This Special Criminal Revision has been filed against the impugned order, dated 27th March, 1983 passed by the learned Special Judge (Customs and Taxation), Karachi dismissing application filed under section 265-K, Cr. P. C.
Shortly stated the relevant facts are that applicant is a dealer of arms and ammunition and he had purchased 20 guns and cartridges from an authorised dealer in Swat and subsequently this fact came to the knowledge of Federal Investigating Agency while they were investigating some other case. F. I. R. Was filed on 1st October, 1973 and it is alleged therein that the applicant acquired possession of illegal guns and cartridges which were made in Russia. The period for acquisition is stated to be between 2nd June, 1971 and 16th August, 1971. After filing of F. I. R. In the year 1973 as stated above challan was finally presented in the Court in the year 1976 for offence under section 156 (89) of the Customs Act.
2. Mr. Suleman Kassam, Advocate for the applicant has submitted that even after the grossly belated challan which was presented in the year 1976 on the basis of F. I. R. Filed on 1st October, 1973 relating to offence which is alleged to have taken place between 2nd June, 1971 and 16th August, 1971 the progress made so far in the Trial Court is that upto now i,e, 1984 only two witnesses have been examined. No doubt some concession is to be made to the prosecution for pendency of revision application with stay granted by this Court but then record shows that this revision application was filed on 24th April, 1983 when order was passed admitting the same and also granting stay.
3. In any case legal point urged is that at the relevant time i,e, 2nd June, 1971 and 16th August, 1971 arms and ammunition were not a notified item hence such could not be filed in the Court of learned Special Judge Customs because he had no jurisdiction in the matter as such proceedings arising from alleged incident are coram non judice and suffer from serious illegality, which is a jurisdictional defect which is not curable in any provision of law including section 537, Cr. P. C.
Learned counsel for the applicant has cited case law in support of proposition advanced by him and quoted the case of Niaz Ahmad and others v. State in which Division Bench of this Court has held that mere fact of importation of exportation of certain goods being prohibited by law does not amount to smuggling for which such item must be specified in clause (9) of section 156(1) of the Customs Act, 1969 or it should be notified by the Federal Government under section 2(s) and (a) of the said Act. In the reported case Charas at the relevant time was not notified. This point was raised in the High Court and in consequence proceedings before the trial Court were quashed on the ground that there was illegality. Second case is of Syed Shabbir Ahmed Shah v. Pakistan . In this case car was not notified item and it was held that the same cannot be made subject of smuggling notwithstanding the fact that import thereof was prohibited under notification issued in exercise of powers conferred by section 3(1) of Import and Export (Control) Act. Third case is of Mrs. Hiam Tabbara v. Director-General, Pakistan Coast Guards . In this case motorcar was not a notified item at the relevant time under section 2 (a) (s) of the Customs Act, 1969 although the same were prohibited under a notification issued in exercise of powers conferred by subsection (1) of section 3 of Imports and Exports (Control) Act. It was held that the same still not attracted within the mischief of smuggling. Another case cited on the same point is that of Zafar Mahmood Paul v.
State . In view of case law cited above it has become crystal clear that when at the relevant time item was not notified as contemplated under the provision of Customs Act, the same cannot be said to have been attracted by the mischief of smuggling.
4. There is still another aspect of this case which is to the effect that the case property in this case i,e, 20 guns and cartridges were never recovered by the Investigating Agency and never made case property. In these circumstances these guns and cartridges were not produced in the Court.
Mr. Suleman Kassam has stated that adjudication proceedings were filed in respect of the same allegations but they were dropped for the reason that the said guns and cartridges could not be seized by the Investigating Agency hence the question of confiscation does not arise.
For the facts and reasons stated above, the revision application is allowed and in consequence thereof appellant stand acquitted under section 265-K, Cr. P. C. PLD 1978 Kar. 774 PLD 1979 Kar. 86 PLD 1980 Kar. 44 1981 P Cr. L J 66