P L D 1999 Lahore 279 (PLP)

2. The relevant facts are that the petitioner was apprehended by Asad Awan, S.I., F.I.A. Immigration Check Post Airport, Lahore on the basis of a secret information that petitioner would try to smuggle huge amount of Pak currency to Dubai on PK‑

209. He came, secured Boarding Card and booked his baggage, which was subsequently got deloaded and on search an amount of Rs.50,00,000 was recovered therefrom. The F.I.A. accordingly proceeded to register a case against him under sections 156(1), 8, 81 and 82 of the Customs Act, 1969 read with section 5(2) of The Prevention of Corruption Act, 1947. The F.I.A. after investigation of the case found the petitioner involved and accordingly submitted the report under section 173 of Cr.P.C., which through the Special Prosecutor Customs (Punjab), Lahore was forwarded for trial to the learned Special Judge Customs, Lahore.

3. The petitioner moved an application under section 265‑K of the Cr.P.C. which after due consideration and hearing the parties was dismissed by the learned Special Judge Customs, Lahore vide order dated 20‑2‑1998. The petitioner, thereafter, filed the present petition. The same was admitted to hearing and notice was issued to the State, which is represented by Mr. A. Karim Malik, Advocate.

4. It was argued by the learned counsel for the petitioner that S.I. of F.I.A. has no authority to arrest the petitioner and register a case. In this behalf, reference was made to section 185‑A of the Customs Act and particularly to subsection (b). It was added that the 'inquiry was defined in section 4(k) of Cr.P.C. while 'investigation in section 4(1) of the same Code. It was clear from these provisions that submission of challan is not part of either 'inquiry' or 'investigation', therefore, officer of the F.I.A. was not competent to submit the final report under section 173, Cr.P.C. which can only be submitted by a notified S.H.O. while there was nothing on record to show that Riaz Barkat, who made the report under section 173, Cr.P.C. was a notified officer. It was added that if the investigation was conducted not by S.H.O. but by someone else still the result would be notified by S.H.O. as per provisions of section 168, Cr.P.C. It was argued that section 551, Cr.P.C. provided that the police officer superior in rank to the S.H.O. may exercise the same powers throughout the local area but it was only supervisory powers as interpreted by the Courts and did not include power to submit challan. In this. behalf, learned counsel relied on H.N. Rishbud and another v. State of Delhi AIR 1955 SC

196. It was argued that the challan had been submitted in violation of section 185‑A of the Customs Act, therefore, proceedings before the learned Special Judge were coram non judice. In this behalf, reliance was placed on Piru and another v. State 1985 PCr.LJ

276. It was added that non‑compliance of section 192 of the Customs Act rendered the trial against the petitioner without jurisdiction and illegal. In this behalf, reliance was placed on Abdullah Shah and others v. The State PLD 1962 (W:P.) Kar.

633. It was argued that the irregularity was not curable under section 537 of Cr.P.C. In this behalf, reliance was placed on Mrs. Surayya Farman v. The State 1998 PCr.LJ

958. It was added that the powers under section 6 of the Customs Act have not been given to the F.I.A. It was argued that S.I. is legally not incharge of Police Station. In this behalf, the learned counsel relied on Momin Talukdar v. Emperor AIR 1928 Cal.

771. It was added that the F.I.A. could exercise power of seizure and arrest in emergency but in the present case the complainant himself mentioned in the F.I.R. that he had prior information, therefore, there was sufficient time at his disposal to inform the Custom Authorities and the whole proceedings were illegal. In this behalf, reliance was placed on B.D. Cayford v. Masood Ahmad Shahid and another PLD 1964 Kar.

69. It was argued that the matter was not referred to the Custom Authorities under section 195 of the Customs Act and there was no possibility of the conviction of the petitioner, therefore, this petition may be accepted and the case be quashed.

5. On the other hand, Mr. A. Karim Malik, Advocate argued that in the year 1962 section 185‑A was added but the same was omitted in the year 1963. This provision was para materia to section 193(c) of the Sea Customs Act, Ultimately the Customs Act was amended by Prevention of Smuggling Act, 1977.(XII of 1977). The same is para materia to section 190 of Cr.P.C. It was argued that F.I.A. seized the currency being illegally taken abroad by the accused, arrested him, investigated the case and submitted the challan. It was added that side by side the matter was referred to the Customs Authorities for adjudication under the provisions of Customs Act. The same is subject‑matter of W.P. No.16468 of 1995. It was argued that F.I.A. had jurisdiction and authority to deal with the matters in view of the notification. In this behalf, it was added that there was no merit in the argument that F.I.A. was not covered by the police. It was argued that the cases relied by the learned counsel for the petitioner were not relevant because the same either dealt with the old provisions of Customs Act or about the immigration. The learned counsel argued that there was no merit in the arguments advanced on behalf of the petitioner in view of the judgments reported as Muhammad Hassan alias Cheema v. The State 1992 PCr.LJ 1294; Raza A. Khan, Deputy Attorney‑General, Peshawar v. Reghzi Gul 1987 PCr.LJ 1789 and Muhammad Nawaz v. The State 1981 SCMR

479. It was argued that the accused admitted that he was taking the currency abroad. It was added that anxiety of the accused is only to side track proceedings in order to avoid consequences of his crime.

