This petition is directed against the order of conviction passed by the Special Judge, Customs at Mastung on 26th November, 1980 whereby, he convicted both the petitioners to one year's R. I. Each and appellate order, dated 9th May, 1981 made by the Special Appellate Court (Customs), Baluchistan upholding the original Court's judgment.
2. Briefly the facts are that the petitioners herein were driver and conductor respectively of bus CAA-1333 and while coming to Quetta from Turbat on the night between 7th and 8th February, 1979 they were intercepted the baggage, of the passengers were checked; and the bus searched. As a result of this some contraband goods were recovered and a case under section 156 (89) of the Customs Act, 1969 was registered. After investigation the petitioners were challaned to the Special Judge Customs at Mastung who convicted both of these petitioners to a term of one year's R. I.
Each vide order referred to above. The appeal also failed.
3. This petition was admitted only to examine the effect of non. Service of notice under section 171 of the Customs Act, 1969 upon the trial. Of the case. At the very outset 1 inquired from the learned Deputy Att0r--ney-General appearing for the respondents as to whether notice under the said provision of law had been served upon the petitioners or not ; but he was not in a position to make any definite statement. The record of the case is also silent about the service of notice. As such, the only conclusion that I can draw is that no such notice was served upon the petitioners. Section 171 of the Customs Act, 1969 is mandatory in nature and its non-compliance is not condonable on the plea that this point has been raised for the first time in this petition or that it had a nexus only with the investigation of the case and that stage having passed, it should be regarded a mere irregularity curable by section 537 of the Code of Criminal Procedure. The legal position is that under the Custom Act the onus to prove that the goods in question were not smuggled goods shifts upon the accused only if he has been served with a notice. The position in the normal law governed by the Code of Criminal Procedure is not so, therefore, this lacuna cannot be considered an irregularity which can be covered by section 537, Cr. P. C. It is rather an illegality vitiating the trial itself. Then as argued by Mr. Iqbal Ahmed Advocate omission to serve the notice tells upon the guarantee available to a person under Article 4 of the Constitution of Pakistan that every person shall be tried in accordance with law. Such guarantee to a citizen cannot be lightly ignored and Mr. Muftakhair has nothing to say on this aspect of the case.
4. Learned counsel for the petitioners also placed before me the case of Azizullah v. The State (1) wherein this question was detailfully examin--ed and the learned Special Judge Customs was of the view that non-compliance of this provision of law vitiated the entire trial. However, those were the proceedings in Appeal, therefore, the same resulted in the acquittal of the accused. The legal position is different in writ jurisdiction which is discretionary remedy, principally available to see that justice is done in accordance with law, equity and good conscious; therefore, while allowing this petition, setting aside both the impugned orders and setting g the petitioners at liberty, I would leave it to the discretion of the Customs authorities to reinitiate the proceedings against the petitioners after due compliance of the provision of section 171 of the Customs Act, 1969, iii so like. In the circumstances of the case there shall be no order as to they costs.