P L D 2000 Lahore 108 (PLP)

The appellant was convicted by the teamed Special Judge, Customs, Lahore, under section 156(l)(8) of the Customs Act, 1969 and was sentenced to undergo 10 years' R.I. and pay a fine of Rs. 1,00,000 and in case of default to judgment dated 1‑371999. The brief background of the matter is that the appellant entered Executive Lounge, Lahore on 24‑6‑1998 for proceeding to Amsterdam by PK‑791 He reported for Boarding and P.I.A. Staff issued him Boarding Card. He was cleared by A.S.F_ and Customs Staff. He was intercepted by F.

1. A. Staff and on search 11 plastic bags, wrapped round his legs and containing 4115 Grams of Heroin were recovered. The samples were taken and notice under section 171 of the Customs Act. 1969 was served to him. He was arrested and case vide F.I.R. No.9 of 1998 Exh.P.A./l registered by Police Station F.I.A. Immigration Airport, Lahore, on the same day i.e. 24‑6‑1998 at 8‑20 a.m. The case was investigated and challan against the appellant and others submitted. The prosecution examined in all 6 P.M. including complainant, who appeared as P.W.4. Thereafter, statements of the appellant, his co‑accused Tariq Aziz and Muhammad Rizwan Subhani under section 3421, Cr.P.C were recorded. The accused examined Khalid Waqar, Security Officer, A.S.F. as D.W.1 and himself appeared as D.W.2 under section 340, Cr.P.C. The appellant was convicted while his co‑accused were acquitted by the learned Special Judge Customs,, Lahore. Now this appeal, which came up for limine hearing on 15‑3‑1999. notice was issued to the State, which is represented by Kh. Saeed‑uz‑Zafar, learned Deputy Attorney‑General.

2. The prosecution evidence proved the guilt of the appellant clearly and beyond any doubt, therefore, Syed Iftikhar Hussain Gilani, learned counsel for the appellant, did not challenge the finding on merits. He simply challenged the conviction on the ground that P.W.4 was legally not competent to apprehend and search the appellant in view of the provision of section 159 (1) of the Customs Act, 1969. It was added that the provision was mandatory, therefore, non‑compliance or violation vitiated the entire trial and the appellant was entitled to acquittal. The learned counsel in this behalf referred to statement of Munir Akhtar Shah, P.W.4 where he admitted that he did not give any option to the accused to get searched from the Magistrate or a Gazetted Officer of the Customs Department. The learned counsel in this behalf, relied on S.M. Yousuf and others v. Collector of Customs and others (PLD 1968 Karachi 599), Shaukat and Hussain v. Zulfiqar Ahmad, S.H.O., Police Station Mozang and 2 others (1983 PCr.LJ 676), Muhammad Nadeem v.. The State (1989 PCr.LJ 1234), Miss Beatrice Ben v. Government of Pakistan (PLD 1989 Lah. 435), Farid Khan v. The State (1993 PCr.LJ 500) and Syed Abdul Nabi v. The State (PLD 1988 Lahore 146).

