182. Vesting of confiscated property in the Federal Government.--When any goods are confiscated under this Act they shall forthwith vest in the ¹[Federal Government], and the officer who orders confiscation shall take and hold possession of the confiscated goods.

General.--Section 182 corresponds to Section 184 of the Sea Customs Act, 1878. The phrase "and every officer of police on the requisition of such officer shall assist him in taking and holding such possession" has been omitted from the present section. Under the present Act -all officers of police are empowered and required to assist officers of customs in the discharge of their functions under this Act. (See Section 7).

Absolute title to Government.--An order of confiscation under the Act or rules operates directly upon the status of the property and transfers an absolute title to the Government (AIR 1958 S.C. 845). All rights in goods vesting in any person stand extinguished (PLD 1977 Kar. 1000) but after payment of redemption fine and duty, the goods continue to remain that of the owner (AIR 1964 Madras 504 + AIR 1962 Bom. 290). and the Department had no jurisdiction to sell the goods. In such cases if the department sells the goods, the owner can recover the goods or its market price from the Department and there is no bar for filing a suit against the department. (AIR 1958 Patna 439). Now under Section 169(4) of the Act the department is competent to sell the goods pending the proceedings in the manner as prescribed under Section 201 of the Act. In that case the sale proceeds are payable.

Officer holding possession and competent to requisite officer of police.--The officer who adjudges the confiscation can take and hold possession of the goods confiscated and it is that officer on whose requisition every officer of police is bound to assist him in taking and holding of such possession. (AIR 1958 Bom. 305).

DEPARTMENTAL INSTRUCTIONS

1. Disposal of confiscated goods.

(i) No need to have recourse to Section 88.--Confiscation under Section 182 [corresponding to Section 179, Customs Act, 1969,] and sale under Section 88 are entirely different and are designed by the Act to be kept distinct. As goods confiscated under Section 182 become State property under Section 184 [corresponding to Section 182, Customs Act, 1969,] there is no need to have recourse to Section 88 in selling them. They can be disposed of in any way which suits Government. [G.I.F.D. (C.R.) R. Dis. No. 589-cus. 1/29, dated 13th November, 1929 - Order No. 2 of 1936, C.F., S. C.A.]

(ii) Procedure when an appeal has been preferred.--(a) When an appeal against the order of confiscation has been preferred, the goods should not be sold until the appeal has been finally decided. If the order of confiscation is upheld in appeal, the goods may be sold after a final notice to the owner.

(b) These instructions do not apply to perishable goods. Such goods should be sold after reasonable notice to the owner to enable him to pay the fine and obtain delivery.

(c) In forwarding papers called for by the Government in connection with the disposal of a revision application it should be stated if the confiscated goods, if any, have been disposed of. If they are not disposed of, further action should be suspended pending the disposal of the revision application. (Board's Instruction No. 5 of 1936 - Order No. 1 of 1937, C.F. S.C.A.)

(iii) Goods of hazardous nature.--The Board has decided that though it is a proper practice for adjudicating Officers to postpone the disposal of confiscated goods until the period of appeal has expired, it is a practice prescribed by considerations of equity and not by any express provision of law, and it remains true, in strict law, what confiscated goods may be disposed of by Government, in any way at any time after they have become Government property under Section 184, Sea Customs Act [corresponding to Section 182, Customs Act, 1969.] The question therefore becomes one of practical expediency, viz., whether the certainty that if confiscated explosives are detained, the Customs Department will have to pay rent for three months should outweigh the possibility that, in the event of an appeal being successful after the goods had been destroyed or otherwise disposed of, it would be necessary in equity to pay compensation, including the actual value of the goods, loss of profit, etc. The answer to this practical question must depend upon the circumstances and in particular upon the probable relation between the figures of (a) three months' rent and (b) value and damages, and upon the degree of remoteness of a successful appeal. (C.B.R., R. Dis. No. 189- Cus 11/29, dated 29th Aug. 1929 - File R. Dis. 1921/29).

2. Disposal of confiscated/seized goods.--See Customs General Order No. 5 of 1992, reproduced under Notes of Section 169.

3. Charges incurred in respect of confiscated goods-liability for.--(a) Even when in the exercise of his discretion the Customs Collector decides to destroy or otherwise dispose of confiscated explosives before three months have expired, the port authorities may have a legitimate claim for rent in respect of a shorter period. The liability of the Customs department to pay any such rent begins legally from the date of confiscation; but the Customs department should, as a matter of equity, bear so much of the rent incurred .between the date of detention and that of confiscation as is attributable to any delay in disposing of the case for which Customs Officers may have been responsible. Subject to this, it must be left to the Port authority to recover from the importer any rent incurred before the date of confiscation. (C.B.R., Dis. No. 189-cus. 11/29, dated 29th August, 1929 -- S.O. 172/29 -- File P. Dis. 1921 of 1929).

(b) Section 178, Sea Customs Act, [corresponding to Section 168, Customs Act, 1969,) authorises the Customs Officer duly empowered under Section 182, ibid, to seize the goods liable to confiscation wherever they are found, and the exercise of that right is not subject to any lien attaching to the goods at the time of seizure. In fact, the section as it is worded renders the goods liable to confiscation irrespective of any proprietary or other rights in them existing at the time of seizure, and on seizure the goods vest absolutely in Her Majesty under Section 184, ibid. Port Trust charges accrued on the goods are therefore payable. [G.I., F.D. (C.R) D. Dis. No. 1634-Cus. 1/37, dated 19th January, 1938 --File C. 178/38--S.O. 31 of 1938).

Note.--The Government have, however, decided that until otherwise advised, any surplus remaining with the Customs Department after satisfaction-of the Government dues in full should be applied in payment pro tanto of the Port Trust dues. [G.I., F.D. (C.R.), R. Dis. No. 357-Cus. 1/39, dated 1st May, 1939--S.O. 72/39--File No. 980/39].

(c) In respect of an article which is confiscated under the Sea Customs Act, the law does not specify that it is taken over with all the charges on its head. It is an interception by way of legal seizure and confiscation is independent of any responsibility for charges that might have been incurred by offending party. In cases of goods confiscated while in the custody of the Port Trust, charges which might have accrued on the goods prior to the time of confiscation are not paid to the Port Trust by Government.

Similarly no such charges are payable to the Railway Administrations (Collector of Customs, Madras, letter No. 3935/B 11/36, dated 16th September, 1936, and C.B.R. D.A. Dis. No. 740-Cus. 21/36, dated 7th November, 1936--File R. Dis. No. 2063/36).

3. Return of Literature seized.--All applications for the return of literature seized during Customs examination should be referred to the Board. (C.B.R. C. No. 29-cus/37, dated 11th January, 1937--File C. 76/37).

183. Levy of penalty for departure without authority or failure to bring to.--(1) If any conveyance actually departs without a port clearance or permission in writing or, in the case of a vessel, after having failed to bring to when required at any station appointed under section 14, the penalty to which the person-in-charge of such conveyance is liable may be adjudged by the appropriate officer of any customs-station, to which, such conveyance proceeds, or in which it for the time being is.

(2) A certificate in respect of such departure or failure to bring to when required, purporting to be signed by the appropriate officer of the customs station from which the conveyance is stated to have so departed, shall be prima facie proof of the fact so stated.

General.--This section corresponds to Section 185 of the Sea Customs Act, 1878. It also covers conveyances other than vessels. This section also empowers the appropriate officers of any Customs Station to which such conveyance proceeds or in which it is for the time being to have jurisdiction to adjudge the cases.

Authorised Officer.--The Central Board of Revenue has assigned the functions of the "appropriate officer" to the following officers of customs, namely:--

(i) Adjudication Officers--Officer of Customs competent to adjudicate the case under Section 177 of the Customs Act, 1969 for the purposes of sub-section (1) of Section 183; and

(ii) Superintendent/Principal Appraiser for the purposes of sub-section (2) of Section 183.

