1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal is directed against the judgment dated 24th September, 2002, passed by the learned Special Judge, Customs and Taxation Karachi, in case No.118-A of 1998, whereby the appellant Muhammad Rafiq has been convicted under section 156 (1)
2. (8)(89) of the Customs Act, 1969, and has been sentenced to detention till rising of the Court and to pay fine of Rs.1,00,000 in default whereof he has to undergo imprisonment for six months.
3. ' Heard Mr. Sohail Muzaffar, learned counsel for the appellant and Mr. Mehmood Alam Rizvi, learned Standing Counsel.
4. ' Mr. Sohail Muzaffar, has contended that proceedings were initiated by the Customs Department before the Adjudicating Officer which were concluded on 1-8-1998 by order-in-original passed by the learned Additional Collector-I, Hyderabad. The proceedings were against the present appellant along with Nawabshah son of Adro Gul and Abdul Rehman son of Sirajuddin. It was held that the betel-nuts recovered from the possession of Nawabshah and Abdul Rehman were smuggled which were owned by appellant Muhammad Rafiq. It was further held that the duty and taxes were not paid and therefore, the betel-nuts were liable to confiscation. Option was given to the claimant/owner (appellant Muhammad Rafiq) to get the betel-nuts released on payment of redemption fine in addition to the duty and taxes. An appeal was preferred before Collector (Appeals-II) Karachi, which was decided vide order dated 30-9-1998. The learned Collector (Appeals) held that the imposition of redemption fine was unjustified and unwarranted and the redemption fine was waived. It was held that the charges framed could not be proved by the prosecution and therefore, the orderin-original was not upheld.
5. ' Simultaneously, with the adjudication proceedings, an interim challan was also submitted before the learned Special Judge, (Customs and Taxation) Karachi, under section 185 of the Customs Act.
6. In the criminal challan, Nawabshah son of Adro Gul and Abdul Rehman son of Sirajuddin and others were shown as the accused persons. A perusal of record shows that on 23rd April, 1999, the learned Special Judge, passed the order reproduced below:-- ' Order On 1-7-1998 Headquarters Intelligence Staff Customs, Hyderabad, on tip of, intercepted a truck at 9-00 a.m. Near Hala Naka, Hyderabad and recovered 198 gunny bags stuffed with smuggled betel- nuts. Nawabshah the driver of the truck and Abdul Rehman another person with him were arrested.
7. The betel-nuts were then weighed and case registered.
8. ' After submission of interim Charge-sheet the case was being investigated. Today the Investigating Officer. M. Iqbal,K.K. Has submitted a report that the Interim Challan may be treated as final one.
9. ' The Adjudication Order in respect of the betel-nuts in question shows that one Muhammad Rafiq claimed the betel-nuts pleading further that those were imported under Bill of Entry No.607 dated 10-9-1996. The Adjudicating Authority Additional Collector Customs, Hyderabad gave finding that some other consignment of betel-nuts was imported under said Bill of Entry and the same was being misused for transporting the smuggled betel-nuts. Consequently the goods were confiscated and option given to the claimant for getting them released on payment of duty, taxes plus penalty. He is said to have got the goods released after payment of the necessary taxes and penalty. Obviously the claimant/owner was in consttuctive possession of the goods throughout.
10. Even otheiwise he can be held for abetment. In the circumstances let Notice be issued to him as to why he should not be joined as accused and try for the offence."
11. ' Copy of this order was served on the appellant for furnishing the explanation. The notice was served on the appellant through Mr. Pervaiz Mustafa, Advocate of Messrs Muzaffar & Company Advocates, 27 Jahangir Khothari Building, M.A. Jinnah Road, Karachi. It appears that nobody appeared before the learned Special Judge in response to the above notice and therefore, on 18- 6-1999, the learned Special Judge passed the following order joining the appellant as accused and order for issuance of N.B.W.:-- ' Order ' In this case the betel-nuts alleged to be smuggled one were later on claimed by Muhammad Rafiq in the adjudication proceedings, The adjudication order also shows that the betel-nuts were found to be smuggled one. However, the claimant was allowed to receive them on payment of customs duty and other taxes with penalty. The fact that Muhammad Rafiq claimed the betel-nuts and the finding of adjudicating authority that the betel-nuts were smuggled property and the claimant was given option to get the confiscated betel-nuts released on payment of duty, taxes and penalty. He is reported to have got the goods released after payment of the taxes and penalty.
