1. This is an application under sections 435, 439 and 561-A, Cr. P. C. The applicant has been sent up for trial under section 156 (1), clause (8) of the Customs Act and his case is pending trial before the Special Judge (Customs and Taxation), Karachi. By the present application the appli--cant seeks to challenge the cognizance of the case taken by the learned Special Judge as being without jurisdiction and the proceedings following thereon be quashed. The petition was admitted to regular hearing on 8June, 1977 and the proceedings pending before the trial Court have been stayed.
2. The only question raised in this petition is that even if all the allega--tions of the prosecution are proved, no offence punishable under sec--tion 156 (1), clause (8), Customs Act will be made out or in other words, the allegations made by the prosecution do not make of t the offence of `smuggling' as defined in section 2 (s) of the Customs Act.
3. Learned State counsel has raised a preliminary question and contends that the present petition is not maintainable, inasmuch as, powers under section 561-A, Cr. P. C. Are not available to this Court under the Customs Act as a Special Appellate Court constituted under section 46 of the Prevention of Smuggling Act, 1977. It is further contended that sec--tion 265-K, Cr. P. C. Provides a special remedy for the nature of relief sought in this petition which should first have been invoked and a revision filed before this Court under section 439, Cr. P. C. Against any order passed on such application by the trial Court.
4. Now section 561-A of the Code of Criminal Procedure has preserved the inherent powers of the High Court and reads as follows:-th "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
5. It is well settled that this provision of law does not confer any new power on the High Court, but merely .Recognises and preserves the inherent powers previously possessed by it. It, therefore, follows that since the Special Appellate Court is not an established Court as the High Court was at the time of enactment of the Code of Criminal Procedure, it cannot be deemed to possess inherent power which could be preserved by a declaratory provision like section 561-A. This Court is the creature of the statute and has been constituted simultaneously with the conferment of powers under the -amended provisions of the Customs Act. It, there--fore, seems to me that there can be no question of the inherent power of this Court to be invoked to prevent abuse of the process of a subordinate Court or otherwise to secure the ends of justice except the powers expressly conferred by the Customs Act.
6. Now subsection (2) of section 1 of the Cr. P. C. Provides that nothing contained in the said Code shall affect any special or local law in force or any special jurisdiction conferred or special form of procedure provided therein, in the absence of any specific provision to the contrary. Under subsection (2) of section 5 Cr. P. C. All offences under laws other the Pakistan Penal Code are triable and otherwise to be dealt according to the provisions of the Cr. P. C., but subject to any enactment for the time being in force regulating the manner of trying or otherwise dealing with such offences. It is, therefore, apparent that the procedure prescribed in the Cr. P. C. Would govern the trial of or otherwise dealing with, the offences under a special law as the Customs Act, in absence of a specific provision prescribing a different procedure or manner of dealing with such a case. Section 185-C of the Customs Act provides as under:- "(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 provisions of Chapter XXII-A of the Code, so far as applicable and with necessary modifications, shall apply to the trial of cases by the Special Judge under this Act.
(2) For the purposes of subsection (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 offences referred to in sub-- section (1) of section 337 of the Code."
7. It will, therefore, appear that the provisions of Cr. P. C. Have been made expressly applicable to the proceedings before the Court of Special Judge and the only contrary provision is that the provisions of the Code 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 Cr. P. C., the provisions of the former will prevail. For the present purposes it is material to refer to section 185-B, Customs Act which reads as under: "185 B. Special Judge, etc., to have exclusive jurisdiction.--Notwith--standing 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 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 Chapter XXXVII, XXXIX, XLIV or XLV of the said Code."
8. The effect of this section 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 before me is that the power under section 561- A, Cr. P. C. Is not available to this 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.
9. 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 state that the existing powers of the High Court are not in any way circumscribed by anything in the Code of Criminal Procedure except to so far as the sections expressly dealing with them do so. See Vishnu Ghanshyam v. Emperor (AIR 1941 Nag. 97) The question of creat--ing inherent power in this Court by incorporating section 561-A in the e Customs Act does not, therefore, arise. The conclusion, therefore, is that powers exercise-able by the High Court by virtue of section 561-A are not available to this Court.
10. As to the submission that the applicant may be first required to move the trial Court under section 265-K Cr. P. C. It was urged by Mr. Azizullah Shaikh that the scope of sections 561-A and 265-K, Cr. P.
11. C. Is entirely different, inasmuch as, questions of jurisdiction are not within the ambit of section 265-K which only embraces cases of want of evidence. In the view that I have taken to the effect that section 561-A is not avail able to this Court, it is not necessary to go into this question.
12. The final conclusion, therefore, is that an application under sec--tion 561-A will not be competent before this Court under the Customs Act. The preliminary objection is disposed of accordingly. The case will now come up for final order in Curt.