(See Notification No. S.R.O. 56(I)/93, dated 19th January, 1993, reported as PTCL 1993 St. 461 or see page 586 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

Entrustment of function of the Customs Officers to the Officers of the Directorate of Vigilance.--The Central Board of Revenue has entrusted the functions of the officers of the Customs under Section 183 of the Customs Act, 1969 to the Officers not below rank of Investigator within their respective jurisdiction. (See Notification No. S.R.O. 739(I)/79, reproduced at page 170 of the Customs Rules and Notifications, 1998-99 Edition - An allied publication).

184. Power to try summarily.--Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Judge may, if he thinks fit, try in a summary way, any offence under this Act where the value of the goods involved in such offence does not exceed one thousand rupees.

(2) In the trial of an offence under sub-section (1), the provisions of sub-section (1) of section 262 and sections 263,264 and 265 of the said Code shall, so far applicable and with the necessary adaptation, apply:

(3) No proceeding under this section shall be called in question merely on the ground that the value of the goods involved was more than the limit specified in sub-section (1).

Explanation.--For the purpose of this section, "value"--

(i) in the case of goods, whether imported or indigenous, which are lawfully sold in open market in Pakistan, means the wholesale price of such goods in open market;

(ii) in the case of goods, whether imported or indigenous, the price of which has been fixed by the Government, means the price so fixed; and

(iii) in the case of goods the import of which is absolutely prohibited, means the price of similar or comparable indigenous goods sold in open market in Pakistan or, where no such goods are sold in open market in Pakistan, the price fixed by the Federal Government, by general or special order.

General.--This section corresponds to Sections 187 and 193-A of the Sea Customs Act, 1878.

This section provides for the summary disposal of the cases where the value of the goods involved is not more than Rs. 1,000/-. The summary trial implies speedy disposal. Summary trial is not intended for a complicated case which insists a lengthy inquiry.

The object of summary trial is to have a record sufficient for the purpose of justice but not so long to imply speedy disposal of cases.

If he thinks fit.--It is in the discretion of a Special Judge to try any of · the offences where the value of the goods does not exceed Rs. 1,000/- in a summary way. Whether a case is triable or not must be determined by the offence with reference to the value of the goods. The term "value" for the purpose of this section has been defined in Explanation given in this section. The present explanation of the value is new which did not exist in the old law.

Try in a summary way.--In a summary trial the procedure laid down in Sections 262, 263, 264 and 265 of the Criminal Procedure Code, should be strictly observed. A summary trial is summary only in respect of the record of its proceedings and not in respect of the proceedings themselves which should be complete and carefully conducted. The provisions of Sections 262, 263, 264 and 265 of the Criminal Procedure Code have been reproduced in the paras hereinafter appearing.

Section 262(1) of the Cr. P.C.--"Procedure prescribed in Chapter XX applicable.-Limit of imprisonment.--(1) In trials under this Chapter, the procedure prescribed in chapter XX shall be followed except as hereinafter mentioned."

Section 263 of the Cr. P.C.--"Record in cases where there is no appeal.--In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge; but he or they shall enter in such form as the Provincial Government may direct the following particulars--

(a) The serial number;
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of complainant (if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (d), clause (e), clause (f), or clause (g) of sub-section (1) of Section 260 the value of the property in respect of which the offence has been committed;
(g) the plea of the accused and his examination (if any);
(h) the finding, and, in the case of a conviction, a brief statement of the reasons therefor;
(i) the sentence or other final order; and
(j) the date on which the proceedings terminated."

Section 264 of the Cr. P.C.--"Record in appealable cases.--In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in Section 263 and shall before passing any sentence, record a judgment in the case."

Section 265 of the Cr. P.C.--"Language of record and judgment.--(1) Records made under Section 263 and judgments recorded under Section 264 shall be written by the presiding officer, either in English or in language of the Court, or, if the Court to which such presiding officer is immediately subordinate so directs, in such officer's mother-tongue.

(2) Bench may be authorised to employ clerk.--The Provincial Government may authorise any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record of judgment by means of an officer appointed in this behalf by the Court to which such Bench is immediately subordinate, and the record or judgment so prepared shall be signed by each member of such Bench present taking part in the proceedings.

(3) If no such authorization be given, the record prepared by a member of the Bench and signed as aforesaid shall be the proper record.

(4) If the Bench differ in opinion, any dissentient member may write a separate judgment."

185 Special Judges.--(1) The Federal Government may, by Notification in the official Gazette, appoint as many Special Judges as it considers necessary and, where it appoints more than one Special Judge, shall specify in the Notification the headquarters of each Special Judge and the territorial limits within which he shall exercise jurisdiction under this Act.

(2) No person shall be appointed as a Special Judge unless he is or has been a Sessions Judge.

(3) Notwithstanding the provisions of sub-sections (1) and (2), the Federal Government may, for the areas comprising the districts of Lasbela , Turbat, Panjgoor and Gwadur, appoint any other officer as Special Judge and specify in the Notification his headquarters and the limits of his territorial jurisdiction under this Act.

(4) If a Special Judge is, for any reason, temporarily unable to perform his duties under this Act, he may generally or Specially authorise the Sessions Judge [***] of the district to perform such duties of an urgent nature as he may deem proper and such Sessions Judge [***] shall perform such duties.

General.--The original Section 185 of the Customs Act corresponds to Section 193-B of the Sea Customs Act, 1878. The present section replaces the original Sections 185 and 185-A so far as appointment of Special Judge is concerned. Under the present provisions Magistrate has no special powers for passing special sentences. The jurisdiction of all courts other than the Special Judge for trying the offences under the Customs Act has been barred under Section 185-B. The Special Judge has exclusive jurisdiction to try offences under the Customs Act. He is the only authority to entertain, hear or decide any application regarding bail and miscellaneous matters allied to the offences relating to Customs Act.

Qualification for appointment as Special Judge.--.Only a person who is or has been a Sessions Judge can be appointed a Special Judge, but for areas comprised in the Districts of Lasbela, Turbat, Punjgoor and Gwadur this condition does not apply and the Federal Government may appoint any officer to be a Special Judge.

Arrangements where Special Judge temporarily unable to perform his duties.--The Special Judge is empowered, if he is temporarily unable to perform the functions of his office, to authorise the Sessions Judge of the District to perform such urgent duties of the Special Judge as he may specify.

Nature of powers of the Special Judge and officers of Customs.--The proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment for the same whereas the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings which are not judicial but quasi-judicial. Both are independent of each other. Principles of natural justice would apply. (PTCL 1988 CL. 172).

Case law under the old section.--Offences punishable with maximum sentence of 10 years may be tried by a Magistrate of First Class. (PLD 1966 S.C. 88). When the Provincial Government has specially empowered a Magistrate under Section 30 read with Section 34, Cr. P.C. to pass a sentence of imprisonment for a term exceeding two years and a fine exceeding one thousand rupees (these are limits of the powers of a Magistrate First Class under Section 32, Cr. P.C.), he is the Magistrate meant by Section 193-B When it enacts that "any Magistrate of the First Class specially empowered by the Provincial Government in this behalf may pass a sentence" exceeding those very limits. The learned counsel did, at one stage, also rely on the expression "notwithstanding anything contained in the Code of Criminal Procedure" contained in Section 193-B to avoid the reference to Sections 29, 30 and 34 of Cr. P.C. This is not what is meant by that expression. As indicated above, this expression was used in the light of the provisions contained in Sections 1(2), 5(2) and 32 of Cr. P.C. read with Section 187 of the Sea Customs Act, and if it may be said so, particularly Section 32, Cr. P.C. because it limits the powers of a Magistrate 1st Class with regard to the sentence that he can pass. It has been already explained the reason for enacting Section 193-B in the Sea Customs Act. Keeping that in view, the use of the "notwithstanding" clause in Section 193-B gets explained. In the light of the above discussion, the Magistrate 1st Class, with enhanced powers under Section 30 read with Section 34, Cr. P.C. could validly pass the sentence of five years' R.I. under Section 167 (8) of the Sea Customs Act and could also pass the sentence of one year's R.I. under Section 9 of the Opium Act. (1970 P. Cr. L.J. I36).