6. I have given my anxious consideration to the arguments, gone through the record and precedent cases. C.B.R. issued notification under section 6 of the Customs Act, 1969 whereby powers of Customs Officers under Customs Act were entrusted to officers of the police. This is to be read with section 3(1) of F.I.A. Act and Item 5 of the Schedule appended thereto. It is clear therefrom that the F.I.A. is competent to register cases under section 156 of the Customs Act. Besides this, the F.I.A. is Federal Police, therefore, notification under section 6 by the C.B.R. in respect of police covers the F.I.A.

7. The matter can be looked from another angle, namely that it is admitted that the case was validly registered by the S.I. of F.I.‑A., Immigration Check Post Airport, Lahore and assuming that its investigation was not strictly in accordance with law. The question would arise whether in such circumstances when the competent Court vested with jurisdiction has taken cognizance, the case could be quashed for alleged defects in the investigation? In my considered opinion such irregularities are covered under section 537 of Cr.P.C. Section 185‑A of the Customs Act, 1969 is para materia to section 190 of Cr.P.C. It is clear from clause (b) of subsection (1) that the Court can even proceed on an information received, therefore, once cognizance is taken the alleged irregularities in the investigation/inquiry and submission of the report under section, 173, Cr.P.C. are legally of no consequence. The trial is to be concluded on merits.

8. The learned counsel for the respondent argued that the words in clause (a) of subsection (1) of section 185‑A 'by an officer incharge of police' are wide enough to cover the submission of report under section 173 by the Incharge Police Station F.I.A.

9. I have not concluded this judgment when legal question of effect of irregularity, defect in investigation came for consideration in Another matter. Rana Muhammad Arif Khan, learned Additional Advocate‑General appeared for the State and he rendered valuable assistance. He referred the long chain of decided cases starting from H.N. Rishbud and another v. State of Delhi AIR 1955 SC

196. It was Anti‑Corruption case wherein it was held with reference to sections 190, 193, 195 to 199 and 537 of Cr.P.C. that defect or illegality is investigation has no direct bearing on the competence or procedure relating to cognizance or trial. The appeal filed by the accused was dismissed. He in this behalf referred to Abdul Noor alias Nur Meah v. The State PLD 1958 Dacca 1.45; Walizar and another v. The State PLD 1960 (W.P.) Kar. 204, Manzoor Elahi v. the State PLD 1960 (W.P.) Kar. 607; Ghulam Hadier and 7 others v. S.H.O. City Police Station Quetta and 9 others PLD 1989 SC 479 and then to the judgment " in the case of The Crown v. Mehar Ali PLD 1956 FC 106, wherein investigation under section 161, P.P.C. committed by a central Government employee was held by the Inspector of Sindh Anti-Corruption Police. It was held that even if the, investigation is held irregular still it will not be sufficient to deprive the Special Magistrate of jurisdiction or otherwise affect the validity of the proceedings in the trial. There is no purpose to refer further precedents in view of the latest‑judgment of my learned brother Ch. Ijaz Ahmed, J. in the case of Muhammad Ramzan v. Muhammad Iqbal Sub‑inspector Police, District Kehari Mitroo and another 1998 PCr.LJ 828 where my learned brother after exhaustively examining the law on the point held 'that illegality committed in the course of investigation does not affect the competence and the ,jurisdiction of trial Court'. I may also refer judgment reported as M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101.

10. It is clear from the above precedents that irregularity or defect in investigation is of no legal consequence after the Court of competent jurisdiction has taken cognizance of the matter. This is for the following reasons that‑‑ (a) the Court is competent to take cognizance of an offence whether under Penal Code or Customs Act even on information. Now assuming that the report under section 173, Cr.P.C. has been forwarded by a person not competent but that can serve as information, therefore, the Court was competent to take cognizance both under section 190 of Cr.P.C. as well as provisions of Customs Act. The only requirement is that the Court must have jurisdiction to try the offence; (b) these procedural irregularities in the investigation are curable under section 537 of Cr.P.C.; and (c) the procedure is merely directory in nature and not mandatory '

11. The whole scheme of Codified Law including Cr.P.C. and Customs Act is that the accused should not escape liability of his criminal act merely on account of defect in investigation. This is the rational behind making provision C of section 190 of Cr.P.C. and 185‑A of the Customs Act. This has to be given effect otherwise it would be giving a licence to the unscrupulous criminals to escape the punishment. It is also necessary to keep the Investigating Agencies under control otherwise it is not difficult to conceive, with the moral fibre on lowest ebb, Investigating Officer intentionally committing irregularities here and there just to save the accused.

12. Lastly, resort to quashment is exception that too at preliminary stage in ID view of Kh. Nazir's case AIR 1945 PC 18; Shehnaz Begum's case PLD 1971 SC 671; 1997 PCr.LJ 124; PLD 1993 SC 399 and PLD 1994 SC 281 as noted by my learned brother Ch. Ijaz Ahmad, J. in the case of Muhammad Ramzan (supra).

13. The upshot of this discussion is that there is no merit in this petition. The same is dismissed. N.H.Q./K‑83/L Petition dismissed.