1975 P Cr (PLP)

MUHAMMAD HALEEM, J.‑‑The respondent, who is a driver of truck No. KAU 5596 was tried alongwith Dodo for carrying controband goods in his truck on 19th September 1969 at 2‑30 a. m. Dodo, however, died during the pendency of the trial and it was Abdullah who was ulti mately acquitted by the First Class Magistrate, Thatta vide judgment dated 28th April 1970.

2. According to the facts repealed, Umedali S. D. I. received secret information on 18th September 1969 that contraband goods would be transported from Gharo to Karachi via Sakro road. Accordingly he arranged 'nakabandi' on the road near the bridge of Afin Wah and detained the truck and secured 25 bales of foreign cloth in the presence of mashir Mitho Khan and Walidad. Thereafter he lodged a report at 3 a. in. the same day on behalf of the State registering the case against them under section 167 (81) of the Sea Customs Act, 1878, hereinafter referred to as the Act, and after investigation, the S. D. I. submitted the challan in the Court of S. D. M. Thatta. At the trial, the jurisdiction of the Court was assailed and, therefore, the learned Magistrate framed the following issue: "Whether the Court has got jurisdiction to try this case without any complaint made in writing by Custom authorities ? and after hearing the parties he decided the issue in the negative and acquitted the respondent. In acquitting him, the learned Magistrate relied on the case of State v. Hamtho (1968 P Cr. L J 1116) which judgment was upheld by the Supreme Court while refusing leave, vide The State v. Hamtho (1971 S C M R 626).

3. The State has appealed against the acquittal relying on the decision of the Supreme Court in Saleh Muhammad v. The State (P L D 1969 S C 461). In that case, the Assistant Inspector of the District Anti‑corruption Bureau, Barisal obtained a search warrant and seized 300 bags of bidi leaves from the godown of Saleh Muhammad and also some 59 bags of bidi leaves from his shop in the same town. Thereafter he submitted a charge‑sheet against the appellant under section 167 (81) of the Act for being in possession of smuggled Indian bidi leaves. In this case too a formal F. I. R. was recorded at the instance of the same officer at Kotwali Barisal on 1st October 1964. While the case was still pending a revision petition was moved in the High Court at Dacca for the quashment of proceedings. It was contended before the High Court that the S. D. O. had no jurisdiction to take cognizance of the case in view of section 6 of the Imports & Exports (Control) Act; 1950. The case was disposed of by the High Court on the basis that till then the S. D. O. had not at all taken cognizance of the offence, though factually this was not correct as the record clearly indicated that the S. D. O. had taken cognizance of the case under section 167 (81) of the Act. On appeal to the Supreme Court the same contention was agitated as was raised before the High Court. S. A. Rahman, J., who delivered the judgment of the Court, repelled that argument and, observed as under :‑ "The short answer to this contention is that the prosecution has not chosen to make a charge against the appellant under section 5 of the Imports & Exports (Control) Act at all. They have confined themselves to a prosecution for an offence falling within sec tion 167 (81) of the sea Customs Act, which is a cognisable offence, and (or whose prosecution no complaint by a Customs Officer is at all necessary, under the law. Mr. Asizuddin Ahmed found it difficult to controvert this position. It is, therefore. clear that sec tion 6 of the Imports & Exports (Control) Act, 1950, is not at all attracted to the case and the argument, that the S. D. O. has jurisdic tion to proceed in the matter, is entirely misconceived. The appeal fails and is hereby dismissed." Again, in another case (State v. Hamtho) which was an appeal against acquittal, it was held ‑by the High Court that the Magistrate could not take cognizance of an offence under section 167 (81) of the Act upon a challan submitted by a police officer. Being thus aggrieved, the State filed a petition for leave to appeal, but the Supreme Court refused to grant leave and held as under :‑ "Having examined the relevant provisions of the Land Customs Act and the Sea Customs Act, we are unable to agree with this contention. It is now well settled that where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure. The learned counsel has not been able to show us any provision in the Sea Customs Act authorising Police Officers to send up persons accused of contravention of the provisions of the Sea Customs Act for trial under the Criminal Procedure Code." We may respectfully state that there are two view on the subject, which controversy can only be resolved by the Supreme Court. In the circumstances, the better course would be to dismiss the appeal and leave the aggrieved party to agitate the issue before the Supreme Court. We order accordingly. The respondent is on bail. His bail bond stands discharged. Orders accordingly.