185-A Cognizance of offences by Special Judges.--(1) Notwithstanding anything contained in this Act or any other law for the time being in force, a Special Judge may, within the limits of his jurisdiction, take cognizance of any offence punishable under this Act--

(a) upon a report in writing made by an officer of customs or by an officer-in-charge of a police-station or by any other officer especially authorised in this behalf by the Federal Government; or

(b) upon receiving a complaint or information of facts constituting such offence made or communicated by any person; or

(c) upon his own knowledge acquired during any proceeding before him under this Act or under the-Prevetion of Smuggling Act, 1977.

(2) Upon the receipt of report under clause (a) of sub-section (1) the Special Judge shall proceed with the trial of the accused.

(3) Upon the receipt of a complaint or information under clause (b), or acquired in the manner referred to in clause (c) of sub-section (1), the Special Judge may, before issuing a summon or warrant for appearance of the person complained against, hold a preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint, or direct any Magistrate or any officer of customs or any police officer to hold such inquiry and submit a report, and such Magistrate or officer, shall conduct such inquiry and make report accordingly.

(4) If, after conducting such enquiry or after considering the report of such Magistrate or officer, the Special Judge is of the opinion that--

(a) there is no sufficient ground for proceeding, he may dismiss the complaint, or
(b) there is sufficient ground for proceeding, he may proceed against the person complained against in accordance with law.

(5) A Special Judge or a Magistrate or an officer holding inquiry under sub-section (3) may hold such inquiry, as nearly as possible, in accordance with the provisions of section 202 of the Code of Criminal Procedure, 1898 (Act V of 1898).

General.--This section corresponds to Section 193-C of the Sea Customs Act. The present Section 185-A was inserted in the Customs Act, 1969 by Finance Act, 1973. Sub-sections (7) to (10) were added therein by the Finance Act, 1974. The present section replaces sub-section (6) of the previous Section 185-A. Under the old provisions a Special Judge was competent to take cognizance of, and have jurisdiction to, try an offence only upon a complaint in writing made by officers of customs or other persons invested With the powers of officers of customs as may be authorised by the Central Board of Revenue in that behalf by general or special order in writing.

The Central Board of Revenue in exercise of the powers conferred upon it by sub-section (6) issued General Order No. 26 of 1975 authorising following officers to make complaints in the court of Special Judge--

1. The Assistant Collector of Customs, Custom House (Appraising), Karachi.
2. The Assistant Collector of Customs, Custom House (Preventive), Karachi.
3. The Assistant Collectors of the Collectorates of Central Excise and Land Customs, Hyderabad, Lahore, Peshawar.
4. The Assistant Directors of the Directorate of Customs Investigation and Intelligence, Karachi.
5. The Assistant Directors of the Directorate of Complaints (Investigation), Islamabad.
6. The Commandants of Pakistan Coast Guards, Karachi.
7. The Wing Commanders of West Pakistan Rangers, Karachi.
8. The District Officers of Frontier Constabulary, Peshawar.
9. Officers of the Rank of Major of Frontier Corps Baluchistan, Quetta.
10. The Superintendents of Police of the Provinces of Punjab, Sind, N.W.F.P. and Baluchistan.
11. The Superintendents of Police of Special Establishment, Rawalpindi.

Police report sent by Superintendent of Police.--The Police report sent by the Superintendent of Police who has been authorised by the Central Board of Revenue through General Order No. 26 of 1975 has been held to be a complaint within the meaning of old Section 185-A of the Act. (PLJ 1981 Cr. C(kar.) 6).

The present section has been substituted by the Prevention of Smuggling Ordinance, 1977. Special Judge can now take cognizance of any offence punishable under the Customs Act upon reports, complaints or information or upon his own knowledge as mentioned in clauses (a), (b) and (c) of sub-section (1) of the section.

Case law under old Section 185-A.--According to the first order of authorization under sub-section (6) i.e. Customs General Order No. 19 of 1974, dated 25th October, 1974, only the I.G. of Police of the Province, in the Police Organization, was authorised to file complaint. This order was in operation at the time the challan was received in the Court. This Customs General Order No. 19 as amended subsequently by Customs General Order No. 15 of 1975, dated 23rd February, 1975 had been superseded by Customs General Order No. 26 of 1975, dated 26th July, 1975. But by this order, too the officer in the Police Organization authorised in this regard, is the Superintendent of Police. Obviously there is no proper complaint in the case. Cognizance could be taken by the Special Judge only upon a complaint filed by a person authorised under the law. The cognizance taken by the Special Judge is, therefore, not warranted by law and the proceeding against the petitioners has no validity, hence the present proceeding were quashed. (1977 P. Cr. L.J. 93).

The seizure of smuggled goods was affected in September, 1973 and after the investigation of the case by the Customs Inspector, the challan was filed before the learned Assistant Commissioner Campbellpur because till that time no appointment of a Special Judge was notified. According to the provisions contained in Section 185-A (3) of the Customs Act which Section was added by the Finance Act, 1973, on the appointment of a Special Judge, Customs and Taxation all cases pending in any other court immediately before such appointment stood transferred to the Special Judge. The provisions contained in sub-section (6) of that section that a Special Judge can take cognizance and have jurisdiction to try the offences triable under sub-section (3) only upon a complaint in writing made by such officer of customs or such other person invested with the powers of an officer of customs as may be authorized by the Central Board of Revenue in this behalf by a general or special order in writing was applicable to the challans which were submitted after the appointment of a Special Judge. According to the law prevailing at the time challan in this case was submitted by the Customs Inspector, in September, 1973, in the court of the Assistant Commissioner, Campbellpur there was no such bar as provided in sub-section (6) of Section 185-A of the Customs Act. (PLD 1977 Lahore 205).

Case taken cognizance of and pending in the court of a Magistrate 1st Class transferred to the Court of Special Judge under sub-section (3) of the old section. Special Judge in respect of the transferred case not bound to recall and re-hear any witness. No fresh complaint is necessary in respect of such transferred case. (PLD 1977 Lahore 349).

It was contended that by virtue of Section 185-A courts of Special Judge having been set up, all cases pending in the courts of Magistrate stood · transferred to the courts of Special Judge and the Courts of Special Judge had no jurisdiction to proceed with case unless fresh complaint in terms of sub-section (6) of Section 185-A was made in writing by an authorised officer. It was held that the contention is misconceived, because the question of taking cognizance arises only in fresh cases and not in pending cases in which cognizance had already been taken. Cognizance once taken of a case remains unaffected by subsequent transfer of the case to another court by an order or by operation of law. The necessary legal implication in every transfer of a case is that the case moves from one court with jurisdiction to another court with jurisdiction and the cognizance already taken by the earlier court passes on with the case to the latter court upon the transfer. In fact, a pending case remains pending until it has been finally disposed of. To hold that a pending case will stand transferred to the court of Special Judge by operation of law, and also that the court cannot take cognizance of such case unless a complaint has been filed, is contradictory in terms. What will happen if the person authorised to file complaint chooses not to do so. Will he thereby frustrate the directive of the law relating to the transfer. Can a court to which a case stands transferred still take cognizance of it? The answer is plainly in the negative. (1978 P.Cr. L.J. 653).

Cognizance by Special Judge of the offence committed within his territory.--A Special Judge can take cognizance of the offence committed within the territorial limits of his jurisdiction. (PTCL 1987 CL. 30).

Proceedings quashed because of failure of person signing the complaint to apply his mind to fact of case.--In Musharaf Khan v. State PLD 1978 Pesh. 113, a learned Judge of the Peshawar High Court quashed the proceedings before the Special Judge on the ground that though the proceedings were initiated upon the complaint of the Superintendent of Police, who was duly authorised to file a complaint before the Special Judge in respect of an offence under the Customs Act, the facts disclosed that the complaint was prepared by the S.H.O. and the Superintendent of Police merely forwarded the same to the Special Judge without applying his mind to the facts of the case. It was observed that "the nominated person authorised to file a complaint is expected to apply his mind to the facts of the case and then reach a finding whether it is to be filed or not............................."

