1. SHAH NAWAZ KHAN, J.-Ajab Khan son of Muhammad Jan and Amir Said son of Habib Said, residents of Peshawar city were apprehended by the Suburb Police, Peshawar City headed by a Sub-Inspector, pulling a Rehra which on search contained 14 than of Flat Crepe and 53 packets of cut pieces of Cloth, all of foreign origin, weighing four maunds, 33 seers and six chittanks. The accused could not produce valid documents of import and the same was, therefore, treated to be smuggled property. They were arrested and a case was registered against them. The case cloth was examined by a Custom Officer and was found to be of foreign origin. The case property detailed in Exh. P. E. Was produced in Court by P. W. Muhammad Rafiq, Custom Inspector. Its market value was considered to be Rs. 26,000, but its C. I. F. Value was worked out as Rs. 6,500. At the conclusion of the trial, the accused were found guilty of offence punishable under section 156/89 of the Customs Act, 1969. They were convicted accordingly and each one' of them was sentenced to one year's R. I. And a fine of Rs. 200, or in default to undergo further one month's R. I.
2. The case property was placed at the disposal of the Customs authorities for dealing with it according to law. On the other hand, the Collector, Central Excise and Land Customs, Peshawar, proceeded with the case property and be said that the present appellant was himself appearing before the Collector and Mr. Akhtar Ali Shah has appeared before him to be the owner of the case cloth. The Collector by his order dated 8-5-1979 returned the cloth to them on payment of a token fine of Rs. 500, and customs duty. The two accused convicts went on appeal before the High Court from the order of the Special Judge, Customs, Peshawar dated 13-12-1976. A Judge of the Peshawar High Court heard the appeal but dismissed the same holding that the sentence awarded to the accused appellant was quite commensurate with the charges levelled against them and he declined to interfere with the order of the Special Judge Customs.
3. These appellants then came up to this Court with a petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, for leave to appeal against the judgment dated 18-3-1978 of the Peshawar High Court in Criminal Appeal No. 232 of 1976. Leave was granted with a view to consider:
(1) Whether under the provisions of the Customs Act the police have the power to investigate any offence; and
(2) Whether the challan submitted to the Court of Special Judge (Central) Customs and Taxation at Peshawar in this case, under the signatures of the Superintendent of Police can be construed to be a complaint within the meaning of section 185-A (6) of the Customs Act, so as to bold that the learned trial Judge had the Jurisdiction to proceed with the trial of petitioners.
4. The occurrence took place on 25-8-1975 whereafter the challan was submitted in the Court of Special Judge and there is now no dispute about these facts. Learned counsel for the present appellants had submitted that the challan in this case was wholly illegal, because under section 185-A (6) of the Customs Act, the complaint is to be drafted and signed by a competent authorised Officer. However, Notification No. 1024 was issued on 22-7-197 and that notification was holding the field at the relevant time. In sec--tion 185-A as amended, it is provided that "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 police station or by any other Officer especially authorised in this behalf by the Federal Govern--ment . . ." It appears that when the petition for leave was considered, this legal position was not brought to the notice of the Court. In any case, the challan was submitted under the signature of the Superintendent of Police, and it could be treated to be a complaint even under the old law duly authenticated by the Superintendent of Police. The grounds taken by the learned counsel for the appellants that in this case the Police should have not figured at all, or that they should not have investigated the case much less to submit the challan would appear to be illogical. Reliance was placed on an authority of the Karachi High Court Allah Warave v. The State (1972 P Cr. L J 585Undoubtedly the Police Officers were then not empowered to investigate case under the Customs Law but ever since the statutory position has changed, the authority laid down in that case may not be applicable.
5. This amendment provides special procedure for the trial of such offences and it is that procedure which has to be followed in the instant case. Here it may also be pointed out that if for argument sake the investigation was not properly conducted or it did not fulfill the procedure laid down, could it be said that the Special Judge was ousted of his jurisdiction to try the accused under the Customs Act. Under section 161 any person duly empowered for the prevention of smuggling who has reason to believe that any person who has committed an offence of smuggling under this Act may arrest such person. In subsection (10) of section 161 it is provided that if the Officer of customs or the Officer in charge of a police station, as the case may be, after holding an enquiry as aforesaid, is of the opinion that there is no sufficient evidence for suspicion against such person, he shall release him on his executing a bond with or without sureties as the Officer may direct to appear as and when required before the Special Judge, may make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate Officer.
6. All these factors taken together would lead to the conclusion that the action taken in the instant case was proper and the Police had the authority to investigate. The Custom Officer was fully associated in the investigation and it was the Custom E Inspector who had produced the recovered goods before the Special Court. In these circumstances, it may not be fruitful to consider as to where the recovered goods had been kept in safe custody. These remained under the control of the Customs Officer right up to the end and he had full jurisdiction over the same.
7. In the instant case when the recovered goods and their possession was considered by the Customs Collector, and the Central Board of Revenue, the Collector, Central Excise and Land Customs in the presence of the owner of the recovered goods and Amir Said accused-appellant observed that the recovery had not been witnessed by any independent person. The Central Board of Revenue accordingly allowed the application of Amir Said accused---appellant and held that the whole proceedings stood vitiated.
8. Vide order dated 8-5-1979 of the Collector, Central Excise and Land Customs, Peshawar, the matter appears to have been settled, and the recovered cloth has been returned on payment of nominal fine and Customs duty. In these circumstances, we will accept this appeal in part. We consider that in the circumstances of the case, the sentence undergone is sufficient and, therefore, the sentence of imprisonment imposed on the accused-appellant is reduced to the sentence of imprisonment already undergone. Fine imposed on the accused-appellants, who were carriers, is remitted. They are discharged from the surety bonds. They shall stands released, if not required in any other case.