Appellants above-named, being aggrieved by the judgment dated 16 August, 1976 of the learned Special Judge (Customs and Taxation), Karachi, by which appellants have been convicted under section 156 (1), clause 89 of Customs Act, 1969, and sentenced to suffer R. I. For 2 years and fine of Rs. 2,000 each, while co-accused Haji Iftikhar and Muhammad Siddiq were acquitted, have preferred the above appeal, on the following facts and grounds.
2. According to prosecution, on 9th June, 1972 P. W. Muhammad Sharif, Senior Preventive Officer, Customs, was directed to proceed on patrol duty towards coast near. Ormara. He alongwith his party proceeded in a launch towards Ormara. They continued their journey till 14th June, 1972, when on said date at 7 a.m. They found a Launch namely AI--Tirmez' coming from Ormara side towards Karachi. The Customs party intercepted the launch and then secured foreign smuggled goods. The Customs party headed by Muhammad Sharif arrested 12 crew members and seized the goods and secured a fake manifesto of the cargo and a Registered Certificate issued by Dubai and Ajman Governments respec--tively. Customs party was informed by appellant Noor Dad, who was Captain of the seized launch, that the goods were to be delivered to co--accused Haji Iftikharuddin and absconder Haji Noor Muhammad, through one Alan of Bundiwali. The customs party took the seized launch under escort towards Karachi. On the way, the Customs party was joined by another Customs party headed by Syed Asghar Abbas S. P. O. In this way, the seized launch was brought to N. M. B. Wharf, Karachi, where it reached at 2-00 a.m. On 15th June, 1972. In presence of Mashirs, the goods on board the seized launch were brought to Port and then to the Customs House. In the Customs House, an inventory of the goods secured from the seized launch was prepared in presence of Mashirs. Goods secured from the seized launch included 76,452 yards of foreign clothth of Rs. 50,645, wrist-watches of the value of Rs. 1,49,900, cosmetics of the value of Rs. 44,000 and electrical goods of the value of Rs. 800. All details of the incident were given by Muhammad Sharif to S. M. Sibtain, S. P. O., who lodged such F. I. R. The F. I. R. Was handed over to the Investigation Officer Syed Aziz Ahmed, S. P. O. Customs. Syed Aziz Ahmed investigated the case and got arrested appellant/co-accused Muhammad Siddiq, who was not in the launch "Al Tirmez" at the time of its seizure. On com--pletion of investigation, he submitted interim challan against the appel--lants, except Iftikharuddin. Subsequently, final challan was submitted, wherein Iftikharuddin and others, who were absconding, were shown as accused.
3. Charge Exh. 1 containing prosecution allegations was read over and explained to all the appellants who pleaded not guilty to the charge.
4. Prosecution examined P. Ws. Muhammad Sharif, Exh. 2, Kazi Mussarrat Hussain Exh. 3, S. M. Sibtain Exh. 4, Syed Asghar Abbas Exh. 5, Liaquatullah Jan Exh. 6, Muhammad Riasat Exh. 7, Mir Muhammad Qureshi Exh. 9, Salim Akhtar Exh. 10, Mahboob Alam Exh. 11, Muhammad Ilyas Exh. 12, Muhammad Bilal Exh. 13, Haji Yaqoob Exh. 14, Muhammad Siddiq Exh. 15, Muhammad Firdous Exh. 16, Salik Hussain Exh.
17, Noor Ali Qasim Exh. 18, and Aziz Ahmad Naqvi Exh.
