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Criminal Appeal No. 305 of 1975, decided on 9th September, 1982.

-----Ss. 156 (1) (89) & 2 (a) read with Notification No. S. R. O. 424 (1), 73 dated 24th March, 1973-Smuggling-Betelnuts-Jurisdiction of special Judge-Betelnuts seized from possession of accused on date prior to date of enforcement of notification by which betelnuts were covered under S. 2 (a) of Customs Act, 1969-Accused, held, could not have been tried under S. 156 (1) (89) and consequently assumption of jurisdiction by Special Judge without lawful autho rity-Conviction set aside.-[Jurisdiction].

P L D 1975 Kar. 482 ; P L D 1978 Kar. 774 ; P L D 1979 Kar. 68 and P L D 1980 Kar. 44 rel.

Muzafar Hassan for Appellant.

Niaz Ahmed Khan for Respondent.

Date of hearing : 9th September, 1982.

The appellant above-named, being aggrieved 'by judgment dated 30th August, 1975 of . the learned Special Judge (Customs and Taxation) Karachi in Case No. 56 of 1974, by which appellant was convicted under section 156 (1) (89) of the Customs Act, 1969 and sentenced to imprisonment till rising of Court and fine of Rs. 50,000 or in default to suffer R. L for a period of 1i years while acquiring co-accused Zafar Ahmed and Khair Muhammad, has preferred the above appeal, on the following facts and grounds :-

2. The facts of the prosecution case briefly stated are, that oh receiv ing information, that a substantial quantity of betelnuts were smuggled from Afghanistan and was dumped in a godown in Shershah Colony. Karachi, belonging to appellant Abdul Qadeem, a search warrant was obtained and the godown was searched on 26th November, 1970 in presence of mashirs and the appellant Abdul Qadeem. On search 74 bags of betelnuts weighing 217 maunds and 8 Boras of Indian Tendu Bidi leaves weighing inscription in transit to Afghanistan were recovered. Since import of Bidi leaves was prohibited and of the betelnuts restricted only to Bonus Voucher, the appellant Abdul Qadeem was asked to produce evidence to prove the lawful importation and acquisition of the recovered goods and he failed to produce any evidence as a result of which he was arrested. A set of import documents and a bill issued by Messrs Carvan Trading Company, Quetta in the name of Abdul Qadeem appellant were produced after his arrest. On investigation it was found, that the con signment covered by the import document was released by the Customs authorities and transported by truck No. Q. A. 2530 on 5th November, 1970. The importer had collected the refund of Octroi duty on 14th November, 1970 having shown the despatch of the said imported consign ment to Quetta. As regards the Indian Tendu Bidi leaves, the appellant Abdul Qadeem produced cash memos. to have been issued by Messrs S. Ali Abdul Aziz and Co. Jodia Bazar, Karachi alleging that the Bidi leaves were purchased by him from Messrs S. Ali Abdul Aziz and Company. On investigation Messrs Abdul Aziz and Abdullah proprietors of the firm did not support the appellant Abdul Qadeem in that respect. Co-accused Zafar Ahmed is said to be the partner in business with Abdul Qadeem and he actively assisted him in the offence and so also the co-accused Khair Muhammad. On completing the investigation, the appellant as well as co-accused were challaned in the Court with the result, that they have been tried on charges as stated above.

3. The prosecution has examined Muhammad Soomar Exh. 2, Nasir uddin Haider Khan Seizing Officer Exh. 3, Shababuddin Octroi Clerk K. M. C. Exh. 4, Ghulam Farid Octroi Inspector Octroi Outpost K. M. C. Exh. 5, Ikhlaq Hussain Octroi Clerk Super Highway Octroi Post Exh. 6, Muhammad Aslam Octroi Clerk K. M. C. Karachi Exh. 7, Naimullah Khan the then cashier in the Octroi Department K. M. C. Exh. 8, Abdul Aziz Exh. 9, Muhammad Abdullah Exh. 10 and Abdul Majeed Khan Investigating Officer Exh. 11. The State counsel has given up the rest of the prosecution witnesses and has closed the case for prosecution.

