' These two appeals are directed against the impugned judgment dated 19-10-77 of learned Special Judge (Customs & Taxation), Karachi, whereby the present two appellants, namely, Piru s/o Haji Ladhe and Faqir Mohammad s/o Abdul Hameed have been convicted for offence under section 156(1)(89) of Customs Act, 1969 and sentenced each to R.I. For 11/2 years and a fine of Rs,10,000 in default thereof further R.I. For six months.
By the same impugned judgment four other coaccused,namely, Wahid Bux s/o Mohammad Yousuf, Allandad s/o Jan Mohammad, Mian Wasayo s/o Jan Mohammad, Haji Ahmed s/o Ayub were acquitted.
2. Briefly stated the relevant facts are that on 12-1-75 at about 8-40 a.m. Irshad Ali S.H.O. Police Station Mirpur Sakro in District Thatta along with other officials in the party, acting on spy information, lay in wait near Bohara village bus-stand and spotted one car which was being driven by acquitted co-accused with whom other acquitted co-accused Haji Ahmed was sitting. This car was being followed by two wagons. The car and these two wagons were being driven at a high speed and were followed by the S.H.O. At Sakro bus-stand police party shouted and there were many people present there, who also assisted and in the result both the wagons stopped but the car managed to escape. Both these wagons were being driven by appellants Faqir Mohammad and Piru. From the wagons a large quantity of foreign cloth, which was smuggled, was recovered and such Mashirnama was prepared. Both the appellants were also arrested. F.I.R. Was registered at police station Mirpur Sakro on the same day. Appellants during the investigation led the police party to the house of Mian Wasayo and Allandad from where wrappers of cloth were recovered. There were also wheel marks at the spot.
Such Mashirnama was prepared.After completion of other steps of investigation challan was submitted in the court on 27-1-75.
3. Before the trial court prosecution examined P.W.1 Irshad Ali, S.H.O. And P.W .2 Shafi Mohammad Mashir, P.W. 3 Ali Mohammad, driver of Suzuki van in which the police party chased the alleged offenders and P.W.4 Mohammad Aslam, A.S.I., who was a member of the raiding party appellants, and acquitted co-accused denied prosecution allegations in their statements recorded under section 342, Cr.P.C. And examined no witness in defence.
4. Before Ime Mr. S. Sami Ahmed, Advocate, appeared for appellant Faqir Mohammed and Mr. Sohail Muzaffar, Advocate, for appellant Piru.
' Mr. Sami Ahmed argued and Mr. Suhail Ahmed adopted the arguments of Mr. Sami Ahmed. At the very outset Mr.Sami Ahmed stated that he would not go into the merits of the case and would not discuss the evidence but would only press this appeal on strictly legal points. According to the learned counsel in this case interim challan was submitted on 27-1-7.5 and final challan on 25-2-75 and further there is no dispute about the fact that these challans were submitted by S.H.O. Of the police station. It was further submitted that on the dates when challans were submitted S.H.O. Was not competent as authorised person to file the complaint as contemplated under section 185-A of the Customs Act, 1969. The requirement of the section mentioned above at that relevant time as, it stood, briefly stated, is that the Special Judge could take cognizance of any offence punishable under the provisions of the said act, inter alia, upon a report in writing made by an officer of Customs or such other person invested with powers of an officer of Customs, as may be authorised by the Central Board of Revenue in this behalf by a general or special Order in writing. The Central Board of Revenue issued General Order No,19/74 on 25-10-74 by which only the Inspector-General of Police of the Province, in the police organization, was authorised to file complaint. This date 25-10-75 is important because in the instant case interim challan was submitted on 27-1-75 and final challan was submitted on 25-2-75, hence on the relevant dates I.G Police was competent to file complaint but subsequently vide Customs General Order No,26/75, which was issued on 26-7- 75 I.-G. Police was replaced by Superintendent of Police. This fact was brought to the notice of the learned Special Judge that in the instant case complaint was filed by S.H.O. Police, who is not authorised officer and on the relevant dates only I.-G. Was competent but this argument did not find favour with the trial Court and it was held in this context that after Customs General Order No,26/75 there was further development and section 185 of the said act was substituted by the Prevention of Smuggling Act of 1977 and the law in the present form allow officer in charge of police station to be the competent person to file the complaint as is now contemplated in section 185-A of the Customs Act, 1969. The learned trial Judge' has further held that in such circumstances it could not be held that cognizance taken by the court was without jurisdiction as after that the relevant provision of the law has been amended and the S.H.O. Is now competent to file the complaint. It was further held that in any case this was a procedural defect which has been rectified by the law as such no prejudice was caused in the trial which commenced with the filing of the complaint by the S.H.O. And allowed to continue and brought to finale. The thrust of the reasoning in the impugned judgment is that because during the pendency of the trial law has been amended to include S.H.O. As competent person duly authorised to file the complaint hence defect which is procedural in nature has been removed.
5. Mr. Sami Ahmed, counsel for the appellant, has contended before me that the defect is not procedural but it is a jurisdictional defect and subsequent amendment in law is prospective in nature and not retrospective and in the instant case amendment authorising S.H.O. To file complaint will not erase jurisdictional defect which male into existence because complaint was filed by S.H.O., who was not authorised person on the relevant dates mentioned above when the proceedings were indicated.