3. On the other hand learned Deputy Attorney‑General argued that the provisions of section 159 were para materia to the provisions of section 171 of the Customs Act, 1969, which were held to be merely directory in nature and not mandatory, In this behalf, he relied on Abdur Rauf Khan v. Collector, Central Excise & Land Customs, Peshawar and 3 others (1980 SCMR 114) and State through Deputy Attorney‑General, Peshawar v. Banda Gut and 2 others (1993 SCMR 311). The learned Deputy Attorney‑General also referred to the statement of the appellant under section 342, Cr.P.C. and particularly Questions Nos.3, 4 and 7 to argue that he was apprehended from the Executive Lounge. Lahore, served with a notice Exh.P.O. under section 171 of the Customs Act, 1969 and he knew that substance recovered was Heroin.' It was argued that the whole scheme of the Codified Law was that if after going through the entire evidence on record the Court is convinced that the offence was committed then the accused was not to let off on mere technicalities. However, if the Court was convinced that the guilt was not brought home and there was doubt then of course the accused was to be acquitted. It was added that there is no question of false implication in this case, as alleged by the appellant. In this behalf, he referred to Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). The technicalities would only matter if amounted to miscarriage of justice and not otherwise. In this behalf, reliance was made on the judgment in the case of State v. Umar Hayat (PLD 1992 SC 393). It was argued that the rules of procedure was meant to advance justice and to preserve rights of litigants and these were not meant to entrap them into blind comers so as to frustrate purpose of justice. In t ' his behalf, reliance was placed on Mir Mazar v. Azim (PLD 1993 Sit 332), Allah Ditta v. Barkat Ali and 3 others (1992 SCMR 1974), Dr. Zia Suleman Farooqi v. Punjab ‑Public Service Commission and others (PLD 1994 Lahore 55) and . Nazir Ahmad and another v. Muhammad Tahir and another (PLD 1992 Lahore 89). It was added that the Courts while administering justice must keep in view the Injunctions of Islam, Constitutional provisions and Charter of Human Rights. In this behalf, reliance was placed on Amer Habib v. Senior Superintendent of Police and others (1995 CLC 29). It was argued that the technicalities should not be allowed to stand in the way of justice and for the purpose in view of sections,529 and 530, Cr.P.C. were acted. In this behalf, he relied on Sultan Mir and 18 others v. Umar Khan and 10 others (1992 SCMR 1206), Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCMR 1774) and Imtiaz Ahmad v. Ghulam Ali and 2 others (PLD 1963 SC 382). It was added that the provisions of section 159 of the Customs Act, 1969 were directory in nature and not mandatory as per rule laid in the judgment in the cases of The State v. Sh. Ghulam Nabi (PLD 1988 Azad J&K 33), Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan (PLD 1997 Karachi 62) and Government of Punjab v. Dr. Ijaz Hassan Qureshi (PLD 1985 SC 28). it was argued that the failure on the part of the Investigating Officer to follow the prescribed procedure will not be of any legal consequences and render decision of the Court invalid or illegal. In this behalf, reliance was placed on Maj. Shujait Ali v. Mst. Surraya Begum (PLD 1978 SC (AJ&K) 118). It was added that the provisions of section 159(l) of the Customs Act, 1969 were akin to that of section 103 of Cr.P.C. and failure was of no legal consequences as held in the recent judgment in the case of Muhammad Jamil v. The State (PLD 1996 Lahore 190). It was argued that while interpreting the provisions of law intention of the Legislature was to be seen. It was added that the judgment in the case of S.M. Yousuf and others (supra) was under the Sea? Customs Act (VIII of 1878) while the case of Syed Abdul Nabi (supra) simply followed the view in the case of S.M. Yousuf and others (supra). The judgment in the case of Muhammad Nadeem (supra) was in a bail matter. Similarly the other judgments were not relevant. It was maintained that there was not a single judgment of the Hon'ble Supreme Court in the field holding that the provisions of section 1,59(l) of the Customs Act, 1969 were mandatory and non‑compliance vitiated trial otherwise legal.

4. The learned counsel for the appellant while summing up the arguments n the point that failure of procedure under section 159 rendered the trial illegal referred to the judgment in the case of Government of Sindh v. Abbas Ahmad, Advocate and 2 others (1994 SCMR 923).

5. I have given my anxious consideration to the arguments, gone through the record, relevant provisions of ‑law and precedent cases. The 'argument is based on section 159(l), of the Customs Act, 1969 (hereinafter to be referred as Act of 1969), therefore, first of all I would refer to the same. it reads as under: "159(l) When any officer of customs is about to search any person under the provisions of section 158, the officer of customs shall inform such person about his right to be taken to a gazetted officer of customs or Magistrate, and if such person so, 416sireg takes him without unnecessary delay to the nearest gazetted officer of customs or Magistrate before searching him, and may detain him until he can be so taken.

