P L D 1982 Lahore 120 (PLP)

IRSHAD HASSAN KHAN, J.‑This writ petition has been filed to challenge the conviction and sentence of the petitioner to five years' rigorous imprison ment and award of two lashes under section 156(1)8 of the Customs Act.

2. The facts necessary for the determination of the question involved in this writ petition may be briefly stated. The petitioner, an Indian National came to Wahga Border on 18‑11‑1980. He was found in possession of smuggled silver weighing 490 grams, allegedly valued at Its. 1,500 which he had brought from India. The petitioner made confession of his guilt and in consequence thereof, he was convicted by the Special Judge Customs, Lahore, under section 156(1)(8) of the Customs Act by his order dated 14‑12‑1980 and sentenced him to 5 (five) years' rigorous imprisonment and also sentenced to whipping and awarded 5 lashes. On appeal, the conviction and sentence of the petitioner were maintained but the award of lashes was reduced to 2 stripes by an order dated 25‑1‑1981 of the learned Special Appellate Court, Lahore.

3. The learned counsel for the petitioner has assailed the validity of the impugned order and solely pressed the petition on the ground that the entire proceedings before respondent No. 2 were illegal and without jurisdic tion being in violation of Chapter XXII‑A of the Criminal Procedure Code, particularly, sections 265‑C, 265‑D and 265‑E read with section 185‑F of the Customs Act, 1969. The precise submission of the learned counsel for the petitioner is that under the newly‑added sections 265‑C, .265‑D and 265‑E, the prosecution is under an obligation to comply with the requirements laid down therein which, in the instant case, have not been complied with and, therefore, on this ground alone, the trial stands vitiated and the conviction and sentence is liable to be struck down.

4. The learned standing counsel submits in rebuttal that as a matter of fact no prejudice was caused to the accused on account of non‑compliance of the mandatory provisions of section 265‑C, Criminal Procedure Code, inasmuch as, the conviction is based on the confession of the petitioner who pleaded guilty and, therefore, the trial is not affected, in that, any error, omission or irregularity in not complying with the provisions of the Criminal Procedure Code has in fact not occasioned a failure of justice to the petitioner. Mr. Zia Muhamood Mirza further submits that the petitioner is estopped to raise this question in view of the 'Explanation' to section 537, Criminal Procedure Code, which provides that in determining whether any omission or irregularity in any proceeding under the Code of Criminal Procedure has occasioned a failure of justice, the Court shall have regard to the effect whether the objection could and should have been raised at an earlier stage of the proceedings. It is argued that the petitioner made no objection to the course adopted by the learned trial Court nor took any such objection before the Special Appellate Court and, therefore, the irregularity in the mode of trial stood cured under section 537, Criminal Procedure Code.

5. The submission of the learned standing counsel is devoid of any force in view of the mandatory provisions of section 265‑D, which provides that the framing of the charge against the accused shall be made by the Court only if the Court is of the opinion that there is ground for proceeding with the trial after perusing the police report or as the case may be, the complaint, and all other documents and statements filed by the prosecution. In the instant case, the learned standing counsel has faile to show that the charge was framed against the petitioner by the learned Special Judge, Customs, on the basis of any of the material men tioned in section 265‑D. It is apparent from Annexure 'P‑8', the charge has not been framed on the basis of any material as envisaged under the aforesaid section but merely in view of the statement dated 14‑12‑198 of the petitioner. The provisions of section 265‑E, Criminal Procedure Code relating to the reading and explaining the charge to the accused and recording his confession if any, comes into play only when the con ditions precedent laid down in section 265‑D ibid have been fulfilled. In the instant case, as earlier pointed out, the charge was framed in violation of the mandatory provisions of section 265‑D and, therefore, the statement/ confession of the petitioner made before the learned Special Judge, Customs was of no legal consequence. It is well settled that in determining whether an omission or error or irregularity in the conduct of the trial has occasioned a failure of justice to the accused, the Court must look into the substance and not to the technicalities but if the matter relates to the very jurisdiction of the Court, then the omission in the mode of trial is not curable under section 537, Criminal Procedure Code.

6. The trial of the petitioner suffers from material irregularity apparent on the face of record. It is not a case of an error or omission simpliciter in framing of the charge which is capable of rectification but the entire impugned proceedings are liable to be struck down as without jurisdiction. There is no estoppel against statute, and, therefore, we permitted the petitioner to raise the question of jurisdiction of the Special Judge, Customs, notwith standing the fact the petitioner failed to raise this question before the concerned Customs authorities. Reference may be made to 1kram Bus Service and others v. Board of Revenue, West Pakistan and others (1).

7. The argument of the learned standing counsel in view of the dictum of the Supreme Court in Muhammad Hussain Munir and others v. Sikandar and others (2), that the authority which has the jurisdiction to adjudicate upon rights and obligations created under the statute has also the jurisdiction to decide rightly as well as wrongly and, therefore, the impugned conviction is not liable to be struck down, is of no avail in the facts and circumstances of the present case, as .he learned Special Judge, Customs clearly travelled beyond its jurisdiction in framing the charge and, therefore, all subsequent proceeding in consequence thereof are also without jurisdiction. Notwithstanding this, the petitioner has already undergone a sentence of about a year. (1) P L D 1963 S C 564 (2) P L D 1974 S C 139

8. In view of the above, the conviction and sentence of the petitioner under section 156(1)(8) of the Customs Act, 1969 by an order dated 25‑1‑1981 of the Special Appellate Court as well as the order dated 14‑12‑1980 of the learned Special Judge, Customs, Lahore, are declared to be without lawful authority and of no legal effect. The writ petition is accepted with no order as to costs. Petition accepted.