Appellant Haji Siddique was tried alongwith Hussain, Ramzan, Umar, Haji Ghulam Hassan and Haji Ghulam Hussain for the offence under clause (89) of section 156(1) of the Customs Act, 1969, by Special Judge (Customs and Taxation), Karachi, who vide judgment, dated 15-5-1979, acquitted Hussain, Ramzan, Umar, Haji Ghulam Hassan and Haji Ghulam Hussain. Appellant Haji Siddique was, however, convicted and sentenced to suffer R.I. For 1-1/2 years and to pay a fine of Rs.50,000 or in default to suffer R.I. For one year. By this appeal the appellant seeks to challenge his conviction and sentence.
2. On night between 9-10-1974 and 10-10-1974, S.M. Sibtain, Preventive Officer, Anti-Smuggling Squad received spy information that a huge quantity of smuggled goods would be transported to Karachi via hlawksbay - Maunpur Road. Accordingly a secret watch was kept near S.I.T.E. Area. At about dawn time the Customs party proceeded towards Hawksbay side and noticed a microbus followed by a jeep approaching. The microbus was signalled to stop, but the driver accelerated the speed. The Customs party then followed the microbus which was being driven by absconding accused Muhammad. The jeep which was following the mini bus tried to stop the van of Customs party. The Customs party then fired at the wheels of micro bus which was stopped. The culprits, however, managed to escape. The jeep also slipped away. It is the case of the prosecution that the present appellant was sitting in the said jeep and was identified by members of Customs party. On checking 60 parcels were found in the said micro--bus which contained wrist watches, radios, cloth and imitation jewellery. Such inventory was prepared in presence of Mashirs Mir Muhammad and Mirah. S.M. Sibtain then went to the house of appellant situated at Paradise Point, where he arrested co-accused Hussain, Umar. Ramzan and Yaqoob. Yaqoob took the Customs party to the harbour and pointed out the launch which was berthed at Fish Harbour. Accused Yaqoob was made approver and at his pointation a small boat was seized from the fishing site of appellant Haji Siddique. Appellant Haji Siddique could not be arrested at the initial stage. On 22-4-1975 appellant Haji Siddique and others were sent up before the Special Judge (Customs and Taxation), Karachi, to stand trial for the said offence.
3. The prosecution has examined in all 10 witnesses. The appellant met the charge with a denial professing innocence. At the conclusion of the trial, the learned Special Judge (Customs and Taxation): Karachi convicted appellant Haji Siddique, while the co-accused were acquitted.
4. The learned counsel for the appellant has raised a preliminary objection about the non- compliance of section 171 of the Customs Act, 1969, thereby vitiating the whole proceedings. Section 171 provides as follows:- "When anything is seized, or any person is arrested under this Act, the Officer or other person making such seizure and arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest."
5. Admittedly no notice as required under section 171 of the Customs Act, 1969, was given to the appellantj. Mr. Abul Khair, learned counsel who represents the State has stated that service of notice upon appellant was not possible as he was absconding. The record, however, shows that the charge-sheet against the appellant was submitted on 12-4-1975, after the appellant was arrested. The arrest of an accused and the seizure of goods in disregard of this provision of law was thus illegal. Such notice could have been served upon the appellant after he was taken into custody. Section 167 of the Customs Act, 1969, further lays down that any person liable to be arrested under this Act if not arrested at the time of committing the offence for which he is liable, or after arrest makes his escape, he may at any time afterwards be arrested and dealt with in accordance with the provisions of section 161 as if he had been arrested at the time of committing such offence. Section 161 deals primarily with the apprehension of an offender and the inquiry that follows into his culpability at the stage of inquiry or investigation under the Customs Act, 1969. The onus to prove that the goods in question were not smuggled shifts upon the accused only if he has been served with a notice. Therefore, the non-compliance of the provisions of section, 171 is an illegality vitiating the whole trial. This point was examined in Azizullah v. The State reported in PLD 1981 Kar. 250, and was answered in the following words:- "The arrest of the appellant and the seizure of goods being in breach of the mandatory provisions of section 171, was, therefore, illegal:"
6. This view was followed in Ghufran Ahmed and others v. The State reported in 1983 P Cr. L J 620, Nabidad and 10 others v. The State reported in 1983 P Cr. L J 623, Shaukat Hussain v. Government of Pakistan and 3 others reported in P T C L 1982 (CL) 280. In the last cited ruling of this Court, a Division Bench consisting of Saeeduzzaman Siddiqui and Saleem Akhtar, JJ. It was held that where a notice under section 171 is not served on the owner or person in possession, the orders are rendered ineffective.
7. If a provision is mandatory, an act done in breach thereof will be invalid. The mandatory provision must be obeyed in letter and spirit and any breach of such requirements results in nullification of the act. The use of the word `shall' indicates the mind of Legislature and raises a presumption of its imperative character.
8. Therefore, without going into other grounds urged in support of this appeal, I allow tire appeal on this legal ground. The impugned judgment is se: aside and appellant Haji Siddique is acquitted. The fine, if paid; be, returned to him.