JUDGMENT MIR HAZAR KHAN KHOSO, J.--The Customs Appeals Nos. 9 and 10 of 1985 are directed against the same judge ment dated 4th December, 1983 of the Special Judge Customs Quetta whereby he convicted the both appellants under section 156(1)89 of Customs Act and sentenced each of them to suffer R.I. For 3 years and to pay fine of Rs. 1,000 and in default of payment of fine to undergo R. I. For 6 months more.
2. It is the case of the prosecution that on 29th of April, 1985 on spy information Tanveer Alam Inspector of Customs Mobile Squad No. 1 Quetta intercepted the Truck No. QAC-4525 at Kolpur and found foreign made cloth concealed in a false cavity made therein.
The truck was being driven by the appellant Ghulam Dastgir whereas Muhammad Qasim who is alleged to be its owner was sitting by his side. The truck was taken to the Headquarter Office at Quetta and was searched in presence of Muhammad Saleem and Sarfraz Ahmad customs personnels. After recording of the FIR the both appellants were challaned for offence under section 156(1) 89 of the Customs Act before the learned Special Judge Customs Quetta who convicted and sentenced them as shown hereinabove in the introductory paragraph of this judgment.
3. Being aggrieved and dis-satisfied with their conviction and sentence the both appellants have challenged the same by two separate appeals before this court.
4. M/s. Iftikhar Muhammad and Khalid Malik, Advocates appeared for the appellants whereas Mr. Yakub K. Eusufzai, the learned Advocate General represented the State.
5. The learned counsel for the appellants impugned the judgment on the grounds:-- (i) That the truck was intercepted at Kolpur which fells within the jurisdiction of Special Judge Customs Sibi; hence the Special Judge Customs Quetta had no jurisdiction to try the case. (ii) That the 'Truck falling within the definition of 'Place' the search should have been made in presence of two respectable persons of the locality, hence search made in presence of customs officials was illegal. (iii) That the cloth was not examined by an expert so as to prove that it was a contraband article; in absence of expert's evidence conviction under section 156(1)89 of the Customs Act was illegal. (iv) That the material on the record was not sufficient to warrant conviction That the appellants were not examined on oath under section 340 (ii) of the Criminal Procedure Code; the conviction as such was illegal.
6. In rebuttal the learned Advocate General emphasized that the above said objections were never taken before the trial court hence the same could not be raised for the first time in appeal before this Court.
7. The first moot point involved in both the appeals is that the appellants were not examined on oath in dis-prove of the charges levelled against them as provided under sub-section (2) of section 340 of the Criminal Procedure Code. To appreciate this provision of law it would be beneficial to reproduce the same which reads as under:-- "340(2) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall if he does not plead guilty give evidence on oath in disproof of the charge or allegations made against him or any person charged or tried together with him at the same trial: Provided that he shall not be asked and, if asked shall not be required answer any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged for which he is being tried or is of bad character, unless-- (i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or (ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given good character; or (iii) he has given evidence against any other person charged with or tried for the same offence." Using the word 'shall' it has been made obligatory upon the court to examine the accused on oath to give evidence in disproof of the charges of allegations made against him.
Lt may be pointed out that the non-examining of the accused on oath under section 340(iii) Cr. P.C.
Is not an irregularity which may be curable under section 537 Cr. P.C. As examining of accused on oath is a mandatory provision of law. Section 537 Cr. P.C. Reads as under;-- "537--Finding or sentence when reversible by reason of error or omission in charge or other proceedings.- Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account;-- (a) of any error, omission or irregularity in the complaint, report by police-officer under section 173 summons, warrant, charge, proclamation, order, judgement or other proceedings before ordering trial or in any inquiry or other proceedings under this Code, or (b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless such error, omission or irregularity has in fact occasioned a failure of justice." The same proposition came under discussion before the Lahore High Court in case of Rizwan vs. The State in a Criminal Revision reported in PLD 1986 Lahore 222 which reads as under:-- "340(2) as substituted by Code of Criminal Procedure (Amendment) Ordinance (XII of 1985 & S 537 Provisions of S. 340(2) Cr. P.C. Are mandatory omission to record statement of accused on oath would be an illegality and not an irregularity curable under S. 537 Cr. P.C. Accused is not bound to request Court during trial that his statement should be recorded, court itself has to record statement of accused under S. 340(2) Cr.
P.C."
8. No material has been placed before me so as to take a divergent view than that enunciated in the above said authority. While agreeing with the proposition enunciated in the said quotation. I am of the clear view that non examining of accused on oath renders the conviction and sentence illegal and it requires retrial of the case from the stage of the examining of the accused under section 342 Cr. P.C. But as it was pointed out by the learned counsel for the appellants that the incident had taken place at Kolpur which lies within the territorial jurisdiction of Special Judge Customs Sibi and as the Customs Judge Quetta had no jurisdiction to try the case. I would therefore direct trial of the case afresh by the Special Judge, Customs, Sibi.
9. On the facts and circumstances shown hereinabove I accept both the appeals and set aside the conviction and sentence of the appellants passed by the learned Special Judge Customs Quetta on 4th December, 1985 and remand the case for retrial to the Special Judge Customs Sibi who shall examine the witness again. The appellants are present on bail they are directed to appear before the Court of learned Special Judge Customs Sibi on 24th July, 1986 for the purpose.
10. As the case is being remanded for retrial on only two grounds I am not inclined to discuss the remaining three grounds which may be taken by the appellants before the trial court if they so desire or advised. 11.
This is the reasoning of my short order announced in open court on 14-6-1986.