice Illahi Bakhsh Khamisani concurred. The State did not file any appeal presumably as they had taken action against the petitioner in view of the observation made by Mr. Justice A. S. Faruqui. However, the observation about the legality of the trial was not challenged. I respectfully follow the said observation. It would be too technical and narrow view of the matter that a person accused of smuggling cannot be tried if no notice as con templated in section 171 of the Customs Act was not served upon him. In the instant case, the appellants were arrested by the Competent Officer under section 161 of the Customs Act. It is not disputed that the arrest of the accused was legal. It is also not disputed that the contraband goods were, recovered from the accused persons. I am, therefore, of the view that a defect in pre‑trial stage unless it affects the jurisdiction of the Court does not debase the entire proceedings. The trial of the accused under the Customs Act is not dependent on the issuance of such notice. Even otherwise, the spirit of section 171 of the Customs Act would be complied with as at the trial, the accused would have sufficient notice of the charge levelled against him, and he: would have sufficient chance to meet the allegation levelled against him by the prosecution. In the result, I am of the opinion that non‑compliance of section 171 of the Customs Act does not affect the jurisdiction of the Court to try the accused and non‑compliance of this provision may be a defect curable under section 537, Cr. P. C. It does not in any way set aside the conviction recoraed against an accused presented before a competent forum. 1, therefore,, see no force in these appeals. The appeals are dismissed but having regard to the facts of the case, I would reduce the sentence to already undergone. With this modification, the appeals stand dismissed. Appeal dismissed.