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Special Criminal Appeal No.17 of 1979, decided on 21st May, 1986.
‑‑‑Ss. 156(1)(89) & 171‑‑Search and seizure‑‑Notice under S., 171 of Customs Act, not served on accused‑‑Mashir of search and seizure of alleged smuggled cloth not a person of locality of incident but resident of a place about 20 miles away‑‑Conviction and sentence‑set aside, in circumstances.
P L D 1981 Kar, 215; P L D 1968 Kar. 59; P L D. 1972 Kar. 201; P L D 1969 S C 150; A I R 1962 SC 496; A I R 1963 Monipur 35; 1972 S C M R 87; Azizullah v. The State 1981 Kar. 250 and State v. Muhammad Khan and another P L D 19'72 Kar. 201'ref.
Sarwar Khan for Appellants.
A . Sattar Pinger for the State.
Date of hearing: .21st May, 1986.
Appellants were tried for the offences under clauses (8) and (89) of section 156(1) of the Custom Act, 1969. They have been convicted by Special Judge Customs and Taxation, Karachi by judgment, dated 15th April, 1979, and sentenced to suffer R.I. for six months and to pay fine of Rs.5,000 each or in default to undergo R.I., for 5 months. Briefly stated the case of prosecution is that on 13‑2‑1976 Fasahat Ali S.H.O. Police Station, S. I. T . E. was on patrol duty in his jurisdiction. At about 1‑30 a.m. when he reached Akbar Road, Block A. Sher Shah Colony, he saw a micro wagon standing opposite the godown of Shafi. He picked up Mashirs Kala Khan and Mujahid and in their presence he found four persons taking out certain bales from the wagon. They proceeded towards that wagon and apprehended 3 persons, while one of them ran away. S.H.O. seized bales which contained 277 Thans of Japanese origin cloth. He prepared such Mashirnama and took the accused and property to the police station. Subsequently he handed over accused and property to Coast Guard for further investigation. Major Arif Sultan, of Coast Guard received case papers and registered the case under section 156(8)(89) of the Customs Act, 1969. He after usual investigation challaned the case and finally appellants/ accused have been convicted.
Prosecution in support of the case examined Mashir Kala Khan Exh. 6, S.H.O. Fasahat Ali Exh.8, and Major Arif Sultan Exh.9. Appellants in their statements denied the allegation and led no evidence in their defence.
Mr. Sarwar Khan argued that it has not been proved if cloth so recovered is of foreign origin and appellants were not served with the notice as provided under section 171 of the Customs. Act. He has referred to the cases reported in P L D 1981 Kar: 215 and P L D 1968 Kar. 59. He has also argued that seizure in these circumstances is illegal and cannot come under the purview of Customs Act. He has referred to the cases reported in P L D 1972 Kar. 201, P L D 1969 SC 450, A I R 1962 S C 496. A I R 1963 (Monipur) 35 and 1972 SCMR 87.
Mr. Abdul Sattar Pinger appearing for the State has frankly stated that notice under section 171 of the Customs Act was not served, therefore, conviction is bad in law. He does not support the judgment.
The admitted position in the present case is that appellants were arrested by S . H . O . , S . I . T . E . and cloth was secured under section 550, Cr.P.C. and property was not found to have been stolen, therefore, the accused were challaned by the Customs authorities. The case is registered on the report of S.H.O. Fasahat Ali. The exclusive possession has also not been proved. But the important factor in this case is that notice under section 171 of the Customs Act was not served on they, appellants. In a case of Azizullah v. The State reported in P L D 1981 Kar. 250 it has been held that provisions as to search seizure and arrest, as contained in section 171 of the Customs Act are mandatory. In case of non‑compliance of mandatory provisions the accused are entitled to acquittal. I also refer to a case of State v. Muhammad Khan and another reported in P L D 1972 Kar. 201. In the present case Mashir Kala Khan is resident of about 20 miles from the place of incident. He is not from the locality. According to section 103 respectable person of the locality should be taken as Mashir. In my view of the above facts and circumstances, I allow the appeal and set aside the conviction. Appellants are on bail, and their bonds stand cancelled.
S.G.D. Appeal allowed.
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