Special judge competent to take cognizance even on negative report of Investigating Officer.--The Supreme Court in Abdul Rauf v. State 1980 SCMR 58 has held that the Special Judge is competent to initiate proceedings against a person under the Customs Act if in his opinion there is sufficient ground for doing so even upon a negative report of the investigating officer and in this behalf has observed as follows:

"As the question raised in connection with nature of the police report and consequences thereof, by the learned counsel, found complete answer in the ruling of this Court, he tried to contend that the same should not be considered as having, in any way, settled the controversy, because, as he put it, the ruling is against the language of the statute, namely, Section 190, Cr. P.C. He requested for re-opening and re-examination of the same question by this Court, may be in a larger Bench. This has already been done in the case of Muhammad Akbar v. The State and another 1972 SCMR 335. It was re-affirmed that a Magistrate could, irrespective of the opinion of the investigating police-officer, take cognizance, if upon the material before him he finds prima facie case made but against the accused. The decision in the case of Falak Sher and another v. The State PLD 1967 SC. 425 was noted, as supporting this view. After hearing the learned counsel on this point we see no compelling reason for re-opening and review of the above decision.

In the present case the relevant provision contained in sub-clause (a) of Section 185-A of the Customs Act would be read and interpreted on the same lines as clause (b) of Section 190(1), Cr. P.C., has been interpreted in the above-noted rulings of this Court. It does not require that the report of the investigator should necessarily contain facts and or opinion against the accused, so as to enable the Court to take cognizance of the offence against him. Further support for this view can also be found from the language used in sub-sections (10) and (11) of Section 161 of the Customs Act. It has been provided that a Special Judge, to whom a report under sub-section (1) has been submitted by the investigating officer (expressing the opinion that 'there is no sufficient evidence or reasonable ground for suspicion' against the accused and for that reason seeks his discharge) may, notwithstanding the said report and opinion 'after the perusal of the record of the inquiry and hearing the prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such a person, proceed with his trial.'"

Whether police have power to investigate and offence under the Customs Act and submit challan to the Special Judge.--In A jab Khan v. State 1981 SCMR 976, the twin questions which were raised before the Supreme Court were (1) whether the police are competent to investigate an offence under the Customs Act, and (2) whether the police can challan a case before the Special Judge? Answering both questions in the affirmative, the Supreme Court held--

(i) on the basis of the provisions of Section 161, that the police had the authority to investigate; and

(ii) that under the amended Section 185-A, the Special Judge is competent to take cognizance of an offence under the Customs Act upon the report of an officer-in-charge of a police station and even under the old law the Superintendent of police was empowered to make a complaint to the Special Judge in respect of an offence under the Customs Act.

Sub-section (3).--Whereas upon receiving a report under clause (a) of sub-section (1) the Special Judge is required to proceed with the trial of the accused, in cases where he receives a complaint or information of an offence under clause (b) or proposes to act upon his own knowledge under clause (c) of the said sub-section, the Special Judge may, before issuing process for the appearance of the accused,--

(i) hold preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint; or

(ii) direct a Magistrate or an officer of Customs or a police officer to hold such inquiry and submit a report to him.

Section 202 of the Criminal Procedure Code--" Postponement for issue of process.--(1) Any court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred it under Section 191 or Section 192, may, if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by a Police Officer, or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:

Provided that, save where the complaint has been made by a court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.

(2) A Court of Session may instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.

(3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or a Police Officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.

(4) Any court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath.

185-B Special Judge, etc. to have exclusive jurisdiction.--Notwithstanding anything contained in this Act or in any other law for the time being in force.--

(a) no court, other than the Special Judge having jurisdiction, shall try an offence punishable under this Act;

(b) no other court or officer except in the manner and to the extent specifically provided for in this Act, shall exercise any power, or perform any function under this Act;

(c) no court, other than the Special Appellate Court, shall entertain, hear or decide any application, petition or appeal under Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898), against or in respect of any order or direction made under this Act; and

(d) no court, other than the Special Judge or the Special Appellate Court, shall entertain any application or petition or pass any order or give any direction under Chapters XXXVII, XXXIX, XLIV or XLV of the said Code.

General.--Sections 185-B and 185-C to certain extent correspond to Section 193-D of the Sea Customs Act, 1878. They provide for the exclusive jurisdiction of Special Judge and the Special Appellate Court to try cases, hear applications, appeals and revisions. No court other than Special Judge is competent to try any offence punishable under the Customs Act, to entertain any application or petition or pass any order or give any direction under following Chapters of the Code of Criminal Procedure, 1898:--

(i) Chapter XXXVII-relating to directions of the nature of a habeas corpus;
(ii) Chapter XXXIX-relating to bails;
(iii) Chapter XLIV-relating to transfer of criminal cases; and
(iv) Chapter XLV-relating to irregular proceedings.

Similarly no court other than Special Appellate Court shall entertain, hear or decide any application, petition or appeal under the following Chapters of the Code of Criminal Procedure, against or in respect of any order or direction made under the Customs Act--

(i) Chapter XXXI-relating to appeals:
(ii) Chapter XXXII-relating to references and revisions.

The jurisdiction of any court other than the Special Appellate Court is also barred to entertain any application or petition or pass any order or give any direction under the following Chapters of the Code of Criminal Procedure-

(i) Chapter XXXVII-relating to directions of the nature of a habeas corpus;
(ii) Chapter XXXIX-relating to bails;
(iii) Chapter XLIV-relating to transfer of cases; and
(iv) Chapter XLV-relating to irregular proceedings.

When goods are not smuggled.--Special Judge has no jurisdiction to try the case for the offences under Section 156(1)(8) and (89) of the Act when the offending goods are not smuggled. (PTCL 1988 CL 429).

Whether jurisdiction of High Court under Section 561-A, Cr. P.C. barred in Customs cases.--In Butani Papu Udharam v. State (PLD 1980 Kar. 49, at p. 53. see also (a) Cr. Misc; Application No. 386/1974, dated 24th September, 1978 of Karachi High Court; and (b) Muhammad Haroon v. State: 1980 P. Cr. L.J. 759), a learned single Judge of the Karachi High Court held that the "jurisdiction of the High Court under Section 561-A, Cr. P.C., is available and is not expressly barred by the Customs Act, 1969, and is co-extensive with the powers of the trial Court under Section 265-K, Cr. P.C., but first resort may be made to the remedy available in the Court of Special Judge and only in exceptional and special circumstances High Court would exercise jurisdiction in the matter."

The Special Appellate Court Karachi, in Nasir Ahmed v. State 1981 P. Cr. L.J. 594, has held that as Chapter XLVI, Cr. P.C., in which Section 561-A (saving of inherent power of High Court) occurs, is not made applicable to the Special Appellate Court under Section 185-B, Customs Act, the powers exercisable by the High Court by virtue of the said section are not available to the Special Appellate Tribunal.

185-C Provisions of Code of Criminal Procedure, 1898, to apply.--(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings of the court of a Special Judge and such court shall be deemed to be a Court of Session for the purposes of the said Code and the provisions of Chapter XXII-A of the Code, so far as applicable and with the necessary modifications, shall apply to the trial of cases by the Special Judge under this Act.

(2) For the purposes of sub-section (1), the Code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if an offence punishable under this act were one of the offences referred to in sub-section (1) of section 337 of the Code.

General.--This section provides that the proceedings of the court of the Special Judge are to be conducted in accordance with the provisions of Chapter XXII-A of the Criminal Procedure Code, 1898 with the necessary modifications.

Section 337 of the Criminal Procedure Code relates to tender of pardon to accomplice. The offences under the Customs Act have also been included in the list of offences in which pardon to accomplice can be tendered.

