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5. 340(2)‑Customs Act (IV of 1969), S. 156(1) (89)‑Examination of accused on oath to give evidence in disproof of charges or allegations made against him, held, was obligatory for Court.

(b) Criminal Procedure Code (V of 1898)‑

Ss. 340(2) & 537‑Customs Act (IV of 1969), S. 156(1) (89) Examination of accused on oath is a mandatory provision' of law Non‑examination, held, was not an irregularity curable under S. 537, Criminal Procedure Code.

Rizwan v. The State P L D 1986 Lab. 222 rel.

(c) Criminal Procedure Code (V of 1898)‑

‑‑ Ss. 340(2) & 342‑Customs Act (IV of 1969), S. 156(1) (89) Non‑examination of accused on oath renders conviction and sentence illegal and requires retrial of case from stage of examining of accused under S. 42, Criminal Procedure Code.

(d) Criminal Procedure Code (V of 1398)‑

‑‑ S. 340(2)‑Customs Act (IV of 1969), S. 156(1)(89)‑Accused convicted and sentenced without examining him on oath to give evidence in disproof of charges levelled against him‑Conviction and sentence set aside and case remanded for retrial.

Customs Appeal No. 110 of 1935

Khalid Malik for Appellant.

Muhammad Yakub Khan Eusufzai, A.‑G. (Baluchistan) for the

State.

Customs Appeal No. 9 of 1985

Iftikhar Muhammad for Appellant.

Muhammad Yakub Khan Eusufzal, A.‑G. (Baluchistan) for the State.

Date of hearing : 14th June, 1986.

JUDGMENT

The Customs Appeals Nos. 9 and 10 of 1985 are directed against the same judgment, dated 4tb December, 1984 of the Special Judge Customs Quetta whereby he convicted the both appellants under section 156(1) (89), Customs Act and sentenced each of them to suffer R. 1. for 3 years and to pay fine of Rs. 1,000 and in default of payment of fine to undergo R. I. for 6 months more.

2. It is the case of the prosecution that on 29th of April, 1985 on spy information Tanveer Alam Inspector of Customs Squad No. 1 Quetta intercepted the Truck No. QAC‑4525 at Kolpur and found foreign made cloth concealed in a false cavity made therein. The truck was being driven by the appellant Ghulam Dastgir whereas Muhammad Qasim who is alleged to be its owner was sitting by his side. , The truck was taken to the Headquarter Office at Quetta and was searched in presence of Muhammad Saleem and Sarfraz Ahmed, Customs personnels. After recording of the F. I. R. the both appellants were cballaned for offence under section 156(1) (89) of the Customs Act before the learned Special Judge Customs Quetta who convicted and sentenced' them as shown hereinabove in the introductory Paragraph of this judgment.

3. Being aggrieved and dissatisfied with their conviction and sentence the both appellants have challenged the same by two separate appeals before this Court.

4. Messrs Iftikhar Muhammad and Khalid Malik Advocates appeared for the appellants whereas Mr. Yakub K. Eusufzai the learned Advocate‑General represented the State.

5. The learned counsel for the appellants impugned the judgment on the grounds :‑

(i) That the truck was intercepted at Kolpur which falls within the jurisdiction of Special Judge Customs Sibi; hence the Special Judge Customs Quetta had no jurisdiction to try the case.

(ii) That the Truck' falling within the definition of Place', the search should have been made in presence of two respectable persons of the locality, hence search made in presence of Customs officials was illegal.

(iii) I hat the cloth was not examined by an expert so as to prove that it was a contraband article; in absence of expert's evidence conviction under section 156k1) (89) of the Customs Act was illegal.

(iv) That the material on the record was not sufficient to warrant conviction.

(v) That the appellants were not examined on oath under section 340(ii) of the Criminal Procedure Code; the conviction as such was illegal.

6. In rebuttal, the learned Advocate‑General emphasized that the above said objections were never taken before the trial Court hence the same could not be raised for the first time in appeal before this Court.

7. The first moot point involved in both the appeals is that the appellants were not examined on oath in disprove of the charges levelled against them as provided under subsection (2) of section 340 of the Criminal Procedure Code. To appreciate this provision of law it would be beneficial to reproduce the same which reads as under :‑‑

"340(2)‑Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he do,s not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial: .

Provided that he shall not be asked, and. if asked, shall not be required to answer, any question tending to show that lie has committed or been convicted of any offence other than the offence with which he is charged or for 'which he is being tried, or is of bad character, unless‑

(i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or

(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given good character; or

(iii) he has given evidence against any other person charged with or tried for the same offence."

By using the word "shall" it has been made obligatory upon the Court t examine the accused on oath to give evidence in disproof of the charges or allegations made against him It may be pointed out, that the non examining of the accused on oath under section 340(ii), Cr. P. C. is not an irregularity which may, be curable under section 537, Cr. P. C.; as e examining of ascused on oath is a mandatory provision of law. Section 537,1

Cr. P. C. reads as under:‑

"537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings.‑Subject to the provision hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered' under Chapter XXVII or on appeal or revision on account :‑

(a) of any error, omission or irregularity in the complaint, report by police office under section 1.73, summons, warrant, charge, procla mation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Court, or

(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice."

The same proposition came under discussion before the Lahore High Court in case of Rizwan v. The State (P L D 1986 Lab. 222 ), in a Criminal Revision which reads as under:‑

"340(2) (as substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 19 5) and section 537 Provisions of section 340(2), Cr. P. C. are mandatory‑Omission to record statement of accused on oath would be an illegality and not an irregularity curable under seetion 4 37. Cr. P. C.‑Accused is not bound to request Court during trial that his statement should be recorded‑Court itself has to record statement. of accused under section 340(2), Cr. P. C.

8. No material has been placed before me so as to take a divergent view than that enunciated in the above said authority. While agreeing with the proposition enunciated in the above said quotation I am of the clear view that non‑examining of accused on oath renders the conviction and sentence illegal and it requires re‑trial of the case from the stage of the examining of the accused under section 342, Cr. P. C. But as it was pointed out by the learned counsel for the appellants that the incident had taken place at Kolpur which lies within the territorial jurisdiction of Special Judge Customs Sibi and as the Customs Judge Quetta had no jurisdiction to try the case, I would, therefore, direct for trial of the case afresh by the Special Judge Customs Sibi.

9. On the facts and circumstances shown hereinabove I accept thel both appeals and set aside the conviction and sentence of the appellants passed by the learned Special Judge Customs Quetta on 4th December, 1985 and remand the case for re‑trial to the Special Judge Customs Sibi whoshall examine the witness again. The appellants are present on bail, they are directed to appear before the Court of learned Special Judge Customs Sibi on 24th July, 1986 for the purpose.

9 As the case is being remanded for retrial on only two grounds I am not inclined to discuss the remaining three grounds which may be taken by the appellants before the trial Court if they so desire or advised.

10. This is the reasoning of my short order announced in open Court on 14‑6‑1986.

Case remanded.

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