1990 P Cr (PLP)

Wahidullah Khan for the State Batoor Khan, Amanat Khan and Wali Khan, appellants herein, were arrested while travelling in Truck No. TRP‑955, which was searched and there was found Ghee of Foreign Origin bearing wording on the carton "Soyabeen Sealed Oil furnished by the people of U.S.A. not to be sold or exchanged" for having allegedly committed the offence under section 156 (1) (89) of the Customs Act, 1969. The Ghee recovered from the truck alongwith the truck were seized under the provisions of the Customs Act and after investigation the case was challaned to the Court of Special Judge. Before that, however, the accused approached Deputy Collector, Customs for summary adjudication of the caseand upon such adjudication it was, however, held by the Deputy Collector, Customs that the seized goods were duly imported for distribution amongst Afghan Refugees and that the goods were neither smuggled into country nor were being taken out of the country. Finding that the case did not come within the mischief of the Customs Act, the Deputy Collector, Customs dropped the proceedings and returned the goods alongwith the truck to their respective owners.

2. Before the trial Judge, however, when the accused appeared they pleaded guilty to the charge and the learned trial Judge while convicting the appellants herein under section 156 (89) of the Customs Act sentenced each one of them to imprisonment till the rising of the Court and also sentenced Batoor Khan to pay a fine of Rs.3,334, Amanat Khan and Wali Khan each to pay fine of Rs.3,333, or in default to further suffer an imprisonment of three months' S.I. Fine was, however, paid by the convicted accused.

3. It is against their conviction and sentences that the appellants have come in appeal to this Court. Mr. Taimoor Muhammad Hayat Khan, Advocate appeared on behalf of the appellants and Mr. Wahidullah Khan, Advocate represented the State.

4. The learned counsel for the appellants submitted that despite the fact that the appellants had pleaded guilty to the charge, they can file this appeal because their prosecution from the very beginning was without foundation and so was conviction as no offence under the Customs Act had been committed by the appellants herein. He relied on 1981 P Cr. L J 986.

5. The learned counsel for the State argued that the order of the Deputy Collector, Customs adjudging that the goods found from the possession of the appellants herein were not smuggled goods was not produced before the learned Special Judge and for that reason no importance can be attached to that order. His other argument was that the said order was subject to the decision of the learned Special Judge under section 179‑A of the Customs Act, 1969, since the appellants herein had pleaded guilty to the charge, their appeal was not maintainable under section 412, Cr.P.C.

6. I have considered the arguments of‑the learned counsel for the parties. The appellants herein were convicted on the plea of guilty but their case is that since no offence under the Customs Act was committed by them, their prosecution from the beginning till the end was without foundation. This plea, in I my opinion, can be put forward by the appellants herein and section 412 Cr.P.C. would not stand in their way. If no offence was committed by the appellants herein then all proceedings with respect to them would be without jurisdiction and such plea,, could be taken by the appellants herein despite the fact that they had pleaded guilty to the charge.

7. There is no evidence on the record to establish that the goods which they were found in possession were smuggled goods and for that reason, agreeing with the learned counsel for the appellants, I hold that no offence whatsoever had C been committed by the appellants herein under the Customs Act, 1969. The learned Special Judge, therefore, had no jurisdiction to proceed with the matter, nor could the appellants herein be prosecuted for what was found in their possession. On jurisdictional point, therefore, this appeal merits acceptance.

8. Accepting this appeal, therefore, I hereby set aside the conviction of the accused‑appellants recorded by the learned Special Judge, as also the sentence awarded to them. The fine recovered from the appellants shall be refunded to them. S.A./995/P Appeal accepted.