12. The claimant/owner is person concern, therefore, there are sufficient grounds to proceed against him also. Consequently he is hereby joined as accused in this case. The offence is non-bailable.
13. Issue N.B.W. Against him."
14. ' After the issuance of N.B.W., the appellant approached this Court seeking quashment of the proceedings on the ground that the proceedings against him, without any charge-sheet and without sufficient information implicating the appellant for the commission of offence was not warranted in law and was liable to be quashed. Along with the application under section 561-A, Cr.P.C. , an application for bail before arrest was also submitted. The application was disposed of by learned Single Judge of this Court, by consent order dated 30th November, 1999, whereby the appellant was directed to appear before the learned trial Court. The operation of N.B.W. Was suspended. Thereafter, the appellant appeared before the learned trial Court with prayer for bail before arrest. Interim bail was granted which was confirmed vide order dated 3rd October, 2000 which reads as follows:-- ' Order ' On 1-7-1998 Headquarters Intelligence Staff Customs, Hyderabad, on tip of, intercepted a truck at 9-00 a.m. Near Hala Naka, Hyderabad and recovered 198 gunny bags stuffed with smuggled betel- nuts. Nawabshah the driver of the truck and Abdul Rehman another person with him were arrested.
15. The betel-nuts were then weighed and case registered.
16. ' In the adjudication proceedings Muhammad Rafiq claimed the betel-nuts and was given option to get them released on payment of duty, taxes and penalty. He is said to have got the goods released on payment of these taxes and penalty. After that he was joined as accused by this Court and warrants were issued against him. He then furnished surety before the Honourable High Court and filed present application for bail before arrest. He was granted interim pre-arrest bail.
17. ' Since the date of interim pre-arrest bail the accused has been appearing before this Court. He is not required for the purpose of investigation. The conclusion of the trial is not in sight. In the circumstances the denial of bail to the accused at this stage is not going to serve any substantial purpose. He has also not violated the terms of interim bail. Interim bail is hereby confirmed on same terms and conditions."
18. ' Subsequently, the appellant was tried and convicted through the judgment impugned in this appeal.
19. ' Mr. Sohail Muzaffar, learned counsel for the appellant has raised objection to the entire proceedings before the learned trial Court, contending that the learned Special Judge, can take cognizance of an offence under section 185-A of the Customs Act:--
(a) Upon a report in writing made by an officer of Customs or by an officer. Incharge of a police station or by any officer especially authorized 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 the Customs Act or under the Prevention of Smuggling Ordinance, 1977.
20. ' He has further submitted that upon receipt of report under Clause (a) of subsection (1) of section 185-A, the Special Judge, shall proceed with the trial of the accused. However, on receipt of a complaint or information under Clause (b) or acquired in the manner referred to in Clause (c) of subsection (1), the Special Judge may before issuing a summons 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. He has submitted that under subsection (4) of section 185-A, if, after conducting such inquiry 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 the law.
21. ' Mr. Sohail Muzaffar, has contended that admittedly there was no Charge-Sheet/report, against the accused in this case as in the interim challan two persons Nawabshah and Abdul Rehman were shown accused. He has further submitted that neither any complaint was received by the learned trial Judge nor any information was received by him from any person. He has contended that a bare reading of the above provisions shows that in the case of information of facts constituting such offence or upon his own knowledge acquired during any proceedings, the learned trial Judge is required to be satisfied that there is sufficient ground for proceeding. He has submitted that without sufficient grounds nobody can be tried for a criminal charge in an arbitrary manner. He has maintained that in the order dated 23-4-1999, the learned trial Judge treated the interim challan as final and further observed that the adjudication order shows that one Muhammad Rafiq, claimed the betel-nuts pleading that they were imported under Bill of Entry No.607 dated 10-9-1996. He further observed that, "obviously claimant/ owner was in constructive possession of the goods throughout. Even otherwise he can be held for abetment."
