P L D 1978 Peshawar 113 (PLP)

2. On 6-8-75 at 8-45 a. m., a Police party, headed by Mr. Mohammad Amin Khan Khattak. E. A. C., Bannu raided the shop of the accused and recovered smuggled foreign cloth of different varieties as detailed in recovery memo. Exh. PA/1 from his shop for which the accused could not produce any valid document of import or account for its lawful possession. The accused admitted the recovery of cloth but denied the charge that it was foreign made and maintained that he purchased it from Lyallpur.

3. In support of its case, the prosecution examined seven witnesses and as the recovery of the cloth is not disputed. I Will only refer to the statement of Nurul Haq (Y. W.), Deputy Superintendent, Customs whose evidence is mainly relevant for the disposal of this appeal as the evaluation of the cloth is challenged by the learned counsel for the appellant. Nurul Haq (P. W.), Deputy Superintendent Customs during the trial stated that the Police recovered and took into possession the cloth mentioned at serial Nov. 1 to 16 of recovery memo. Exh. P. A./1 in his presence and in the presence of the Magistrate; that on the reverse of the memo. there is his endorsement Exh. P. A./2 to this effect; that the offended cloth was of foreign origin and its market value was about Re. 8,928 and C. I. F. value Re. 2,

232. The perusal of meik Exh. P. A./1 reveals that in all 549 yards of cloth was recovered from the possession of the accused appellant.

