Mian Fasih-ul-Mulk, J.--Sartaj, petitioner faced his trial in the Court of Special Judge (Central)
Customs Taxation & Anti-Smuggling, Peshawar on the charges leveled against him vide FIR No. 68 dated 18.03.1986 Police Station Akora Khattak under Section 156(89) of Customs Act that he was smuggling, in possession and transporting charas and betel nuts of foreign origin.
2. On conclusion of trial, petitioner was found guilty of the charge and convicted under Section 156(1)(89)/2(s) of the Customs Act, 1969 to the sentence of five years imprisonment and a fine of Rs. One lac or in default thereof to undergo one year imprisonment.
3. Petitioner, being not satisfied with his conviction and sentences, filed an appeal before Special Appellate Court (Custom), Peshawar High Court, Peshawar which too was dismissed on 16.04.2001.
4. Petitioner has thereafter filed instant writ petition for declaring the impugned judgments dated 15.08.2000 of trial Court and that of Customs Appellate Tribunal dated 14.05.2011 in Cr.A. No. 353/2000 as illegal, without jurisdiction and without lawful authority on the grounds that neither the mandatory provisions of Customs Act were complied with nor the prosecution was able to prove that the charas was of foreign origin, which has caused serious prejudice to the petitioner.
5. It was contended on behalf of petitioner that prosecution has miserably railed to connect the petitioner with commission of offence, as petitioner was having no connection either with the vehicle as its owner/driver or the contraband in question, so much so that even the case property was also not produced by prosecution before the trial Court.
5. On the other hand, counsel for respondents while supporting the impugned judgments, also questioned the maintainability of instant petition.
6. We have heard learned counsel for the parties and have" also perused the record.
7. Perusal of record would reveal that on 17.03.1986, the Excise and Taxation staff on spy information intercepted truck No. PRC-8405 at G.T Road near the office of Town Committee and recovered charas weighing 5680 kgs alongwith 4000 k.gs of betel nuts beneath the sugarcane loaded in the truck. Petitioner was allegedly arrested while his companion succeeded to run away. Sample of 4 grams was separated from charas for chemical analysis and the remaining stuff was sealed into a separate parcel. The prosecution produced six witnesses at trial and on appraisal of prosecution evidence, petitioner was convicted and sentenced accordingly.
8. As per deposition of PW-6 Noor Muhammad, Investigating Officer, owner of the truck was one Ghiasuddin. Hidayatur Rehman Muharrir was examined as CW-2, who disclosed that truck was handed over to Ikramullah on superdari. Neither from the FIR, nor in the recovery memo, it is shown that at the relevant time, petitioner was driving the truck. Admittedly, entire 'case property was not deposited in State Warehouse and same was also not produced before the Court. Only 4 grams from such a huge quantity of charts was sent to the Laboratory without obtaining samples from each and every packet which allegedly contained charas. Over and above, prosecution could not produce any evidence to the effect that alleged contraband charas was of foreign origin, when it was specifically mentioned in the charge framed against petitioner by trial Court that he was smuggling foreign origin charas and betel nuts.
9. As per record, neither petitioner was owner of the truck, nor it is proved on record that in what capacity petitioner was present in the truck, either its driver or cleaner. Guilty intention is a necessary ingredient of the offence under Section 156(1)(89), which is required to be proved by conduct of the accused. From the evidence produced by prosecution, it is difficult to perceive that guilt of petitioner has been established in accordance with the requirements of law and principle of justice. When petitioner was not owner of the truck and his presence in the truck as driver or cleaner also becomes doubtful, then how the recovery of. alleged narcotics could be debited to his account without establishing his conscious knowledge for concealing the same beneath the sugar-cane.
9-A. Mere fact of importation or exportation of certain goods being prohibited by law does not amount to smuggling because goods in order to be smuggled must be either specified in clause-9 of Section 156 of Customs Act, 1969 or be notified by Federal Government under Section 2(s)(a) of the Act. It cannot be suggested that the legislature ever intended that the contravention of all the prohibitions under all the laws in the country excepting covered under Sections 156 Clause-9 and 2(s) should be made punishable under the Customs Act.
10. The question of maintainability of writ petition, by now has been settled. In the case of Asghar Ali and another vs.. The State (1999 SCM R 654), it is laid down by the apex Court that Special Court or a Tribunal created under an Act and presided over by a serving Judge of High Court, while hearing a case, exercises the same powers as are available to a High Court under procedural laws but such exercise would not make that Court a High Court for such reason. A Division Bench of this Court in the case of Saeedullah us. The State (W.P. No. 189/2001) decided on 21.09.2004, while following the dictum of the august Supreme Court of Pakistan laid down in 2001 SCM R 338 has held as under; "We are aware of the scope of writ jurisdiction which being limited can neither be a substitute for appeal nor can be exercised to substitute the finding of the forums below on a question of fact but where it is based on non-reading or mis-reading of evidence or erroneous assumption of fact, the decision can well be quashed because the very condition for the conferment of jurisdiction on a Court of law is to reach and render a finding on a proper appraisal of evidence."
11. For the aforesaid reasons, we are of the view that the impugned judgments/orders of Respondents No. 2 and 3 are without jurisdiction and without lawful authority, being based on inadmissible evidence; hence the same are set aside and petitioner is acquitted of the charge. His sureties are absolved from the liability of their bail bonds.