1999 P Cr (PLP)

(iii) Muhammad Tahir v. The State 1991 PCr.LJ 644.

4. Learned Legal Advisor of the Customs Department raised a preliminary objection on the maintainability of this Constitutional petition with special reference to section 185 of the Customs Act of 1969 appointing Judges by the Federal Government to exercise exclusive jurisdiction under the Act and section 185-A, which deals with taking of cognizance pf offences by the Special Judges under the Act and section 185-B, which lays down that the Special Judges shall have exclusive jurisdiction in matters relating to the Customs Act of 1969 and no Court other than a Special Judge having jurisdiction shall try an offence punishable under the Act. Learned counsel places reliance upon the case of Nasir Ahmad v. The State and another reported in 1981 PCr.LJ page 594.

5. Section 2 (s) of the Customs Act of 1969 defines the word 'smuggle' as follows: -- "'smuggle' means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon." Thus. in order to constitute the offence of smuggling goods must either be brought into Pakistan or taken out of Pakistan in violation of any prohibition or restriction. This is the first element for the offence of smuggling or in the alternative there must be an evasion of payment of customs duties or such other taxes as are leviable upon those goods, this is the second element. Both elements do not have to co-exist. It can be either one or the other and the offence will be deemed to have been committed.

6. The Imports and Exports (Control) Act, 1950 (Act No.XXXIX of 1950) deals with the powers to prohibit or control imports into Pakistan and exports from Pakistan and section 3 provides that:-- "(1) The Federal Government may, by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected with the import or export of such goods, and such order may provide for applications for licences under this Act, the evidence to be attached to such applications, the grant, use, transfer, sale or cancellation of such licences, and the form and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such order. (2) No goods of the specified description shall be imported or exported except in accordance with the conditions of a licence to be issued by the Chief Controller or any other officer authorised in this behalf by the Federal Government. (3) All goods to which any order under subsection (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 16 of the Customs Act, 1969 (IV of 1969), and all the provisions of that Act shall have effect accordingly. (4) Notwithstanding anything contained in the aforesaid Act the Federal Government may, by order published in the official Gazette, prohibit, restrict or impose conditions on the clearance whether for home consumption or warehousing or shipment abroad of any imported goods or class of goods."

7. The Import Policy Order of 1997 in Chapter 3, Section II at Serial No. 10 does not totally prohibit the import of gold but makes it subject to certain conditionalities notified vide Notification S.R.O. 553(1)/97, dated the 28th of July, 1997. Thus, the import of gold at the relevant time was not free but subject to the conditionalities set out in the Import Policy Order of 1997 and the notification mentioned above. According to Chapter 3 of the Import Policy Order of 1997, Item No.10 gold is importable by companies specifically registered and authorised for the purpose by the Ministry of Commerce. The use of the word "company" is to be distinguished from sole proprietorship or firms registered under the Partnership Act of 1932. Company will have the meaning given to it under the Companies Ordinance of 1984 as being a company registered initially under the Companies Act of 1913 or under the Companies Ordinance of 1984.

8. In the Air Way Bill of Lufthansa (Annexure "E") the goods mentioned are electronic, insect-killer, video games, A.B. Flex, and Plan Set. Thus, the cargo booked through Messrs Lufthansa did not include gold which prima facie tends to lend support to the argument of the learned Legal Advisor of the Customs Department that there has been an interpolation in photo copy of the bill of entry (Annexure-G) by interpolation of the word at Item No.4 and changing the original Item No.4 which mentions manual exercises into Item No.5. At any rate it is not the function of this Court to enter into the realm of this factual controversy, which will require investigation and recording o: evidence.

9. It is settled law since 1945 that the police are under a statutory duty under section 154, Cr.P.C. and have a statutory right under section 156, Cr.P.C. to investigate a cognizable offence whenever a report is made to it disclosing the commission of cognizable offence. To quash the police investigation on the ground that the case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with the duties of the police and other Investigating Agencies. Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that judiciary should not interfere with the police or other Investigating Agencies in matters which are within their domain and into which the law imposes upon them the duty of enquiry. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. The Court's functions begin when a charge is preferred before it and not until then. The observation and the ratio decidendi of their Lordships of the Privy Council made in the case of Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 has been consistently approved and followed by the superior Courts of Pakistan.

10. In the case of M.S. Khawaja v. The State PLD 1965 SC 287, his Lordship Mr. Justice A.R. Cornelius, the then Chief Justice of Pakistan was pleased to observe that the investigation stage is outside the purview of the Court. It was again held by his Lordship Mr. Justice Hamoodur Rahman, the then Chief Justice of Pakistan in the case of Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677, that there is no power to quash an investigation. The same view has been expressed by Mr. Justice Mr. Sajjad Ali Shah, the then Chief Justice of Pakistan in the case of Badaruddin v. The Additional Sessions Judge of Jhang reported in PLD 1993 SC page 399. 11 There is no merit in this petition which is dismissed. N.H.Q./N-133/L Petition dismissed