Chapter XXII-A of the Criminal Procedure Code is reproduced as under for ease of reference:--

"CHAPTER XXII-A
TRIALS BEFORE HIGH COURTS AND COURTS OF SESSION

265-A. Trial before Court of Session to be conducted by Public Prosecutors.--In every trial before a Court of Session, initiated upon a police report, the prosecution shall be conducted by the Public Prosecutor. (Not applicable in view of Section 185-G of the Customs Act).

265-B. Procedure in cases triable by High Courts and Courts of Session.--The following procedure shall be observed by the High Courts and the Courts of Session in the trial of cases triable by the said Courts.

265-C. Supply of statements and documents to the accused.--(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:--

(a) the first information report;
(b) the police report;
(c) the statement of all witnesses recorded under Sections 161 and 164; and
(d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any:

Provided that, if any part of a statement recorded under Section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.

(2) In all cases instituted upon a complaint in writing,--

(a) the complainant shall--

(i)" state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and

(ii) within three days of the order of the Court under Section 204 for issue of process to the accused, file in the Court for supply to the accused as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused;

(b) copies of the complaint and any other documents which the complainant has filed therewith and the statements under Section 200 or Section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial."

265-D. When charge is to be framed.--If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.

265-E. Plea.--(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.

(2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon.

265-F. Evidence for prosecution.--(1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:

Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) The Court shall ascertain from the Public Prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.

(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.

(4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.

(5) If the accused puts in any written statement, the Court shall file it with the record.

(6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.

(7) If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.

265-G. Summoning up by prosecutor and defence.--(1) In cases where the accused, or any one of several accused, does not adduce evidence in his defence, the Court shall, on the close of the prosecution case and examination (if any) of the accused, call upon the prosecutor to sum up his case whereafter the accused shall make a reply.

(2) In case where the accused, or any of the several accused, examines evidence in his defence, the Court shall, on the close of the defence case, call upon the accused to sum up the case whereafter the prosecutor shall make a reply.

265-H. Acquittal or conviction.--(1) If in any case under this Chapter in which a charge has been framed the Court finds the accused not guilty, it shall record an order of acquittal.

(2) If in any case under this Chapter the court finds the accused guilty the Court shall, subject to the provisions of Section 265-I, pass a sentence upon him according to law.

265-I. Procedure in case of previous conviction.--(1) In a case where, by reason of a previous conviction, the accused has been charged under Section 221, sub-section (7), the Court, after finding the accused guilty of the offence charged and recording a conviction, shall record the plea of the accused in relation to such part of the charge.

(2) If the accused admits that he has been previously convicted as alleged in the charge, the Court may pass a sentence upon him according to law, and if the accused does not admit that he has been previously convicted as alleged in the charge, the Court may take evidence in respect of the alleged previous conviction, and shall record a finding thereon, and then pass sentence upon him according to law.

265-J. Statement under Section 164 admissible.--The statement of a witness duly recorded under Section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (II of 1872).

265-K. Power of Court to acquit accused at any stage.--Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence.

265-L. Power of Advocate-General to stay prosecution.--At any stage of any trial before a High Court under this Code, before the sentence is passed, the Advocate-General may, if he thinks fit, inform the Court on behalf of Government that he will not prosecute the accused upon the charge; and thereupon all proceedings against the accused shall be stayed, and he shall be discharged of and from the same. But such discharge shall not amount to an acquittal unless the presiding Judge otherwise directs. (Not applicable in view of Section 185-G of the Customs Act).

265-M. Time of holding sittings.--For the exercise of its original criminal jurisdiction, every High Court shall hold sittings on such days and at such convenient intervals as the Chief Justice of such Court from time to time appoints.

265-N. Place of holding sittings.--(1) The High Court shall hold its sitting at the place at which it held them immediately before the commencement of the Law Reforms Ordinance, 1972, or at such other place (if any) as the Provincial Government may direct.

(2) But the High Court may, from time to time with the consent of the Provincial Government, hold sittings at such other places within the local limits of its appellate jurisdiction as the High Court appoints.

(3) Such officer as the Chief Justice directs shall give prior notice in the official Gazette of all sittings intended to be held for the exercise of the original criminal jurisdiction of the High Court".

Section 337 of the Cr. P.C.--"Tender of pardon to accomplice.--(1) In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under Section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, Sections 216-A, 369,401,435 and 477-A, the District Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof:

Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.

(l-A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record:

Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.

(2) Every person accepting a tender of pardon under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.

(2-A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.

(3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial."

Jurisdiction of the High Court in matters of quashment of proceedings.--It has been held that the High Court has the power under Section, 561-A of the Criminal Procedure Code, 1898 to entertain the application and to quash the proceedings pending before the Special Judge of Customs, appointed under Section 185 of the Customs Act, 1969. (1980 P. Cr. L. J. 759).

The powers of the High Court under Section 561-A, Cr. P.C. are co-extentive with powers of the Special Judge under Section 265-K of the said Code, and first resort may be made to the remedy available in the court of Special Judge and only in exceptional and special circumstances, the High Court would exercise jurisdiction under Section 561-A Cr. P.C. (PLD 1980 Kar. 49 + PLJ 1979 Cr. (Kar.) 452 Relied on 1979 P. Cr. L.J. 59 + 1979 SCMR 94 + PLD 1967 S.C. 354 & 1979 P. Cr. L.J. 258).

Special Judge cannot exercise powers under Section 561-A, Cr. P.C.--Provisions of Criminal Procedure Code have been expressly made applicable to the proceedings before Court of Special Judge but provision of Criminal Procedure Code inconsistent with Customs Act shall not apply so far as they are inconsistent with the Customs Act, which obviously means that in case of repugnancy between any provisions of the Customs Act and that of the Criminal Procedure Code, the provisions of the Special law i.e. Customs Law will prevail.

The effect of Section 185-B clearly is that it provides for exclusive jurisdiction of Special Judge and Special Appellate Court to try cases, hear applications, appeals and revisions and no other court is competent to try any offence punishable under the Customs Act or to entertain proceedings mentioned therein. Thus even the jurisdiction of the High Court under Chapter XXXII, Cr. P.C. to entertain revision applications in (respect of orders passed or proceedings taken by the Special Judge, has been excluded. But the question raised is that the power under Section 561-A, Cr. P.C. is not available to the High Court.

This section is included in Chapter XLVI of the Cr. P.C. which has not been made applicable to this Court under Section 185-B and Section 185-C only refers to application of the provisions of the Cr. P.C. to proceedings before the Court. of Special Judge. Therefore, Section 561-A is not attracted to this Court even by incorporation of the provisions in the Customs Act. However, as already discussed, Section 561-A, Cr. P.C. does not confer any new power, but merely states that the existing powers of the High Court are not in any way circumscribed by anything in the Code of Criminal Procedure except in so far as the sections expressly dealing with them do so. (See Vishnu Ghanishyam vs. Emperor AIR 1941 Nagpur 97). The question of creating inherent power in the High Court by incorporating Section 561-A in the Customs Act does not, therefore, arise. The conclusion, therefore, is that the powers exercisable by the high Court by virtue of Section 561-A are not available to the High Court. (PLJ 1981 Cr. C. (Kar.) 239).

Supply of copies of certain documents before trial is not only mandatory but its non-compliance cause prejudice to accused.--The provision of Section 265-C which requires that copies of the documents specified therein "shall be supplied" is therefore, an essential stage preparatory to the trial. The insertion of this provision in the wake of the abolition of the commitment proceedings is obviously meant to enable against him so that if the charge be framed against him he can take a plea upon full knowledge and understanding of the prosecution case. The interval of seven days is also significant because it is meant to give the accused sufficient time to study the allegations against him and to prepare his plea in defence. The provision is not only mandatory but, as is obvious, its non-compliance must tend to cause prejudice to the accused. Even otherwise, prejudice to the accused is to be inferred from every breach of a provisions of the law meant for the protection or benefit of the accused. The position would not change even if the accused had himself consented to such breach. (PTCL 1983 CL. 200).