20. Prosecution was closed under statement Exh. 21.
5. In their statements Exhs. 22 to 34, the appellants denied the pro--secution allegations. In his statement Exh. 22, accused Iftikharuddin admitted, that he was owner of Mahboob Chambers and denied that he had any departmental store in those chambers: Appellant Noor Dad Exh. 23 denied that he was Tindal of Launch AI-Tirmez on. 1st April, 1972. He denied that he made an application on said date to the competent authorities for permission to the launch Ali Tirmez to Gwadar, for fishing in-between Gwadar and Karachi. He denied that he had obtained fake Manifests Exh. 1/1 and Registration Certificate Exh. 1/2 from Dubai Government. He denied that Launch Al-Tirmez was intercepted by the Customs party, but contended that the same was intercepted by a ship of Pakistan 71avy namely Babar. Appellant Noor Dad took plea, that his Launch was not intercepted by Customs party, but the same was intercepted by Babar ship and that the said ship lifted the articles alleged to be smuggled by means of crane from his launch. He stated, that he and other crew members were taken into custody in said ship. Noor Dad further stated, that he and other crew members and the goods were taken in Babar ship to Ghurno, where he, his other members of the party and the goods were put in Launch Al-Tirmez, which took them to Ghuc Bunder, where they alongwith the goods were handed over to the Customs authorities. Appellant Noor Dad admitted, that the articles in question, called smuggled goods, were secured from his launch Al- Tirmez, but added that the same were loaded from Babar ship. He showed ignorance about the fact, that one of the seized suit cases contained one pistol, photo--graphs identity cards and other documents of accused Muhammad Siddiq. Appellant Noor Dad denied that the goods alleged to be smuggled were to be delivered by him and his party to accused Iftikharuddin, through one Allan. Appellant Noor Dad took plea, that the goods in question were being carried from Dubai to Bombay where the same were to be delivered to one Wassomal. He added that all the witnesses belonged to Karachi city and none from Babar ship was exramined. Accused/appellant Jolai said in his statement Exh. 14, that be was caught alongwith the smuggled goods by Babar ship near Iran territory. Appellant Joolai admitted, that he and other crew members and Tindal Noor Dad along-- with seized goods and launch AI-Tirmez were brought by the Customs Officer to N. M. B. Wharf at 2- 00 a.m. On 15th June, 1972. He stated, that the bundles secured from his launch were not opened in his presence. He denied if the pistol, photographs, identity cards and other documents Exhs. 6-C to 6-X recovered from one of the seized suit-cases were given to him at Dubai by accused Muhammad Siddiq to be delivered to Siddiq at Karachi. Appellant Joolai denied that the goods were to be delivered to accused Iftikharuddin and contended that the goods were meant to be carried to Bombay. In his statement Exh. 25 appellant Nasir added, that launch Al-Tirmez met him in Dubai and that he alongwith others was proceeding in said launch to Bombay, when on the way near Iran Coast they were caught by a ship "Babar" of Pakistan Navy. He denied that his party was caught by any Customs Officer. Appellant Nasir admit--ted, that there were bales in his launch, which were seized. He showed igno--rance about contents of those bales. Appellant Nasir added, that he and other crew members of said launch were brought to Ghas Bunder by Naval People in Babar ship alongwith bales. In respect of prosecution witnesses, appellant Nasir stated, that they were deposing at the instance of Customs authorities: In his statement Exh. 26, appellant Hassan added, that he was working in launch Al-Tirmez at Dubai and that accused Noor Dad was Tindal (Captain) of said launch. Appellant Hassan also stated, that he and his party had some goods in the launch, but the same were secured from them by Naval Officers of Babar ship and not by the customs officers, and that he and other members of the crew, alongwith the goods in the launch were caught near Iran Coast. He added that he and his party were arrested by Naval Officers at a place, where they were caught along--with the goods in the launch and that subsequently they were taken to Ghas Bunder. Appellant Hassan showed ignorance about contents of the packages secured from the launch. He added, that the witnesses were deposing against him at the instance of the Customs Officers. Appellant Abbas in his statement Exh. 27 admitted, that he was working in the launch Al-Tirmez at Dubai and that appellant Noor Dad was Tindal of that Launch. Appellant Abbas added, that he and his party were taking goods in question in the launch from Dubai to Bombay and that they were caught with the goods ~ by Naval Officers of Babar ship and were brought to Ghas Bunder. He showed ignorance about contents of packages lying in the launch. He showed ignorance about recovery of pistol, photographs etc. Belonging to accused Siddiq, from one of the suit-cases seized. He denied that the goods in question were to be delivered to Iftikharuddin. Appellant Abbas admitted, that he and his party indulged in smuggling from Dubai to other countries and not to Pakistan and that the prosecution