22. ' This is the only reason for issuance of notice to the appellant and thereafter while passing order joining the appellant as an accused it has been observed as follows:-- "He is reported to have got the goods released after payment of the taxes and penalty. The claimant/owner is person concern, therefore, there are sufficient grounds to proceed against him also. Consequently he is hereby joined as accused in this easy. The offence is non-bailable. Issue N.B.W. Against him."
23. ' Mr. Sohail Muzaffar, learned counsel for the appellant has submitted that the learned trial Judge decided to proceed against the appellant, but has not specified grounds or facts leading him to this conclusion, with the result that the opinion is subjective. According to him, there is no objectivity in the opinion of the learned trial Judge and consequently, does not fulfil the requirement of law that a person can be proceeded against if there is sufficient ground for proceeding against him. He has further submitted the entire proceeding is corum non judice and is liable to be quashed.
24. ' The learned Standing Counsel, has frankly stated that the requirements of law contained in section 185-A of the Customs Act, have not-been fulfilled. I have carefully considered the1 facts on record and contentions raised by Mr. Sohail Muzaffar, learned counsel for the appellant. It is trite law that the things should be done as they are required to be done in law or not at all. This principle must be strictly adhered to, particularly, in criminal cases, as such cases involve the liberty of the citizens and conviction if any is always an stigma on the person convicted. On perusal of section 185-A of the Customs Act, I find that it is specifically provided in subsection (2) that on receipt of report under Clause (a), the Special Judge shall proceed With the trial of the accused. The language used is' mandatory in terms for the reason that the Legislature has used the words, "shall proceed with the trial". However, in respect of receipt of a complaint or information under Clause
(b) or acquiring of own knowledge referred to Clause (c) of subsection (1), it is provided that the.
25. Special Judge may before issuance of summons 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. After conducting inquiry himself or through the Magistrate or Police Officer or an officer of customs, the learned trial Judge is requited to examine the material objectively and thereafter, to apply his mind whether 'there is no sufficient ground for proceeding, and in such case he shall not issue any process against a person complained against or in respect of whom the learned Special Judge has acquired knowledge on his own. If sufficient ground for proceeding is available theft only he can proceed against the person complained against.
26. In the present case, I find that merely because the appellant claimed the betel-nuts, the learned trial Judge presumed that he has abetted in the commission of offence. I am afraid, there is no room for any such _presumption or intendment in the realm of criminal administration of justice.
27. Even in the order dated 18-6-1999, whereby the appellant was directed to be joined as accused it is merely stated that there are sufficient grounds to proceed against him. The learned trial Judge merely reproduced the words used in section 185-A, which is not sufficient compliance of the requirement of law. The learned judge was required to record the grounds on the basis -whereof he came to the conclusion that in the absence of any report under Clause (a) of subsection (1) of section 185-A of the Customs Act, the proceedings shall be initiated against the appellant and he should be joined as an accused. In the absence of such grounds shown and the reasons recorded, I am of the opinion that the learned trial Judge misdirected in joining the appellant as an accused.
28. Consequently, the jurisdiction assumed by the learned trial Judge by taking cognizance against the appellant in a manner not warranted in law was not proper, rendering the entire proceedings based on such wrong assumption of jurisdiction to be invalid and void. No emphasis is required on the point that every proceeding without jurisdiction is void ab initio.
29. For the foregoing reasons, it is held that the entire proceeding in this case against the appellant Muhammad Rafiq, was without jurisdiction and consequently, the impugned judgment is illegal, void ab initio and is set aside accordingly. The appellant has paid the fine imposed by the learned trial Court. It is directed that the fine be refunded to him.