Breach of provision of Section 265-C is not curable.--The code of Criminal Procedure like other Procedural Laws is meant to further the ends of justice and for that purpose contains provisions essential for securing justice. Some of the provisions are of vital nature and cannot be disregarded except at the risk of the validating the trial while the others are not so vital and their breach may amount to an irregularity which can be taken as cured. The nature of. the provision of Section 265-C makes it vital and in the absence of its compliance the trial itself cannot be commenced. The breach of this provision cannot therefore be taken as cured in spite of consent of the accused. The omission to comply with the provisions of Section 265-C must be treated to have vitiated the conviction. (PTCL 1983 CL. 200).

Non-production of the crime property effect.--Where the prosecution failed to produce seized goods at the trial to ascertain as to whether they are in fact foreign origin, the conviction cannot be made. (PTCL 1987 CL. 383).

Trial commences after 7 days from the supply of the copies of the documents.--The words "not later than 7 days before the commencing of the trial" occurring in Section 265-C of the Criminal Procedure Code, 1898 show that the trial in law does not commence until after the expiry of 7 days from the supply of the copies mentioned therein. (PTCL 1983 CL. 200).

Charge can be framed only after trial is commenced.--The trial is commenced after the expiry of 7 days from the supply of the copies of documents under Section 265-C of the Criminal Procedure Code. The charge can only be framed after the court is of the opinion after perusing the police report, and other materials that there is ground to proceed with the trial will frame charge against the accused under Section 265-D. If no copy of the documents as required under Section 265-C is supplied the trial is not commenced and the charge cannot be framed. The accused cannot be convicted on his plea of guilt which he put voluntarily. (PTCL 1983 CL. 200).

There is no compliance of the provision of Section 265-E where copies of the documents under Section 265-C are not supplied.--The omission to comply with the provisions of Section 265-C must be treated to have vitiated the conviction. The contention that without complying with the provisions of Section 265-C, the charge itself could not have been framed and the trial commenced, is not without force. As no copies had been supplied under Section 265-C, the trial could not be said to have commenced. That being so, the stage had not reached for the framing of the charge. The provisions of Section 265-E had not been complied with in spirit. The section required that the charge shall be read and explained to the accused. (PTCL 1983 CL. 200).

Right of the accused to get copies of the statements of all witnesses.--The accused person is entitled to get copies of statements of not only prosecution witnesses but of all witnesses. (PLD 1966 B.J. 30).

185.D Transfer of cases.--(1) Where more than one Special Judges are appointed within the territorial jurisdiction of a Special Appellate Court, the Special Appellate Court, and where not more than one Special Judge is so appointed, the Federal Government may, by order in writing, direct the transfer, at any stage of the trial, of any case from the Court of one Special Judge to the Court of another Special Judge for disposal, whenever it appears to the Special Appellate Court or, as the case may be, the Federal Government, that such transfer will promote the ends of justice or tend to general convenience of the parties or witnesses.

(2) In respect of a case transferred to a Special Judge under sub-section (1), such Special Judge shall not, by reason of the said transfer, be bound to recall and rehear any witness whose evidence has been recorded in the case before the transfer and may act upon the evidence already recorded or produced before the Court which tried the case before the transfer.

General.--This section provides for the transfer of cases by the Special Appellate Court from one court to another court within the territorial jurisdiction of such Special Appellate Court. Where not more than one Special Judge is appointed then the transfer is to be ordered by the Federal Government.

Evidence already recorded by the Judge.--The Special Judge is not bound to recall and rehear any witness whose evidence has been recorded in the case by the judge from whose court the case is transferred.

185"E Place of sittings.--A Special Judge shall ordinarily hold sittings at his headquarters but, keeping in view the general convenience of the parties or the witnesses, he may hold sittings at any other place.

General.--This section provides for the place of sittings of the Special Judge.

At other place.--"At other place" means the place situated in his territorial jurisdiction.

Offences committed outside territorial limits of the jurisdiction.--A Special Judge has no power to try an offence committed wholly outside the limits of his jurisdiction.

185-F Appeal to Special Appellate Court.--(1) Any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 (Act V of 1898), may subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such Appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.

(2) Except as otherwise provided in sub-section (1), the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or a revision preferred under sub-section (1).

General.--This section corresponds to Section 193-E of the Sea Customs Act, 1878. It provides for filing of appeal or revision against the judgment or order passed by the Special Judge. Any such appeal or revision lies to the Special Appellate Court constituted under Section 46 of the Prevention of Smuggling Act, 1977.

In case of no evidence except of the co-accused.--The evidence of disclosure made by co-accused apprehended at the spot was not admissible against the co-accused whose name was disclosed and was also not by itself sufficient to provide basis for the conviction. Where the only evidence consisted of such statements of the co-accused and there was no other evidence available against the accused, the proceedings are liable to be quashed (1977 SCMR 292). Besides statement of co-accused no other evidence connecting accused with crime and recovery of contraband goods from his house subsequent to detection of main offence a separate transaction and having nothing to do with the main offence. It was held that the accused is entitled to acquittal under Section 265-K in the circumstances of the case. (1980 P. Cr. L.J. 754).

Appeal against the judgment of the Special Judge on prosecution side.--Appeal against order of acquittal passed by the Special Judge can only be filed in the Court of Special Appellate Court within 30 days (Now sixty days) through the Law Officer appointed under the Central Law Officers Ordinance, 1970. (PLJ 1980 Cr. C. 347).

Appeal from conviction upon the plea of guilt.--Normally, in an appeal under Section 412 Cr. P.C. from conviction upon the plea of guilt, only the extent or legality of the sentence can be assailed and not the conviction itself. Nevertheless, the convict is not debarred from questioning the prosecution itself if the facts alleged against him do not make out a criminal case or the trial Court had no jurisdiction or his prosecution was otherwise unwarranted. Thus, a convict under Section 188, P.P.C, is not debarred from challenging his conviction on the ground that the complaint had been initiated by a police officer for violation of an order under Section 141, Cr. P.C. passed by a District Magistrate. Similarly, he can challenge the trial on the ground .that the Magistrate who had tried him had no jurisdiction. Moreover, the plea of guilty of an accused will not warrant. Even if the accused has confessed to the offence described in the charge, the Court has yet to examine and hold whether upon the facts admitted an offence is made out in law notwithstanding the plea of guilt. The plea of guilt will not warrant that the court applies the law incorrectly. (PTCL 1983 CL. 200). If no case is made out then appeal can be entertained and accepted. (PTCL 1988 CL 492). Notwithstanding the plea of guilt, the convict is not debarred to file an appeal if there is no foundation for the offence (PTCL 1990 CL 268 and 276).

Duty of the Court.--Even if the accused has confessed to the offence described in the charge, the Court has yet to examine and hold upon the facts admitted an offence is made out in law notwithstanding the plea of guilt. The Trial Court has also to satisfy itself that the ingredients of the offence had been established on the basis of the allegation particularly when the allegations were only to recovery from the possession of the appellant. (PTCL 1983 CL. 200 + PTCL 1990 CL 268 + PTCL 1990 CL 276).

Definition of Special Appellate Court.--See Section 2 (sss) of the Customs Act.

No appeal on the question of sentence.--An appeal cannot be admitted on the question of sentence only. Section 412 of the Criminal Procedure Code, however, creates an exception to the rule in cases where the conviction has taken place on an admission of guilty by an accused person. In such a case the accused is authorised by express statutory provision to question in appeal the sentence of the lower court as regards its extent by which it is meant that the sentence is beyond what the circumstances of the case required or the illegality of the sentence as not authorised by the law. (PLD 1977 Karachi 1049 = PLJ 1977 Karachi 578).

Reduction of sentence.--The appellant was convicted for an offence of possessing of smuggled watches. The appellant was a student at the time of incident and remained in jail for about one month and on bail for more than seven and half years. The watches recovered, were not costly. Keeping into consideration these factors the sentence reduced to the period already undergone and the fine was also from Rs. 5000/- to Rs. 2500/-. (PTCL 1983 CL. 127).