6. The learned counsel for the appellant as noted above has relied on the following judgments:‑‑ (I) S.M. YOUSUF (supra). In this case the Customs Authorities searched the premises of the petitioner and seized cloth etc. The petitioners challenged this action of the Customs ‑ Authorities on the ground of violation of section 172(A), of the Sea Customs Act, 1878. The judgment was‑ delivered by Full Bench. Mr Justice S. Anwarul Haq, as his Lordship then was, after referring to:‑‑ (1) The Crown v. Nur Alain (PLD 1955 Lah. 667), (2) The Crown v. Subhan (PLD 1956 BJ 9), (3) Kuruma V. The Queen (PL6 1951 PC 32), (4) Radha Kishan v. The State of Uttar Pradesh (AIR 196,3 SC 822), (5) Mst. Sadan v. The State (PLD 1965 BJ 12), (6)? Prabhu v. Emperor (AIR 1944 PC 73), (7)? The Crown v. Mehar Ali (PLD 1956 FC 106), (8)? M.S.K. Ibrat v. Commander‑in‑Chief, Royal Pakistan Navy (PLD 1956 SC 264) (9)? Sh. Abdul Majid v. The State (PLD 1958 Kar. 86) (10) Abdul Noor? alias Nur Meah v. The State (PLD 1958 Dacca 145) (11) Din Dayal Sharma v The State of U.P. (AIR 1959 SC 831), and (12) H.N. Rishbud and another v. State of Delhi (AIR 1955 S held that the illegality or infirmity attaching to the investigation stage did not vitiate the subsequent trial nor it create any jurisdictional effect in the. trial Court, therefore. dismissed the petitions but Mr. Justice Ilahi Bakhsh Khamisani and Mr. Justice A.S, Faruqui held that as the search and seizure of the was without lawful authority, therefore, the petition was accepted and the goods were restored to the petitioners with a direction that the same shall not be sold 0r disposed of. The perusal of the judgment shows that as far the rule summoned, up on the basis of 12 cases noted above, by Mr. Justice S. Anwarul Haq, there was no difference of opinion amongst the learned Judges of the Full Bench., However, the‑ points of distinction were noted by Mr. Justice Ilahi Bakhsh Khamisani were as under:‑‑ (i)?? The cases dealt with the question of jurisdiction of a Magistrate after final adjudication of the matter and none of the cases related to contemplated adjudication of a proceedings; (ii)? the cases related to the final adjudication by a competent Court of law while the Collector as per judgment in S.A. Haroon v. The Collector of Customs case did not constitute a judicial tribunal; (iii) the Collector while exercising powers under section 167, Item 81 of, the Sea Customs Act had no power to try the petitioners. All that he could do was to confiscate the goods, which cannot be, construed analogous to a trial of an accused before the Magistrate; (iv) when application under section 491, Cr.P.C. (Habeas Corpus Petition) filed by a person who has been illegally and unauthorisedly Arrested, but is not? before a Court of competent jurisdiction, the only course, open up to the High Court was to set the person at liberty. The argument that the such person would be needed in a contemplated ??????? criminal proceedings will not come in the way of his release; and (v) the most important reason was noted that all the cases related to ?????? criminal offences and deal with under, Cr.P.C. while in the case in hand the extraordinary jurisdiction of High Court under Article 98 of the Constitution was invoked. It was held as under: (8) ... ... .. .. The principles for the exercise of the extraordinary jurisdiction vesting in this Court under Article 98 of the constitution are entirely different from the principles on which matters arc adjudicated in accordance with the procedure prescribed in the Criminal Procedure Code'. It is clear from the above that as far criminal cases were concerned there were no dissent between the learned Judges of the Full Ben6h,, therefore, the case supports the prosecution argument. (2)??????? Syed Abdul Nabi and Miss Beatrice Ben (supra). The view is not only against the judgment of S.M.‑Yousuf (supra) and 12 judgments ' noted therein but also against the recent judgments reported as Khalid Mehmood v. The State PLD 1999 Lahore 279, 1998 PCr.LJ 828, 1981 SCMR 1101, PLD 1990 SC 1176, 1992 SCMR 1475, 1994 SCMR 1543, 1995 SCMR 510 and PLD 1996 Lahore

