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Criminal Appeal No. 7 of 1971, decided on 2nd December 1971.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 27th September 1967, in Writ Petition No. 2073 of 1964).

West Pakistan Criminal Law (Amendment) Act (VII of 1963),

S. 3‑Reference to Tribunal‑Order of reference made by Commis sioner without hearing accused‑Held, illegal.

Home Secretary to the Government of West Pakistan, Lahore v. Jan Muhammad and another P L D 1969 S C 333 fol.

Khalilur Rehman, Advocate‑on‑Record for Appellants.

Rustam S. Sidhwa, Advocate Supreme Court instructed by Ijaz Ali, Advocate‑on‑Record (absent) for Respondents.

Date of hearing : 2nd December 1971.

A case under section lti7‑8/9 of the Sea/Land Customs Act was registered against the appellants, and was referred by the Commissioner, Lahore Division, for trial by a tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963 (hereinafter described as the Act'). The appellants challenged this order by a writ petition in the former High Court of West Pakistan, Lahore, on the ground that the reference was invalid as the appellants were not heard by the Commissioner before the order of reference was made. The writ petition was dismissed. Special leave to appeal was granted by this Court to the appellants on the 20th of February 1968, as in the meantime a full Bench of the High Court held in the case of Jan Muhammad v. The Home Secretary, West Pakistan, that a reference of a case to the tribunal for trial of an accused person under section 3 of the Act, without giving him an opportunity to show cause against it, was illegal. The same case came up before this Court in Civil Appeal No. 12 of 1968, in which the view of the full Bench has been affirmed by this Court by its decision reported as Home Secretary to the Government of West Pakistan, Lahore v. Jan Muhammad and another (PLD1969SC333).

Another point ‑on which leave to appeal was granted, was that the Sea Customs Act, which was a Central enact ment, provided a, special forum for trial of the offences under the Act, and that the West Pakistan Criminal Law (Amendment) Act, 1963, being a Provincial Act, which provided a different forum for the trial of the same offences, must give way to the Central Act to the extent of its repugnancy with the latter. The West Pakistan Criminal Law (Amendment) Act has since been repealed, and its conflict with the Central Act is no longer a live issue. In any case, it is an academic issue so far as this case is concerned, because the reference of the appellants for trial under the Act has to be set aside as illegal in view of the decision of this Court in Civil Appeal No. 12 of 1968 cited above as they were not heard by the Commissioner before lie made the order of reference against the appellants, under section 3, for their trial by the tribunal under the Act.

The result is that this appeal is accepted. The case of the appellants will be laid before the trial Magistrate for trial in the ordinary criminal jurisdiction.

The learned counsel for the appellants has submitted that the Customs authorities have cleared the goods which were the: subject‑matter of the offence, and any further proceedings in respect of those goods are infructuous. This is a point which the appellants can submit to the trial Magistrate who will have to deal with the case.

This appeal is accepted with the order, as stated above.

Appeal accepted.

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