Remedy against the judgment of the Special Appellate Court.--The author is of the opinion that remedy against the judgment of the Special Appellate Court (A persona designata Court) lies under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. There is neither any provision under the Customs Act, 1969 for appeal to the Supreme Court nor the Article 185 of the Constitution provides any appeal against the judgment of the Special Appellate Court. As such the aggrieved party before going to Supreme Court has to invoke writ jurisdiction of the High Court and then an appeal lies to Supreme Court against the judgment passed under writ jurisdiction.

185-G Persons who may conduct prosecution. etc.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Prosecutor appointed under section 47 of the Prevention of Smuggling Act, 1977, shall be competent to conduct prosecution before a Special Judge for and on behalf of the Federal Government and to withdraw prosecution when so required by the Federal Government.

(2) A law officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government.

General.--The cases before the Special Judge are to be conducted by the Special Prosecutors duly appointed under Section 47 of the Prevention of Smuggling Act, 1977, whereas proceedings before the Special Appellate Court are to be conducted by a Law Officer appointed under the Central Law Officers Ordinance, 1970.

Section 47 of the Prevention of Smuggling Act, 1977.--Special Prosecutors etc.--"(1) For the purposes of conducting proceedings before the Special Judge, the Federal Government may appoint persons who have been advocates of a High Court for a period of not less than five years to be Special Prosecutors on such terms and conditions as may be prescribed and any person so appointed shall be competent to conduct proceedings under this Act before the Special Judge for and on behalf of the Federal Government and, if so directed by the Federal Government, to withdraw such proceedings.

(2) A law officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), shall be competent to conduct proceedings before the Special Appellate Court for and on behalf of the Federal Government, and, if so required by the Federal Government, to withdraw such proceedings.

(3) When a special Prosecutor appointed under sub-section (1), or a law officer referred to in sub-section (2) is, for any reason, temporarily unable to conduct proceedings before the Special Judge or, as the case may be, the Special Appellate Court, the proceedings shall be conducted by such person as may be appointed in this behalf by the Special Judge or, as the case may be, Special Appellate Court."

Appointment of Special Public Prosecutors.--For rules for appointment of Special Public Prosecutors see Notification No. S.R.O. 354(I)/90, dated 2nd April, 1990, reported as PTCL 1990 St. 654(ii).

186. Detention of goods pending payment of fine or penalty.--(1) When any fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, in respect of any goods, such goods shall not be removed by the owner until such fine or penalty has been paid.

(2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any other goods belonging to the same owner pending payment of such fine or penalty.

General.--This is new provision which is aimed at realisation of the penalties and fines imposed or to be imposed.

Appropriate Officer.--The Inspector/Preventive Officer/Examiner has been assigned the functions of the appropriate officer for the purpose of the provisions of Section 186 of the Customs Act, 1969. (See Notification No. S.R.O. 56(I)/93, dated 19th January, 1993, reported as PTCL 1993 St. 461 or see page 586 of the Customs Rules and Notifications, 1998-99 Edition -'An allied publication).

Deposit pending appeal.--See Section 194 of the Act.

Recovery of Government dues.--See Section 202 of the Act.

Sale of goods other than confiscated goods and application of the sale proceeds.--See Section 201 of the Act.

187. Burden of proof as to lawful authority, etc.--When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him.

General.--This section corresponds to Section 193-G of the Sea Customs Act, 1878.

Scope of Section 187.--Section 187 covers two situations which we state as follows:--

(a) when a person is charged with an offence under the Customs Act, the burden of proof is cast upon him to show that he had the lawful authority to commit that act.,

(b) when a person is found in possession of any goods the burden of proof is cast upon him to show that he was holding such goods under some lawful authority, permission or licence, etc.

In situation (a) the question whether the burden off proof solely lies upon the petitioner to disprove allegations of misdeclaration and misdescription levelled by the Customs authorities and whether the Customs authorities are under no obligation to lead evidence and discharge any onus of proof. This part of Section 187 of the Customs Act perhaps appears to be contrary to the general principle of the law of evidence contained in Article 117 of the Qanun-e-Shahadat that who so ever alleges existence of a particular fact must prove the same.

On a closer scrutiny of the provisions of Section 187 and the case law settled by our courts on the subject it appears that in such a situation it is only the evidential and tactical burden of proof which is cast upon the accused while the legal burden to bring home the allegations remains with the prosecution.

Situation (b) provides that where a person is found to be in possession of certain goods which fall under a prohibited category or which in an unlawful manner find place in the possession or custody of the accused. In such cases the burden is upon the accused to show that he falls under some exemption or exception to hold such goods. This type of eventuality as envisaged and stated in situation (b) above is essentially a statement of the general principle of the law of evidence contained in Article 121 of the Qanun-e-Shahadat that who so ever claims to fall under a preferential or exempt or excepted category must show that he fulfills that condition to fall within that category. This obviously should not be confused with the factum of possession for which no presumption or burden of proof has been spelt out, in view whereof the possession itself has to be proved independently by the prosecution beyond all reasonable doubt. (PTCL 1996 CL. 1).

Applicability of Section 187.--Section 187 does not put entire burden to disprove the entire case upon the accused alone. If it is so, the executive authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave Section 187 susceptible to a constitutional challenge upon its vires on this score alone. (PTCL 1996 CL. 1).

Which party bears the legal or evidential burden.--In order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, the case law on the subject and also common sense and equity. (PTCL 1996 CL. 1).

Where the petitioner has already discharged its evidential burden the legal burden shifts upon the Customs authorities to discharge. (PTCL 1996 CL. 1).

The admission of writ petition to regular hearing confirms that the case by the respondent raises a doubt in the minds of court and is arguable. (PTCL 1996 CL. 1).

Person in possession.--The content and import of Section 187 are very wide. It applies not only to the actual smugglers from whose possession the goods are seized but also to those who came into possession of the goods after having purchased the same after the same had passed through many hands or agencies. (AIR 1957 S.C. 877 = 1957 SCR 1110). Where a person was found in possession of large quantity of gold it was held that while Section 187 has the result of placing the burden of proof that the gold was not smuggled was on the accused, it is of no assistance to the prosecution to prove that the accused was carrying the gold knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into the country. Once, however, it is found, in consequence of the provisions of Section 187 (the accused not having discharged the burden that lay on him that the gold was not smuggled) that he was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found and the fact that the accused was not the person who was expected to carry so much gold (286 tolas), all these circumstances establish beyond a shadow of doubt that the accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of the gold into the country. When all these circumstances are taken together, it is not possible to say that he might be carrying the gold innocently having purchased it from somebody. (AIR 1965 S.C. 476).

Possession must be proved.--The presumption is against the person from whose possession the goods were seized. There is no presumption however as to possession itself. That is a fact which the prosecution must itself prove. Where there has been not even a faint attempt to prove anything of the kind; there is not even so much as oral evidence of neighbours to say that the appellant used to live in the premises in question; therefore no presumption arises against the accused. (1975 P. Cr. L.J. 797).

Burden of proof--Copy of show cause notice served on petitioner (.purchaser of contraband car), sent to vendor of the car but such communication was returned back with the report that the address of the vendor as given in Registration Book of the car was bogus. Car in question was shown registered in Pakistan twice at two different places and registration Numbers at both places were found to be bogus. In these circumstances and quite apart from the fact that according to Clause (90) of Section 156 (1) of the Customs Act, 1969, it was the burden of petitioner to prove that duty had been paid on the car seized from him, Section 187 of the Customs Act would be attracted to such cases. In such cases the petitioner is required to prove his possession of the car being with lawful authority under valid licence or permit as required under Section 187 of the Act. (1980 SCMR 114).