190. Therefore, in view of the rule laid down in the case Pir Bakhsh v. The Ch airman, Allotment Committee and others PLD 1987 SC 145 these cases need not to be followed. I may here refer to case of Pir Bakhsh (supra), that rule of Slate decision Was not inflexible and is not attracted in criminal, fiscal and Constitutional matters: The relevant portion reads as under:‑ There is a distinction in what a case decides generally and as against all the world from what it decides between the parties themselves. Salmond 'on Jurisprudence', Twelfth Edition, at page 175, brings out this distinction in these words:‑‑ 'What it decides generally is the ratio decidendi or rule‑ of law for which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were. no end to litigation and if either party to, a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a, case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle three matters are now res judicata between them and cannot be the subject of further dispute. But the Court's finding will not be conclusive except as between the same parties. Third parties not involved in the original case, however, will not be bound, or will either of the original parties be bound in a subsequent dispute with a third party.' Elaborating further, it is the policy of the Court to stand by the ratio decidendi, that is the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine of rule of stare decisis. This rationale behind this policy is the need to promote certainty, stability, and predictability of the.law. This, however, does not mean that this rule is inflexible. In this context, it will be of advantage to sum up what Homoodur Rahman, C.J., in the case reported as Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), said:‑‑ 'I am not unmindful of the importance of this doctrine but in' spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot standstill nor can we become mere slaves of precedents ........ It will, thus, be seen that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and Constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule. Even the House of Lords has modified its present practice of giving strict adherence to, its precedents. In this connection I would here refer to a Note published at page 77 in the case reported as Lloyd's Bank Ltd. v. Dawson and others (1966) 3 All.‑ER 77, which reads:‑‑ "Before judgments were given in the House of Lords on July 26, 1996, Lord Gardner, L.C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their 'Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present, practice and, while treating former decisions of this house as normally binding" to depart from a previous decision when it appears right to do so. In this connexion they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the. especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House. There are, therefore, exceptions to the rigid adherence to this rule, and I am of the view that this Court being the Court of ultimate jurisdiction has power to review its own judgments. This doctrine should not be confused with res judicata which rests on a different principle. In American 'jurisprudence 2nd Edition, Volume 20, at page 521, the distinction between these two concepts is brought out in these words:‑‑ 'While res judicata applies only when the same parties. or their privies, are involved in the subsequent case as were involved in the prior case the applicability of stare decisis is not affected by the fact that different parties are involved in the case where the precedent was established. Res judicata applies to decision of both law and facts. Stare decisis, on the other hand, is applicable only on questions of law. Res judicata is a rule of law that must be applied, even where the decision binding as, res judicata was erroneous, whereas stare decisis is a judicial policy in which a certain flexibility is inherent, and which, therefore, does not prevent a Court from overruling its prior decision if, upon re? examination thereof, it is convinced that the‑decision was erroneous. It has also been pointed out, as a difference between res judicata and stake decisis, that stare decisis is based upon the legal principle or rule involved in a prior case and not upon the adjudication? which resulted therefrom, whereas res judicata is based upon the adjudication.' Thus, in a given case, it is the thing the Court adjudges, which constitutes estoppel under the doctrine of res judicata, but the reasons which the Court may give for the decision are not in themselves to be invoked as the estoppel under the doctrine, of stare decisis. See Yazoo and M., V,R. Co. v. Adams (190 US ‑1) and Heisler v. Thomas Colliery Co.(26.0 US 2415) 1 . Here lies the 4iptinction Cooley in his treatise 'On the Constitutional Limitations', at page 50 while commenting on accepting adjudged cases as, precedents, quotes Chancellor Kent saying: 'A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been 'made upon solemn argument and mature deliberation, the presumption is in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If‑judicial‑ decisions were to be lightly disregarded, we should disturb unsettle the great landmarks of property. When a rule, has once been deliberately adopted and declared, it ought not to be disturbed unless by a Court of appeal or review, and never by the same Court, except for very urgent reasons, and 'upon a clear manifestation of error and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law. This, in my view, is a very subtle exposition of a precedent being the highest evidence of the law and holds the field so long it is regarded as a good law on the principle of stare decisis. It was thus, clear from the above that a decision becomes an authority in like case and the Judges are bound to follow the same so long as it stand unreversed. There was another very strict condition that the binding effect would disappear if it was shown that the law was misunderstood or misapplied in that particular case. (3). Muhammad Nadeem (supra). This case relates to a bail matter, therefore, not relevant to the present controversy. (4) Abbas Ahmad Advocate (supra). This case is also. not relevant, to the present controversy. (5) Shaukat Hussain (supra). This was again judgment in‑Constitutional jurisdiction and based on S.M. Yousufs case. The same remarks applied. The‑ relevant portion of the judgment reads as under: "The illegality, I am afraid, is not one that can be ignored on, the principle that the jurisdiction of a trial Court is not dependent upon the legality of the antecedent investigation. I am aware of the ruling in Perbhu v. Emperor (AIR 1944 PC 73), Crown v. Nur Alam (PLD 1955, Lah. 667), Crown v. Subban (PLD 1956 BJ 9), M.S.K. lbrat v. Commander‑in‑Chief, Royal Pakistan Navy and others (PLD 1956 SC 264), Kururna v. The Queen (PLD 1957 PC 32) and Sadan v. State (PLD 1965 BJ IZ) which are to the effect that illegality of arrest or investigation could not vitiate the subsequent trial. But I am here not considering the scope of the section 537, Cr.P.C. because no trial has yet taken place. The defect goes to the root of the case itself inasmuch as the search is the pivotal point in the entire case, whether before the Customs Department or the Special Judge.. (6) Farid Khan (supra). It was a bail matter, therefore, not relevant to the present controversy. The rule noted in the case of S.M. Yousuf (supra) that any illegality or infirmity attaching to the investigation stage did not vitiate the subsequent trial nor it created any jurisdictional effect in the trial Court was laid. In the, case of Probhu v. Emperor (AIR 1944 PC 73) by the Privy Council it was consistently, followed by Hon'ble Federal Court and Supreme Court as was clear from the cases noted in the judgment of S.M. Yousuf (supra).

