' On 8-4-1981, at about 2 a.m., the applicant was apprehended at International Departure Hall, Karachi Airport, while leaving for Bangkok and from his possession currency of different countries, valued at Rs,49,600 was recovered. A case under clause (8) of section 156(1) of the Customs Act, 1969, was registered against the applicant and after usual investigation he was sent up before Special Judge (Customs and Taxation), Karachi, on 9-5-1981. No progress could be made in this case till 29-2-1988, when one out of three witnesses cited on behalf of prosecution was examined.
In the meanwhile the applicant had applied for his acquittal under section 265-K, Cr.P.C. For want of evidence. The prayer was, however, refused by the learned Special Judge vide order, dated 6-4- 1988, giving rise to the present revision application filed under section 185(f) of the Customs Act, 1969, read with section 435/439, Cr.P.C.
2. I have heard Mr. K.M. Nadeem, learned counsel for the applicant and Mr. Ashiquc Ali Zaidi, learned counsel for the State. The learned counsel for the applicant has referred to several points, but eventually confined his arguments in the main to three contentions:-
(i) That the delay of about 8 years in the conclusion of trial tantamounts to denial of justice, and thus an abuse of process of law.
(ii) That there is no probability of the applicant being convicted of any offence, as the search of the applicant was conducted in violation of section 159 of the Customs Act, 1969.
(iii) That the currency alleged to have been seized from the possession of applicant has not been produced in Court, giving rise to an inference that the same does not exist now.
3. I now proceed to examine the point of delay. The policy of criminal law is to bring persons accused to justice as speedily as possible so that if they are found guilty, they may be punished and if they are found innocent they may be acquitted. Delay in justice amounts to denial of justice.
Delay causes severe hardships to the parties and may in general affect litigants differentially. It is bad because it brings to the entire judicial system a loss of public confidence and respect. In the case of M.S. Khawaja v. The State reported in PLD 1965 SC 287 the question of delay was considered in the following context:- "The impression is gained from these quotations that in the learned Single Judge's view time was of the essence for the competency of a criminal prosecution and to that extent, we must obs, rye that his views cannot be accepted as of universal application Limitaion does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter-parties. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the I public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so, as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
4. The Supreme Court of Pakistan has, therefore, left it open to exercise inherent powers, to prevent abuse of process on the ground of delay, although in a very rare case.
5. Delay in trial, whether deliberate or due to circumstances beyond control, causes a great mental agony and a sort of punishment without trial and conviction. Mr. K.M. Nadeem, learned counsel for the applicant has invited my attention to the cases reported as Abdul Hague v. The State PLD 1964 Lah. 246, Amanullah Khan and others v. The State PLD 1965 Kar. 310 and State of Behar v. Uma Shankar Ketriwal and others 1982 PSC 334, in an attempt to show that luxury of protracted trial cannot be allowed to the prosecution, and if prosecution is not in a position to produce only three witnesses during a period of about 8 years, the Court should not allow the prosecution to go on any further. I am in agreement with the view taken by learned counsel for applicant. I may also add that much water has passed under the bridge since the time we have inherited the British system of administration of justice. It is high time now that something should be done to save litigants from such unjustified harassm ent. People have already lost faith in the efficacy of administration of justice. Such instances of delay in disposal of cases are bound to produce a sense of despair and frustration.
6. The provisions of section 265-K, Cr.P.C., however, cannot be invoked for recording acquittal on the ground of delay. The learned Special Judge had, therefore, no option, but to dismiss such application. The proceedings pending before the Special Judge again cannot be quashed in a revision application. I would have converted the application into a petition under section 561-A, Cr.P.C. But since I propose to allow the revision on other ground, no further action is necessary.
7. Chapter XVIII of the Customs Act, 1969, deals with powers of search, seizure and arrest. Section 158 empowers the appropriate officer to search a person on reasonable ground. Section 159 lays down the procedure to be adopted while making search in the following manner:- "159. Persons to be searched may desire to be taken before gazetted officer of customs or Magistrate-
(1) When any officer of customs is about to search any person under the provisions of section 158, the officer of customs shall inform such person A about his right to be taken to a gazetted officer of customs or Magistrate, and if such person so desires, take him without unnecessary delay to the nearest gazetted officer of customs or Magistrate before searching him, and may detain him until he can be so taken.
(2) The gazetted officer of customs or the Magistrate before whom such person is brought shall, if he sees no reasonable ground for search forthwith discharge the person and record reasons for doing so, or else direct search to be made.
' Before making a search under section 158, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do, and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.
(4) A female shall .Not be searched except by a female."
8. Subsection (1) makes it obligatory upon the officer of customs to inform such person, who is to be searched, about his right to be taken to a gazetted officer of customs or Magistrate, and if such person so desires take him to the nearest gazetted officer of customs or Magistrate before searching him. There is no indication in the F.I.R. Or in the evidence of Muhammad Jilani Khan (P.W.1) that he is a gazetted officer of customs within the meaning of section 159 of the Customs Act, 1969. The learned counsel for the State has also not assisted me in this behalf. The line of cross-examination made to Muhammad Jilani Khan (P.W.1) shows that the applicant had desired to be taken to the nearest Magistrate, but he was not taken. The word 'or' used in between the words `gazetted officer of customs' and 'Magistrate' is disjunctive indicating an alternative.
Therefore, the person to be searched has a choice, either to be taken to the nearest `gazetted officer of customs' or a Magistrate. Any search made before informing such person about his right will, therefore, be a nullity. By using the word 'shall' the legislature has made its intention clear.
Subsection (2) of section 159 of the Customs Act, 1969, again empowers such officer of customs or the Magistrate to discharge such person without making search, if he sees no reasonable ground for search. Therefore, the compliance of subsection (1) of section 159 is not an empty formality. This provision of law is again not made for decoration purpose only. If both these subsections are examined together, it leaves no room for doubt in my mind that this provision has got a mandatory character. The record does not show that any attempt was made to inform the applicant about his right of being taken to the nearest gazetted officer of customs or the Magistrate. If a provision is mandatory an act done in breach thereof wills be invalid. The mandatory provision must be obeyed in letter and spirit and any breach of such requirement results in nullification of the act.
9. This view gets support from the cases reported as Sycd Abdul Nabi v. The State PLD 1988 Lah.
146 and Rothan Bacher Peter v. The State PLD 1989 Pesh.
47. In the first cited case the object of section 159 of the Customs Act, 1969, was highlighted in the following words:- "The object of section 159 is to prevent highhandedness being committed by Customs Officers and innocent persons being falsely involved. In a genuine case the person affected would like to seek protection of a senior officer of Customs or the Magistrate, where he could also plead his case. The said section is intended to meet such a case, for if the gazetted officer of Customs or the Magistrate sees no reasonable grounds for search, he may forthwith discharge the person and record reasons for doing so; otherwise he could direct that search be made in the presence of two witnesses. Since neither of the Customs Officers informed the appellant of his right, the search was illegal."
10. The applicant is entitled to an acquittal under section 265-K, Cr.P.C. On this score alone.
11. In the last a feeble attempt has been made to show that currency involved in this case has been utilised and it does not exist now. My own judgment reported as Noorul Hassan v. The State 1989 P Cr. L J 631 is relevant in a situation like this. The currency is, however, available in State Bank of Pakistan and Mr. Ashique Ali Zaidi, learned counsel for the State has made such statement before me.
12. For the foregoing reasons, I accept the revision application and direct the acquittal of applicant forthwith. He shall be discharged from his bail bond.