"Alleged to have committed."--The scope of this section is very wide because mere allegation of the commission of an offence under the Act brings the case within its scope; but as it is a penal provision and by placing burden of proof on the accused the State is infringing the rights of the citizen. It appears that allegation must at least be reasonable to the mind of the officer making it and the High Court may, it is submitted, go into the reasonableness of the allegation in writ jurisdiction to save the citizen from undue harassment. The presumption against the accused under Section 187 is not to be drawn until the explanation of the accused is taken into consideration. The normal principle will apply, namely, that the accused is entitled to benefit of doubt and where a reasonable explanation is offered which is acceptable and raises a doubt that the prosecution has not discharged the burden though the accused may not have proved the explanation. It was enough for this purpose if he-succeeded in raising a doubt as to whether or not the prosecution was true. Therefore despite Section 187, if upon the conclusion of the evidence the court is of the opinion that there is a doubt as to the guilt of the accused the benefit of doubt must be given to him and he must be acquitted (PLD 1973 Kar. 659=PLJ 1973 Kar. 14). Where, however the seized goods were of foreign origin and their import into the country was prohibited, according to Section 187 of the Customs Act, the burden was on the petitioner to prove that the goods in question had not been imported into the country unlawfully and further that no act was committed in relation to those goods so as to defraud the Government of any duty payable on them. (PLD 1970 Kar. 97=22 DLR (WP) 121). Where there was no evidence to attribute knowledge of smuggling of the goods to the two co-accused while the driver of the truck slipped away, the burden of proof lay on the two accused to prove that, they were unaware of the smuggled goods (PTCL 1994 CL. 322).

Criminal offences.--The presumption raised under the Act is not confined to customs offences cognizable by customs officers. It is available in criminal offences triable by court also. (ILR (1960) 10 Raj. 1274 = 1961(2) Cri. L. Jour. 406).

Burden of proof.--Also see Section 156(2) of the Act.

188. Presumption as to documents in certain cases.--Where any document is produced by any person under this Act or has been seized under this Act from the custody or control of any person, and such document is tendered by the prosecution in evidence against him, the Special Judge shall,--

(a) unless tile contrary is proved by any such person, presume--

(i) the truth of the contents of such document;
(ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Special Judge may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

General.--The provisions of this section are new. This section departs from the general provisions as contained in the Evidence Act, 1872 Qanun-e-Shahadat 1984 and the Stamp Act, 1899 so far as presumption regarding truth of contents of certain documents and admissibility of the documents in evidence in spite of the fact that the documents are not duly stamped, is concerned.

189. Notice of conviction to be displayed.--(1) Upon the conviction of any person for the offence of smuggling, the Federal Government may require him to exhibit in or outside, or both in and outside, his place of business, if any, notices of such number, size and lettering, and placed in such positions and containing such particulars relating to the conviction as it may determine, and to keep them so exhibited continuously for a period not less than three months from the date of conviction; and, if he fails to comply fully with the requirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for which he was convicted.

(2) If any person so convicted refuses or fails to comply fully with any such requirement, any officer authorised in that behalf by an order of the Federal Government in writing may, without prejudice to any proceedings which may be brought in respect of any such refusal or failure, affix the notices in or outside, or both in and outside the place of business of such person in accordance with the requirement of the Federal Government in pursuance of sub-section (1).

(3) If, in any case, the Federal Government is satisfied that the exhibition of notices in accordance with the requirements of the provisions of sub-section (1) or sub-section (2) will not effectively bring the conviction to the notice of persons dealing with the convicted person, the Federal Government may, in lieu of, or in addition to, any such requirement, require the convicted person to exhibit for such period, not being a period less than three months on such stationery used in his business as may be specified in the requirement, a notice placed in such position and primed in type of such size and form and containing such particulars relating to the conviction as may be specified in the requirement; and, if he fails to comply fully with the requirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for Which he was convicted.

General.--This section corresponds to Section 193-1 of the Sea Customs Act, 1878.

Offences and penalties.--See clause (98) of Section 156(1) of the Customs Act.

190. Power to publish conviction.--If the Federal Government is satisfied that it is necessary so to do, the conviction and the particulars relating to the conviction of any person for the offence of smuggling may be published in the official Gazette.

General.--This section corresponds to Section 193-1 of the Sea Customs Act, 1878.

191. Imprisonment may be of either description.--Imprisonment for any offence under this Act may, in the discretion of the Special Judge be either simple or rigorous.

General.--This section corresponds to Section 193-L of the Sea Customs Act. In the original Bill the provision was the same as given in the said Act. On the recommendation of the Select Committee the provision has been amended in the present shape. Under the old law the imprisonment was rigorous except as otherwise provided in the Act.

Imprisonment.--Imprisonment is of two kinds; rigorous and simple. In the case of rigorous imprisonment, the offender is put to hard labour, such as grinding corn, digging earth, drawing water, cutting fire-wood, bowing wool, etc. In the case of simple imprisonment the offender is confined to jail and is not put to any kind of work.

Imprisonment to run from the date of conviction.--A sentence of imprisonment must be made to operate from the date of conviction and not from a date prior to the date on which the sentence is passed. Where, therefore, the judge ordered that the period already undergoing in custody during the trial be counted towards sentence, it was held that the order was illegal and must be quashed. [(1954) 4 Raj. 438]. In Pakistan under Section 382-B of Criminal Procedure Code the period already undergone in custody during the trial is countable towards sentence.

Sentence may be wholly or partly rigorous or simple.--In every case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple. (see Section 60 of P.P.C).

192. Duty of certain person to give information.--(1) Any person who comes to know of the commission of any offence under this Act, or an attempt or likely attempt to commit any such offence, shall, as soon as may be, give information thereof in writing to the officer-in-charge of the nearest custom house or customs-station, or if there is no such custom-house or customs-station, to the officer-in-charge of the nearest police-station.

(2) The officer-in-charge of a police-station who receives any information mentioned in sub-section (1) shall as soon as possible communicate it to the officer-in-charge of the nearest custom-house or customs-station.

General.--Sub-section (1) of the section is verbatim reproduction of Section 193-M of the Sea Customs Act. Sub-section (2) is a new provision; it provides that the officer-in-charge of a police station who receives any information regarding the commission of any offence under the Customs Act or any attempt or likely attempt to commit any such offence from any person, shall as soon as possible communicate it to the officer-in-charge of the nearest custom-house or customs-station.

The provisions of this section to some extent are identical to the provisions as contained in Section 44 of Cr. P.C.

The provisions of Section 192 have been designedly so made that crimes under the Customs Act are brought to book and not suppressed by persons knowing about them. The authorities should make use of these provisions so that the object of the Legislature in enacting the provisions, is not lost completely.

Object.--The object of this section is only to ensure that offenders are dealt with under the law, so that where adjudication proceedings' have to be taken up for the confiscation of the goods or the imposition of penalties etc. that the same can be carried out by the customs Authorities. (PTCL 1988 CL. 74).

Police officers to arrest persons and investigate offences.--The authorised police officer before communication of the information of the commission of offence can act under the Customs Act and is competent to arrest any person committing offence under the Customs Act and to investigate them independently (PTCL 1988 CL. 74).

Only one person to give information.--When once information of the fact of an offence has reached the customs officer or police officer the object of the section gets fulfilled and it is not reasonable that every other person who may possibly be bound to give information should be prosecuted for not having done so. (4 Cal. 623 (DB) + AIR 1926 Nag. 217).

Information: Meaning of.--Information means something which the person bound to report knows or has reason to believe to be true and not any hearsay or vague surmises which the people around him might have put into his head [19 Suth W.R. (Cr.) 57 (DB)]. Where a person who could speak of an offence only from hearsay, gave a report based on such hearsay, it was held that the report could not be used as evidence to corroborate his evidence. (AIR 1925 Lah. 418).

It is not necessary that the information should be signed by the informant. [11 Cri. L. Jour 3 = 3 Sind L.R. 132(DB)] (Case under Section 182 P.P.C.).

Effect of not giving information.--An omission to give information under this section is an offence under item (86) of Section 156(1) of the Customs Act. The giving of false information of the commission of an offence is punishable under Section 182 of the P.P.C.

Offences and penalties.--See clause (86) of Section 156(1) of the Customs Act.