7. The other limb of the argument of the learned counsel for the Appellant was that word 'shall' has been used in section 159 of Act, 1969, therefore, the provision is mandatory. The ‑word 'shall' will not. always make a particular provision ‑‑mandatory in nature. In this behalf, reference can be made to the judgments in the cases of Muhammad Saleh v. ‑ The Chief Settlement Commissioner, Lahore and 2 others (PLD 1972.SC 326), M/s. Maple Leaf Cement Factory Ltd. v. The Collector of Central Excise and Sales Tax (Appeal), Lahore and 2 others (1993 MLD 1645) and Abdul Rahim and 2 others v. Messrs United Bank Ltd, of Pakistan (PLD 1997 Karachi 62) The words 'shall' an" 'may' used in a provision are interchangeable as held in the case of Muhammad Saleh (supra). One of the criteria for holding a, provision directory was that when non‑compliance was not visited by a penalty but in the case of Abdul Rahim (supra) in spite of the fact that failure to deposit the decretal amount was to result in the dismissal of the appeal Against the judgment of the Banking Tribunal still it was not treated as mandatory. There was in fact no universal rule to determine as to whether a provision is directory or mandatory in nature. The golden rule, however, for determining whether a particular provision Is directory or mandatory in nature, was to determine the same in the light of the? scheme of a particular statute. The nature and purpose of the provision was to be ascertained the intention of the Legislature. In this behalf, reference can be made to the judgment in the case of Abdul Rahim (supra) 8.?????? It. was argued by the learned Deputy Attorney-General that in the provision of section 17 (ibid) although the word 'shall' has been used, yet it was , held to be directory in nature. He added that similarly in s6ction 103, Cr.P.C. word 'shall' had 'been used as to the joining of two or more respectable. inhabitants of the place was treated as mandatory but now the same had been interpreted as directory, more so, in narcotics cases. He rightly referred to the judgments in the case of Mirza Shah v. The State (1992 SCMR 1475), Muhammad Khan v. The State (1994 SCMR 1543), and Muhammad, Jameel (supra). In my opinion section 103, Cr.P.C. was para materia to section 159 of the Act, of 1969. The purpose of both was to safeguard against further recoveries. There was merit in the arguments of the learned Deputy Attorney? General that if the Court was convinced that the offence had been committed then procedural lapses specially made during it investigation would be of no, legal consequence. The provisions of section 159 of the Customs Act, 1969 are directory in nature, therefore, there was no merit in the argument of the teamed counsel for the appellant that the provision of section 159(l) of Act, 1969 should be treated as mandatory simply because the word 'shall' has been used.

9. The next question was whether any reasonable man would believe and conceive an Inspector rounding up the appellant from the Executive Lounge of the Lahore Airport tying packets containing heroin to his legs and then recover the same. I can say without fear of contradiction that it was not possible. The prosecution has proved its case beyond any reasonable doubt in this behalf. This was besides the point that ‑ although the accused made a statement on oath as D.W.2 yet did not allege any such thing. The intention of the Legislature was that the accused if really involved in criminal case should not escape punishment. This question was considered in the case of Khalid Mehmood v, The State (PLD 1999 Lahore 219). The relevant portion of the judgment reads as under:

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 of sections 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 Investigation 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. 10 The upshot of this discussion is that the appeal is without any merit.? The same is dismissed. N. H. Q. /M‑ 1190/L ????????????????????????? ??????????????????????????????????????????????????????????? Appeal dismissed