On 27-10-1976 at 11-30 a. m. Motor Wagon of the Ford make bearing Registration No. KCE-927 coming from Jacobabad side was stopped and intercepted for checking at the Check Post on Jacobabad-Jhatpat 'Road. This vehicle was being driven by applicant Sardar Muhammad and applicant Saleh Muhammad was the other occupant who was found holding a bundle tied in a dark brown blanket. The S. I. P. Muhammad Sadiq incharge Check Post, Jhatpat Road, alongwith his staff examined the bundle which was found to contain bullets of 7 m.m. Bore, watches and watch traps. Saleh Muhammad was unable to produce receipts or permits for the bullets and the other goods. He was, therefore, arrested alongwith the driver Sardar Muhammad and the vehicle was also seized. The applicants were charged with being in possession of smuggled goods under section 156(1), clause (89), Customs Act and a case was registered accordingly. The challan was submitted in the Court of Special Judge, Customs on 6-11-1976 and the Court took cognizance of the case thereon.
2. This revision application was then filed before this Court challenging the cognizance taken by the Court mainly on the ground that the cognizance was taken on a police report filed by an unauthorised person and the entire proceedings were, therefore, vitiated and were without jurisdiction. The law as it stood on the relevant date when the cognizance was purported to be taken by the trial Court was as provided by section 185-A, subsection (6) which is in the following terms:-- "A Special Judge shall take cognizance of, and have jurisdiction to try, an offence triable under subsection (3) only upon a complaint in writing made by such Officer of Customs, or such other person invested with the power of sin Officer of Customs, as maybe authorised by the Central Board of Revenue in this behalf, by a general or special order in writing."
Subsequently by virtue of amendment under Ordinance No. IV of 1977 cognizance can be taken by the Special Judge upon a report in writing made inter alia by an Officer Incharge of a Police Station.
Since, however, this case will be governed by the law prevailing at the date of the challan, this revision was mainly admitted on the aforesaid point that the S. H. O. Of the concerned police station was not a competent person to file a complaint before the Special Judge.
3. When the case was taken up on 25-11-1979 for bearing the learned counsel for the applicants invited my attention to the case of Khan Wazir v. State (1977 P Cr. L J 93) in which reference was made to the Customs General Order No. 26 of 1975, dated 26-7-1975 whereby the Central Board of Revenue in exercise of powers conferred upon it in subsection (6) of section 185-A, authorised a number of Officers to make complaint in the Court of Special Judge including in the Province of Sind the Superintendent of Police. It was contended that the S. H. O. Of a Police Station was not competent to file the complaint in this case. Since the learned counsel appearing for the State was unable to throw light on the question whether the S. H. O. Was authorised by the Board of Revenue by any subsequent order, and it was brought to my notice that an application was pending before the trial Court on the same question, by order dated 25-11-1979 I directed the trial Court to take up the question and dispose of the same. In the meantime, this revision was kept pending.
4. The learned trial Court then took up the applications of the appli--cants and has disposed of the objections raised assailing the cognizance and jurisdiction of the Court by its order dated 21-5- 1980. It has been found by the learned trial Court that the challan in this case was signed by S. P.
Which was affirmed by the Prosecuting Inspector appearing on behalf of the State. In view of this the learned trial Court has reached the conclusion that there is no legal infirmity in taking cognizance of the case as the S. P. Was an authorised person to file complaint at the relevant time.
5. Today when the case was taken up no one has appeared for the State. I have, therefore, heard the learned counsel for the applicants.
6. It is not disputed by the learned counsel that the challan has been signed by the S. P. But placing reliance on Musharraf Khan v. State (PLD 1978 Pesh. 113), he contends that the mere signature of the Superintendent of Police on the challan is not sufficient in law to give jurisdiction to the Special Judge unless it is shown that he had applied his mind to the facts of the case. The pro--position of law is no doubt supported by the decision cited at the bar but there is nothing on the record to indicate that in the present case the S. P. Had not applied his mind to the facts of the case. The decision in the reported case proceeded on the peculiar facts of that case which were that the S. H.
O. Of the Police Station had prepared the challan which bore an endorsement of the Superintendent of Police to the effect "forwarded to the Special Judge, Customs for trial please". It was on these facts that the following observa--tion was made:- "A proper complaint was a sine qua non for the Special Judge to take cognizance of the offence and have the jurisdiction to try the accused. 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 which is evidently lacking in this case. It cannot be held that the endorsement reproduced above by which the Superintendent of Police has forwarded the challan prepared by the S. H. O. For trial to the Special Judge can at all be called a complaint, by the Superintendent of Police."
7. It was next contended on behalf of the applicants that the law as then prevailing did not contemplate the taking of cognizance on a police report and the Special Judge had jurisdiction only to take cognizance of an offence under the Customs Act upon a "complaint" in writing.
Reference was made in this behalf to section 4(h) of the Code of Criminal Procedure which defines "complaint" to mean the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unkown, has committed an offence, but it does not include the report of a Police Officer. Learned counsel emphasized the words underlined" by me and contended that the report of a Police Officer would neces--sarily be outside the definition of a "complaint" and, therefore, the learned Special Judge could not take cognizance of the case on the report of the Police Officer. At the outset it may be pointed out that the report submitted by the S. P. Before the learned Special Judge was not a report of a Police Officer as contemplated in the Code of Criminal Procedure but the S. P. Signed the report in his capacity as an authorised person under the Customs General Order No. 26 of 1975 already referred to. For all intents and purposes, therefore, what purported to be a police report was a complaint as required by Section 185-A, subsection (6) of the Customs Act. In my opinion, therefore, the police report submitted by the authorised Police Officer would sufficiently satisfy the requirements of law for the purpose of taking cognizance under section 185-A. However, the 'report of a Police Officer' as men--tioned in section 4(h) of the Code of Criminal Procedure means a report which a Police Officer is authorised to make under section 173. It has been held in Barkat v. Emperor (AIR 1943 All.
6) that the term 'complaint' as defined in section 4(1)(h), Cr. P. C. Has the meaning therein given, unless a different intention appears from the subject or context and that obviously the term 'complaint' in section 195 (1) (a) is not used in the technical sense in which it is defined in section 4.
There is, therefore, no force in this contention.
8. In the result, this revision application is dismissed with the observa--tions made herein above.
The stay order shall stand vacated forthwith.