witnesses had deposed against him, at the instance of customs. In his statement Exh. 28, appellant Murad Bux stated, that he and his party were caught at the first occasion of taking out the goods from Dubai by Naval Officers of Babar ship near the Coast of Iran. He admitted that he and his party members were brought in the said launch to Ghas Bunder and were put in custody. In his statement Exh. 29 appellant Khuda Bux denied each of the prose--cution allegations and added that the P. Ws. Were deposing at the instance of customs. In his statement Exh. 30, appellant Taj Muhammad denied that he was working in launch Al-Tirmez. He admitted that he and his partymen were caught with the goods in their launch by Babar ship of Pakistan near coast of Iran. He showed ignorance about contents of the packages, which were secured from their launch. He added that he and his partymen were to take goods to Bombay and that P. Ws. Were deposing against him at the instance of Customs Police. In his statement Exh. 31, appellant Ali admitted, that Noor Dad accused was Tindal of launch Al Tirmez at Dubai in 1972. He added that he and his party were caught alongwith the packages in the launch, near coast of Iran by the personnel of Babar ship. He added that the packages were being taken to Bombay and that he did not know contents of the same. Appellant Ali and his partymen were taken to Ghas Bunder and were confined in jail. In respect of P. Ws. He said that they were deposing at the instance of Customs. In his statement Exh. 32, appellant Nabi Dad admitted that he and his partymen were caught by Babar ship near Coast of Iran in launch .Al-Tirmez. He added that prosecution witnesses were deposing against him at the instance of Customs. In his statement Exh. 33, appellant Dad Muhammad added, that he and his partymen were caught by Babar ship in the launch with the packages containing goods, which he did not know and that they were caught near coast of Iran. He added that the P. Ws. Were deposing against him at the instance of Customs. In his state--ment Exh. 34, appellant Haji Siddiq added that he had gone to Dubai in May, 1972 and that he had returned from Dubai to Karachi under entries made by Immigration Department copies Exh. 9-A. He denied seizure of goods alongwith the launch Al- Tirmez. He showed his ignorance about bringing of the goods to Ghas Buiider etc. Accused Siddiq denied that the documents Exhs. 6-O to 6-X were secured from one of the suit cases lying in the seized launch. He added, that said documents were seized by the Customs Officers from his house.
Accused Siddiq alleged enmity with Customs Officer, Mr. Baluch. He denied that he had instructed delivery of smuggled goods in question to Haji Iftikharuddin and Haji Noor. Appellant Abbas, Iftikharuddin, Murad Bux, Khuda Bux, Taj Muhammad, Ali Nabidad and Haji Siddiq did not wish to examine any evidence in defence. Remaining accused gave statement Exh. 35 to the effect, that they did not wish to lead defence and that the defence witnesses, whose names were already given were given up.
6. The learned trial Court taking into consideration the evidence adduced before it convicted the appellants above named, as hereinbefore mentioned and consequently the appellants have filed the above appeal on the grounds mentioned in the memo. Of appeal.
7. The learned Advocate for the appellants submitted, that no notice under section 171, Customs Act, 1969 was given to the appellants and as such mandatory provisions of the said Act were not complied with and on this ground alone the impugned judgment is liable to be set aside. In support of this contention, the learned Advocate for the appellants relied upon case reported in PLD 1981 Kar.. 250.
8. Mr. Agha Ghulam Ally, learned Advocate appearing for the. State conceded, that no notice under section 171, Customs Act, 1969 was served on the appellants, as there is no mention thereof in the evidence adduced before the learned trial Court. In view of this the learned Advocate for the State submitted, that he is not supporting the impugned judgment, or in view of the law laid down by the case reported in PLD 1981 Kar. 250.
9. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and the cases cited by learned Advocate for the appellants before me.
10. It is an admitted position, that the provisions of section 171, Customs Act, 1969 were not at all complied with and no notice as require by the said provisions were given to the appellants and consequently the mandatory provision of the Sea Customs Act, 1969 have been violated, and as such seizure of the goods and arrest of the appellants were illegal and without lawful authority and consequently the convictions and sentences awarded to the appellants cannot be sustained, in view of the case reported in PLD 1981 Kar. 250, with which I am in respectful agreement, for the reasons given in the said Judgment.
11. Therefore, without going into the other grounds mentioned in memo. Of appeal, I allow the above appeal on above legal ground, as the mandatory provisions of section 171 of the Customs Act, 1969 in respect of search and seizure were violated and consequently set aside the con--viction of the appellants as well as sentences awarded to them and. Acquit them and discharge the bail bonds executed by the appellants.