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Criminal Appeal No. 579 of 1975, decided on 13th March, 1983.

‑‑‑S. 3(1) & Sched.‑General Clauses Act (X of 1897), S. 24‑‑Notification No. SRO‑314, dated 11‑7‑1959‑‑Customs Act (IV of 1969), S.156(I)(8)‑ Contention that accused having been charged for offence falling under Customs Act, S.H.O. was not competent to file challan to Court‑ Contention, held, misconceived‑‑By virtue of operation of S. 24 of General Clauses Act, Police Officers mentioned in Notification, dated 11‑7‑1959, held further, continued to exercise functions of Customs Officer.

The State v. Hamtho 1971 S C M R 686; Allah Warayo v. The State 1972 P Cr. L J 585 and Sardar v. The State 1974 P Cr. L J Note 135 at p. 84 ref.

‑‑‑S. 156(1)(8)‑‑Sentence, reduction in‑‑Incident taking place about 13 years ago and value of property attempted to be smuggled out of Pakistan assessed at Rs.3,050‑‑ Sentence of accused reduced to already undergone in circumstances.

M. Yasin Wattoo for Appellant.

Yahya Saleem for the A.‑G. and Syed Iftikhar Ahmad, Deputy Attorney‑General for the State.

Dates of hearing: 21st December, 1982; 20th and 27th February, 1983.

The appellant Iran alias Irani (aged 36 years) was convicted by the Special Judge (Customs), Lahore, of an offence under section 156(1)(8) of the Customs Act and was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000 in default of payment of the fine he was directed to undergo rigorous imprisonment for a further period of six months. The appellant has filed this appeal against his conviction and sentences.

2. According to the prosecution on the morning of 4‑8‑1970, at about 4‑00 a.m., a picket of the West Pakistan Rangers found the appellant alongwith another person proceeding in the direction of India near the Indo‑Pakistan border. When the picket challenged the appellant and his companion they attempted to run away. The picket managed to capture them. On opening the bundle which the appellant was carrying on his head 10 seers of cinnamon and 3‑1/2 seers of opium of the total value of Rs. 3,050 were recovered. The appellant and his companion were challaned for an offence under section 156(1)(8) of the Customs Act.

3. The appellant pleaded not guilty to the charge against him and denied that he was arrested by a picket. He also denied that any cinnamon or opium was recovered from his possession near the Indo‑Pakistan border. He alleged that he had been falsely implicated on account of enmity. He produced two witnesses in his defence.

4. Out of those who formed the picket the prosecution examined former S.I. Gul Haider (P.W. 2), ex‑Havaldar Mazhar Hussain (P.W.3) and Sepoy Zabta Khan (P.W.1). They stated that they were conducting Naka in the area falling between Lasuri and Chimny on the Indo‑Pakistan border and that in the early hours of the morning they found the appellant and another person going towards India. At that time the appellant was carrying a bundle which was later found to contain opium and cinnamon. There is nothing on record to indicate that these witnesses had any enmity with the appellant. They are natural witnesses and I see no reason why I should disbelieve their testimony.

5. The two defence witnesses examined by the appellant stated that he was arrested while he was looking for a buffalo which had been earlier lost. I do not find their evidence convincing particularly in view of the fact that the members of the picket party had no motive whatsoever to perjure themselves against the appellant.

6. On the basis of the statements of the witnesses produced by the prosecution I am satisfied that the appellant was in fact arrested from a place near the Indo‑Pakistan border while carrying opium and cinnamon. Considering the place and time of his arrest it is reasonable to infer that he intended to smuggle the articles found on his person to India. Therefore, he did, commit an offence under section 156(1)(8) of the Customs Act

7. The challan in this case was submitted in the Court by the Station House Officer of Police Station Mandi Hira Singh on 8‑8‑1970. It may be mentioned that the said police station falls within Tehsil Depalpur. The learned counsel for the appellant contended that as the offence with which the appellant was charged fell under the Customs Act the Station House Officer was not competent to file a challan in the Court. In support of this contention he referred to The State v. Hamtho 1971 SCMR 686, Allah Warayo v. The State 1972 P Cr. L J 585 and Sardar v. The State 1974 P Cr. L J 84 Note 135 at page 84. In State v. Hamtho the Supreme Court held the police officers were not competent to send up persons accused of contravention of the provision of the Sea Customs Act for trial under a challan under the Criminal Procedure Code. The same view was taken by the Karachi High Court in Allah Warayo v. State. It appears that Sardar v, State merely follows the decision recorded in the earlier mentioned authorities.