4. The appellant denied the allegations against him and claimed to have been falsely implicated. The appellant Abdul Qadeem admits, that 74 bags of betelnuts, 8 Boras of Bidi leaves of Indian origin and 28 empty gunny bags on which it was written "I. R. Karachi in transit Afghanistan" were secured from his godown. It was in his possession and the key of which he produced to the Seizing Officer on 28th November, 1970. How ever he claims to have purchased the betelnuts from accused Khair Muhammad of Quetta, who had imported the same under a import licence against Bonus Voucher from Singhapore. According to him, the import documents were given to him by accused Khair Muhammad which he passed on to Customs Officers, who have suppressed the same. According to him, the betelnuts were released to him by the Central Board Revenue in appeal, against the order of Customs by which the were confiscated. According to him, the Bidi leaves were purchased by him from S. Ali Abdul Aziz & Co., who purchased it from Mr. Ashrafi, who in turn obtained the same under a directive issued by Martial Law Authorities. According to him, these were the Bidi leaves of Indian origin and he purchased the same through cash memo. According to accused Zafar Ahmed, the case was false and he denied to have partner in business with appellant Abdul Qadeem. According to him, was made a false mashir by Customs Officer in case State v. Abdul Karim Godra and another in which his evidence was recorded on .27th November 1968 in the Court of City and A. D. M. Karachi, but since the case false, he failed to support the prosecution case with the result, that customs Officers were annoyed with him. He also claimed to engaged an Advocate for appellant Abdul Qadeem and had made effect to get him bailed out with the result, that he was falsely implicated in case. He had produced a certified copy of his deposition in the State v. Abdul Karim Godra and another in support of his contents. According to the accused Kair Muhammad, he had sold 100 bags of betelnuts to appellant Abdul Qadeem, vide Exh. 11-D on behalf of Carvan Trading Company, Quetta. According to him be imported 100 bags of betelnuts from Singhapore under the Bonus Voucher Scheme and the goods were cleared at Karachi Sea Port, vide Customs bill of entry No . 455 dated 3rd November. 1970. According to him, he sold the goods to appellant Abdul Qadeem, vide Credit Bill No. 1074 at the rate of Rs. 370 per maund for Rs. 1,00,825 out of which he received cash only Rs.20,000 and the balance is still payable by appellant Abdul Qadeem. Accordingtohim, he gave the original documents to Abdul Qadeem, who passed on the same to Customs officers, who has suppress ed the documents maliciously. The accused had examined Kaleem Umer Sheikh Exh. 16, Ahmed Sibtain Exh. 17 and Zamiruddin Ahmed Exh. 18 in their defence.

5. Prosecution in support of its case examined P. W. 1 Muhamrr:.,. Soomar, P. W. 2 Nasiruddin Hyder, P. W. 3 Shahabuddin, P. W. Ghulam P. W. 5 Ikhlaq Hussain, P. W. 6 Muhammad Aslan p. W. 8 Abdul Aziz, P. W. 9 Muhammad Abdullah. P. W- ' Abdul Majid Khan, whereas appellant examined, D. W. 1 Kaleem Umer Shah, D. W. 2 Ahmed Sibtain and D. W. 3 Zamiruddin Ahmed. The learned trial Court taking into consideration the evidence adduced before it and for the reasons given in its impugned judgment, while acquitting-co-accused Zafar Ahmed and Khair Muhammad , convicted the appellant as hereinbefore mentioned and consequently appellant has filed the above appeal, on various grounds mentioned in the memo appeal.

6. The learned counsel for the appellant at outset submitted, that his main ground for challenging the impugned judgment is, that the jurisdiction assumed by the Special Judge was without lawful authority, as Notification dated 24th March, 1973 under section 2 (s). of Customs Act, 1969, by which betelnuts were for the first time declared as smuggled article, was not retrospective and as such the same was not applicable the case of present appellant, which related to 28th November, 1970 and consequently appellant could not legally be prosecuted under section 156 (1) (89) of the Customs Act, 1969 and as such jurisdiction assumed by the learned Special Judge, Karachi was without lawful authority and on this ground alone the conviction and sentences awarded to appellant are liable to be set aside. In support of this contention, the learned counsel for the appellant relied upon cases reported in P L D 1975 Kar. 482, P L D 1978 Kar. 774, P L D 1979 Kar. 68, P L D 1980 Kar. 44 and unreported judgment of the D. B. of this Court gave in Cr. Acquittal Appeals Nos. 83 and 120 of 1982. dated 22nd March, 1982.

7. The learned Advocate appearing for the State, at the outset submitted, that in view of the various authorities cited by the learned Advocate for the appellant and in view of the admitted fact that on 28th November, 1970 there did not exist airy notification under section 2(s) of the Customs Act, 1969; in respect of Betelnuts and as such appellant could not have been prosecuted under section 159 (1) (89) of Customs Act, 1969, and consequently he does not support the impugned judgment on this ground alone.

8. I have carefully considered the above submissions made by the learned counsels before me and have gone through the Notification, dated 24th March, 1973 by which betelnuts for the first time were covered under section 2(s) of the Customs Act, 1969 as well as through the above mentioned cases cited by the learned Advocate for the appellant. I find that Notification No. SRO 424(1)/73, dated 24th March, 1973 by which Betelnuts were covered under section 2(s) of the Customs Act, 1969, is I, not retrospective and as such on 28th November, 1970 when Betelnuts in question were seized from the possession of the appellant, appellant could not have been tried for offence under section 156(1)(89) of Sea Customs Act, 1969 and consequently assumption of jurisdiction by the learned Special Judge, Karachi, in question was without lawful authority and in view of this legal position about non-existence of such notification prior to 24th March, 1973 the conviction of the appellant cannot be sustained under section 156(1)(89) of Customs Act, 1969 for offence prior to 24th March, 1973.

9. Therefore, I allow the above appeal and set aside the conviction and sentences awarded to the appellant, by impugned judgment and acquit him. I further direct that since appellant has paid fine of Rs. 50,000 imposed on him and as such the same be refunded to him forthwith.

M. Y. H. Appeal accepted.

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