QAISER AHMED HAMIDI, J-l. Appellant Noorul Hassan and i.e others were tried by the Special Judge (Customs and Taxation), Karachi, for the offence under clause (8) of section 156(1) of the Customs Act, 1969. The appellant was convicted and sentenced to suffer S.I. For six months and to pay a i.e of Rs. 4,000 or in default to suffer S.I. For four months, while co-accused Nabi Bux, Achar, Ghulam Rasool Shah, Bohtar and Moghul were acquitted for want of evidence. By this appeal the appellant seeks to challenge his conviction and sentence recorded on 30th August, 1979.
2. On 17th June, 1973, S.H.O. Tando Adam Police Station, on receipt of secret information organised a raiding party and seized Bus No. KAZ-9797, which was parked in banana cultivation of one Muhammad Khan. The appellant, who is the driver of the said bus, was present there. The bus was searched in his presence by the said S.H.O, who secured 29 bags of beter leaves, weighing 18-24 maunds. On return to police station the S.H.O, lodged F.I.R, on behalf of State. During the course of investigation co-accused Nabi Bux and others were arrested and all to them were sent up to stand trial for the offence under section 156(1)(8) of the Customs Act, 1969.
3. I have heard Mr. Abul Khair, learned counsel for the appellant and Mr. Jalaluddin Baloch, learned counsel for the State.
4. The learned counsel for the appellant has referred to several points, but eventually confined his arguments in the main to the following contentions:-
(i) That there was non-compliance of section 171 of the Customs Act, 1969, which is an illegality vitiating the trial.
(ii) That the origin of betel leaves is not ascertainable and in the absence of any evidence establishing the same of foreign origin, no penal action was sustainable.
(iii) That the prosecution having failed to exhibit the betel leaves in Court, which were destroyed by the Customs Authorities, have committed material illegality, thereby vitiating the trial.
5. As to first of the above contentions, I have carefully examined the evidence of the witnesses produced by the prosecution, and I am satisfied that there was no compliance of section 171 of the Customs Act, 1969, which lays down that when anything is seized, or any person is arrested under this Act, the Officer or other person making such seizure or 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. This question was examined by Zaffar Hussain Mirza, J. (as he then was) in the case of Azizullah v. The State, reported in P.L.D. 1981 Karachi 250, who was pleased to observe as follows:-- "I have no doubt in my mind that the provisions of this section are mandatory and were designed to protect persons from being arrested or goods from being seized on unjustifiable grounds which could be subsequently examined by the Court or the relevant authority on the objection of aggrieved persons."
6. The non-compliance Of section 171 of the Customs Act, 1969, is not a lacuna which can be cured under section 537, Cr.P.C., but is an illegality vitiating the trial itself. Where a provision of law requires execution of a matter in a specified manner, the will of legislature should be carried into effect. Mr. Jalaluddin Baloch, learned counsel representing the State, with his usual fairness has also conceded to this position.
7. There is also nothing on record to show that the betel leaves alleged to have been secured from the bus driven by the appellant were of Indian origin. Muhammad Ahmed Siddiqui, Deputy Superintendent, Central Excise and Land Customs, Hyderabad, who was examined as (C.W-1) has made the following statement:-- "The record also did not show as to from which country the goods were imported. The origin of the betel leaves could not be ascertained, because they were in deteriorated condition. In Karachi and Thatta betel leaves are grown on small scale on experimental basis. Betel leaves used to be imported from the then East Pakistan. Betel leaves are also imported from Ceylon and India."
8. On the face of this admission there was hardly any evidence to show that the appellant has smuggled betel leaves or was found in possession of smuggled betel leaves.
9. Admittedly the case property was not exhibited in Court and was destroyed by the Customs Authorities. The effect of non-production of case property during the trials was examined in Budho vs. The State , reported in 1973 P.Cr.L.J. 395, Khairuddin v. The State, reported in 1974 P Cr. L.J. 219, and Muhammad Sharif etc. v. The State, reported in PTCL 1983 CL. 373. The conviction recorded against the accused persons involved in these cases was set aside due to the said noncompliance.
10. After carefully considering the contentions raised on behalf of the appellant and after hearing learned counsel appearing on behalf of the parties, I am of the view that all the /'contentious must prevail. I, therefore, allow the appeal and set aside the conviction of the appellant. The appellant, who is on bail, is discharged from his bail bond. The i.e, if paid by the appellant be returned to him.