4. S. Masoom Shah the learned counsel for the appellant challenged the finding of the trial Court on two-fold ground; firstly that there was no complaint as required by the Customs Act before the Special Judge to invest him with the jurisdiction to take cognizance of the offence and as such the whole trial stands vitiated and secondly that there is no reliable evidence on the record to show that the value of the seized cloth was more than Re. 5,000 so as to make it a criminal offence triable by the Special Judge. Elaborating his first objection the learned counsel c3ntended that under the Customs Act a complaint should have been filed by a person who was authorised by the Central Board of Revenue to do the same and at the relevant time it was the Superintendent of Police of a District who was invested with these powers but in this case he has not filed the complaint. It is evident from the perusal of the record that a challan was prepared by Khalilur Rehman, S. H. O., Police Station City Bannu, which bears an endorsement of the Superintendent of Police to the effect Forwarded to the Special Judge. Customs for trial please." The learned Assistant Advocate General appearing for the State conceded the position that the complaint was not filed by the Superintendent of Police, the person authorised to do the same but argued that during the pendency of the appeal which was filed on 20-12-76, Section 185-A of the Customs Act, 1969 was substituted by section 51 of the Prevention of Smuggling Ordinance 1V of 1977 whereby an officer incharge of the police station has been authorised to file a report in writing before the Special Judge, who could take cognizance of the offence on such report and as an appeal is the continuation of the proceedings the defect, if any, which was of formal nature stood cured. The Ordinance was passed by the Parliament and assented to by the President on the 5th of May, 1977 and became Act XII of 1977 and was enforced throughout Pakistan from the 16th of May, 1977. The Customs Act, 1969 was earlier amended by the Finance Act L of 1973 and new section 185-A was added, subsections (l) and (6) of section 185-A relevant for resolving the controversy are being reproduced: - 5. 185-A. Offences to be tried by Special Judges.-(1) The Federal Government may, by Notification in the official Gazette, appoint as many Special Judges as it may consider. necessary, in this section referred to as Special Judge, and where it appoints more than one Special Judge, shall specify in the notification the territorial limits .within which each one of them shall exercise jurisdiction. (2) ............. . (3) ............. . (4) (5) ........... (6) A Special Judge shall take cognizance of and have jurisdiction to try, an offence triable under subsection (3) only upon a complaint in writing made by such officer of Customs, or such other parson invested with the powers of an officer of Customs, as may be authorised by the Central Board of Revenue in this behalf, by a general or special order in writing. A plain reading of subsection (6) of S. 185-A would show that the Special Judge could take cognizance of an offence any have the jurisdiction to try the same, only, upon a complaint in writing made by a person invested with the powers of an officer of the Customs in this behalf by the Central Board of Revenue and according to Notification No. 14(8) L & P (73), dated 26-7-75 Superintendents of Police were only authorised by the Central Board of Revenue to file the requisite complaint. A proper complaint was a sine quo non for the Special Judge to take cognizance of the offence and have the jurisdiction to try the accused. The nominated person authorised to file a complaint is expected to apply his mind to the facts of the case and then reach a finding whether it is to be filed or not, which is evidently lacking in this case. It cannot be said that the endorsement reproduced above by which the Superintendent of Police has forwarded the challan prepared by the S. H. O., for trial to the Special Judge can at all be called a complaint, by the Superintendent of Police. In support of this proposition the learned counsel relied on an unreported judgment of Mr. Justice Abdul Hakeem Khan (as he then was) Ghulam Rasool v. The State (Cr. Appeal No. 51 of 1976), whereby In a similar case his Lordship was pleased to accept the appeal and set aside the conviction and sentence of the appellant as there was no proper complaint by the Superintendent of Police and it only bore an endorsement by him as in the present case. In another case from Lahore High Court reported as Khan Wazir and 3 others v. The State (1) the criminal proceedings pending before a Special Judge were quashed by my Lord Mr. Justice M. S. H. Qureshi as the Special Judge had taken cognizance in that case upon a complaint fled by a Sub-Inspector of Police who was a person not authorised to file a complaint under the Customs Act. The contention of the learned Assistant Advocate-General that the defect in the complaint was of formal nature which stood cured by the subsequent amendment in law and also by the provisions of section 537 (a), Cr. P. C., lacks substance. As in view of the mandatory provisions of law there was no proper complaint by the competent officer as required under subsection (6) of section 185-A of the Customs Act, it being a condition precedent for the Special Judge for his taking cognizance of an offence under the Customs Act. The defect in the purported complaint cannot be cured under section 537 (a), Cr. P. C. also as the section presupposes the existence of such a legal comp laint as could give jurisdiction to a Special Judge to take cognizance of an offence. Once such a complaint is before the Court on which cognizance of an offence can be taken, any error, omission or irregularity therein can be cured under section 537 (4), Cr. P. C. But where the complaint is invalid in law to give jurisdiction to the Court for taking cognizance the criminal proceedings initiated on such a complaint are without jurisdiction and no question of curing any error, omission or irregularity therein at all arises and as such it was a defect not in the form of the requisite complaint but an Illegality which went to the root of the case the strict compliance of which invested the Court with the jurisdiction to take cognizance of the offence similarly, the amendment in law subsequently would not care the illegality which bad vitiated the whole trial as it stood concluded prior to the coming into force of the amendment. When the law requires that a complaint is to be made by a particular officer he is supposed to do it himself and the same cannot be delegated to anyone, particularly a subor dinate as the Legislature makes the jurisdiction of a criminal Court depending upon a complaint in writing by the public servant concerned then he alone is competent to file the same so as to invest the Court with the jurisdiction to take cognizance of the case. I am, therefore, of the view that no proper complaint as required by law was instituted before the Special Judge to invest him with the jurisdiction to try the accused appellant and as such the stands vitiated which cannot be cured by the subsequent amendment in the law nor the requirement of law with regard to the filing of the requisite complaint was procedural in nature so that the subsequent amendment could be given a retrospective effect. Taking up the second contention the learned counsel urged that there is no other evidence to the effect that the value of the smuggled cloth exceeded Rs. 5,000 except the statement of Nural Haq (P. W.), Deputy Superintendent of Customs. This witness had stated "The market value of the offended cloth was Rs. 8,928 and C I. F. value Re. 2,232". Nothing has been brought on the record by the prosecution as to what was the basis of the estimated value of the seized cloth nor there is any material on record to show that the value was verified from the market or appraised by any appraiser or valuer. It was the burden of the prosecution to conclusively prove that the value of the seized article exceeded Re. 5,000 which it failed to discharge. Here too it cannot be conclusively said that the value of the seized goods was more than Rs. 5,000 and as such making the possession of articles a criminal offence triable by a Special Judge. On the view of the matter that has been taken by me in the above paragraphs of this judgment, the appeal is accepted and the conviction and sentence of the accused appellant is act aside. He is on bail and shall stand discharged of the obligations of bail bond. S. Q. Appeal accepted.