8. The learned Deputy Attorney‑General who at my request appeared in this case brought to my notice a notification issued by the Central Board of Revenue under section 3(1) of the Land Customs Act appointing all officers of the Police Department and the West Pakistan Rangers not below the rank of Head Constable and Havaldar as Land Customs Officers in certain districts or tehsils specified therein. It reads:‑---

"S.R.O.314.‑‑ In exercise of the powers conferred by subsection (1) of section 3 of the Land Customs Act, 1924 (XIX of 1924), read with Notification No. 5944, dated the 13th December, 1924, and clause (b) of section 2 of the said Act and in supersession of its Notification No. 67‑C, dated the 22nd November, 1958, the Central Board of Revenue is pleased to appoint the persons specified in column 1 of the Schedule hereto annexed to be Land Customs Officers for the areas specified in column 2 thereof.

Officers of the Police Department and the West Pakistan Rangers not below the rank of Head Constable/ Havaldar in:‑---

(i) Minchinabad, Bahawalnagar and Fort Abbas Tehsils of the Bahawalnagar District.

(ii) Yazman (Independent Sub‑Tehsil) and Ahmadpur East Tehsil of the Bahawalpur District.

(iii) Khanpur, Rahimyar Khan, Sadiqabad, and Liaquatpur Tehsils of the Rahimvar Khan District.

(iv) Nara Taluka of the Khairpur District.

(v) Rohri, Mirpur Mathelo and Ubauro Talukas of the Sukkur District.

(vi) Badin Taluka of the Hyderabad District.

(vii) Nagarparkar, Chachro, Umerkot, Mithi and Diplo Talukas of the Tharparkar District.

(viii) Khipro Taluka of the Sanghar District.

(ix) Jati, Mirpursakro, Keti Bundar and Shahbandar Talukas of the Thatta District.

(x) Shakargarh, Narowal, Pasrur and Saddar Tehsils of the Sialkot District.

(xi) Shahdara Tehsil of the Sheikhupura District.

(xii) Lahore, Kasur and Chunian Tehsils of the Lahore District.

(xiii) Dipalpur and Pakpattan Tehsils of the Montgomery District.

(xiv) Gujrat Tehsil of the Gujrat District:'

Within their respective jurisdiction.

This notification was published in an Extraordinary Issue of the Gazette of Pakistan on 11th July, 1959. It continued to remain in force till the Sea Customs Act and Land Customs Act were repealed in 1969 and after consolidation re‑enacted as Customs Act, Subsections (1) and (2) of section 221 of the Customs Act read as follows:‑--

(1) Notwithstanding anything contained in section 6 of the General Clauses Act (1897), anything done or any action taken under the repealed enactments in so far as it is not inconsistent with the provisions of this Act shall, without prejudice to anything already done or any action already taken be deemed to have been done or taken under this Act:

Provided that nothing in this Act shall be so construed as to have the effect of enhancing the punishment of an offence committed before the commencement of this Act:

Provided further that where the period of limitation for the submission of an application or the fling of an appeal or revision prescribed under any of the repealed enactments had expired or had begun to run before the commencement of this Act the provisions of those enactments shall continue to apply such limitation.

(2) The provisions of the General Clauses Act, 1897, in particular, section 6, section 8 and section 24 thereof shall apply to the repeal and re- enactment of the said enactments by this Act, subject to the provisions of subsection (1)."

The repealed enactments referred to in subsection (2) include the Sea Customs Act and the Land Customs Act. Section 24 of the General Clauses Act which has been specifically made applicable to the Customs Act is in the following terms:

"Where any Central Act or Regulation is, after the commencement of this Act, repealed and re‑enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye‑law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re‑enacted, continue in force, and be deemed to have been made or issued under the provisions so re- enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye‑law, made or issued under the provisions so re‑enacted :

There is nothing in the Customs Act which may militate against the appointment of police officers as customs officers within the jurisdiction of their police stations. I should, therefore, think that by virtue of the operation of section 24 of the General Clauses Act the officers mentioned in the notification of 11‑7‑1959 continued to exercise the function of customs officers.

9. The authorities cited by the learned counsel in support of his contention are of not any assistance for it is to be noticed that the appointment of police officers as customs officers was confined to only specified areas. The areas to which the cases reported in the authorities related are not mentioned therein. On the other hand the case before me relates to Depalpur Tehsil which is clearly mentioned in the notification. I should, therefore, think that acting as customs officer the Station House Officer was competent to lay information before the trial Court against the appellant and seek his trial for the contravention of the provision of the Customs Act.

10. For the reasons stated above I am satisfied that the appellant was properly convicted by the learned Special Judge of an offence under section 156(1)(8) of the Customs Act. As regards the sentence it may be mentioned that the incident took place about 13 years ago and the value of the property attempted to be smuggled out of Pakistan was Rs. 3,050 only. I do not think that any purpose will be served by sending the appellant to jail now. I would, therefore, reduce his sentence of imprisonment to the period already undergone by him but enhance the sentence of fine to Rs. 7,000. In default of payment of the fine the appellant shall suffer rigorous imprisonment for a period of one year He is allowed two months to pay the amount of fine.

S.GD/I‑11/L Order accordingly.

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