6. In this context it would be'pertinent to point out that Crawford in his renowned book "Statutory Construction" at page 572 has stated that a penal or criminal statute should not be given retroactive effect, if avoidable. If such effect is given, the statute would fall within the prohibition against ex post facto Lagislature. Statute should not be given retroactive operation unless its language clearly makes such a construe tion necessary, even though it favours the defendant either by relieving him wholly or partially from punishment previously provided for, or any condoning the offence created by the former law. But if the criminal statute is subject to a strict construction, as it generally is it would seem that where retroactive effect favours the defendant, the statute should be liberally construed in favour of retroactivity.
7. In the instant case there is no dispute about the fact that the last amendment brought in the law permitting S.H.O. To file the complaint does not say expressly that this amendment is to apply with retrospective effect, nor such intention can be gathered by way of implication. It is held in the case of Tafazzul Hussain and others v. The Province of East Pakistan and others PLD 1961 Dacca 389 that an enactment is presumed to be prospective unless there are express provisions in the enactment, or the necessary implication of such provisions clearly indicates that it should have a retrospective effect. In the appeals of Income-tax Officer, Dacca v. Suleman Bai Jeewa and others similar appeals PLD 1970 SC 80 it is held that the use by the legislature of words such as "shall" or "hereafter" is taken to indicate an intent that the statute is to be construed as prospective only and on the other hand the use of words denoting past time, such as "has been" or "hereto before" constitute an explicit declaration that the act is to be construed retrospectively. The point for consideration was interpretation of section 34 (2D) of Income-Tax Act of 1922 read with Finance Act, 1964. It was held that the words "has been" used in subsection (2D) clearly denote past time. On the date of commencement of the Finance Act, 1964 the words "has been" occurring in subsection (2D) could not be construed except retrospectively and these words on the said date must be construed as referring to assessment or reassessment annulled prior to the coming into force of the Finance Act of 1964 on the 1st July, 1964.
8. Our Supreme Court in the case of Adnan Afzal v. Captain Sher Afzal PLD 1969 SC 187 has held that lagislation would be considered to be retrospective if it relates to a matter which is merely procedural in nature, however such matter would not operate retrospectively if it touches a right in existence at time of passing of legislation. Further a relevant paragraph from the same reported case, which is pertinent, is reproduced hereunder:- ' To the same effect are the observations of Jassel, Master of the Rolls,' in the case of In re : Joseph Suche & Co. Limited (1875) I Ch.D.48 where it was observed that as "a general rule when the Lagislature alter the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retropective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injuries, then the courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourable incline towards giving effect to such procedural statutes retroactively."
9. In view of the legal position stated above it was argued by Mr. Sami Ahmed that in the instant case amendment in the law mentioned above did not relate to any procedural matter but it concerned substantive right of the accused party and also it affected the very jurisdiction of the court as such it was a jurisdictional defect and if the complaint was filed by a person, who was not authorised under the law at the relevant time, then the court has no jurisdiction to deal with the case and the proceedings in such circumstances suffer from very serious illegality rendering the same to be coram non judice. The learned counsel further argued that filing of complaint by unauthorised person is analogous to obtaining of sanction for prosecution from appropriate authority which is mandatory in corruption cases triable under the provisions of Pakistan Criminal Law Amendment Act (XL of 1958) and cited the case of Rasheed Ahmed v. State PLD 1972 SC 271 in which it is held that if mandatory condition for the exercise of jurisdiction before a court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction.
10. Mr. Sami Ahmed has further cited three cases which are directly on the point. The first case is that of Musharraf Khan v. State PLD 1978 Pesh.113. In that case at the relevant time S.P. Was competent to file the complaint but the complaint was prepared by S.H.O. And was forwarded by Superintendent of Police without applying his mind. It was held by the High Court that complaint to be filed by a person invested with powers of a Custom Officer is also since quanon for Special Judge to take cognizance of offence and have jurisdiction to try accused and since it was not done, the lapse was treated as an illegality going to the root of the case vitiating trial, which was declared not curable by subsequent amendment in law or under section 537 of Criminal Procedure Code. The second case is of Khan Wazir and others v. State 1977 P Cr. L J 93. In this case complaint was filed by Sub-Inspector of Police and cognizance was taken by a Special Judge. The High Court quashed proceedngs holding that only Superintendent of Police was authorised to lodge complaint. The third case is of Saleh Mahmood v. State 1981 P Cr. L J 179. In this case at the relevant time the complaint was filed by the Superintendent of Police, who was authorised person under the law and this fact was confirmed by the trial court in the report sent for hence the Special Appellate Court declined to interfere maintaining that complaint is filed by the person as was contemplated under the law at the relevant time and in the result revision application was dismissed.
11. For the facts and reasons aforementioned and in accordance with the guidance laid down in the judicial decisions cited above I hold that in the instant case the complaint at the relevant time was filed by person who was not authorised under the law, hence the jurisdiction of the Special Judge was affected and since he took the cognizance on the basis of complaint which was filed by a person not authorised by the law hence the proceedings were coram non judice and illegal.
12 In the result I set aside the conviction and sentence and allow this appeal.