' QAISAR AHMED HAMIDI, J.--The question that has been raised in this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, relates to the interpretation of a Notification bearing No, S.R.O. 913(1)/86, dated 5th October, 1986, which was further amended by Notification No, S.R.O. 951 (I)/86, dated 21st October, 1986, and No, S.R.O.
293(1)/87, dated 20th April, 1987.
2. The material facts culminating in this petition, briefly, are that the petitioners who are jewellers by profession purchase old silver and golden ornaments, which are sent to Karachi kw refining. It is the case of the petitioners that such consignments of refined silver weighing 199-630 K.Gs. Were booked for them from Karachi through train which were seized by S.H.O. Railway P.S., the respondent No, 3, under section 550, Cr.P.C. On 11-3-1990. On 15-3-1990 a case under section 156(8)
(89) of the Customs Act, 1969 (Crime No,2 of 1990) was also registered against the petitioners. The attempts made b the petitioners to get back the consignments of silver also failed. It is in these circumstances that the petitioners have invoked the Constitutional jurisdiction of this Court seeking quashment of the above F.I.R. Lodged against them mainly on the ground that the action taken was without jurisdiction. They have also prayed for the return of silver seized on 11-3-1990.
3. Section 6 of the Customs Act, 1969, provides for entrustment of functions of the customs officers to certain other officers in the following words:-- "The Board may, by notification in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of customs under this Act to any officer of the (Federal) or Provincial (Government)."
4. This question was examined in the case of Iqbal Akhtar v. Ch. Muhammad Mushtaq and 4 others, reported in PLD 1977 Lahore 1318, and it was observed:-- "The conclusion at which I have reached is that what a Legislature can do by law, it can also within permissible limits of delegation, authorise the various functionaries to do. Reading Article 146 as a whole, all its three clauses, keeping in view that it is a provision of the Constitution, the organic law of the country, it would be pedantic, and a narrow construction to hold this power to be non- delegateable in all its forms. The true test, therefore, would be whether such a provision in an existing law as is found in section 6 of the Customs Act transgresses the bounds of permissible delegation. In examining this question, we find that Customs Act while providing a complete code for establishing a hierarchy of officers enumerating their powers and limitation, creating offences and penalties, prescribing procedure for conducting the affairs makes provision also (i) by section 3(d), Customs Act to assimilate officers and functionaries, otherwise outside that hierarchy within it
(ii) to confer powers and functions exercisable within the heirarchy set out in section 3 on rank outsiders to the hierarchy with the only qualification of there being an officer of the Federal or Provincial Government. These exceptional powers are manifestly individualistic in character, more concerned with the question of detail than in the domain of policy. Therefore, such an authorization would appear to be within the permissible limits of delegation by Legislature."
5. Admittedly certain functions of the officers of the customs were entrusted to different ranks of police officers. The question as to whether the offences under the Customs Act, 1969, were cognizable by Railway police, was examined in relation to Notification bearing No, S.R.O. 1029(1)/74, dated 29th July, 1974 in the case of Muhammad Yusaf and others v. The State, reported in 1987 P Cr.
L J 722, in which it was held:-- "In view of what I have stated above I am of the view that by virtue of the said Notification of the Central Board of Revenue the officers of the Railway Police of the ranks mentioned therein were competent to seize goods with respect to which there were reasonable grounds to believe that they had been smuggled into Pakistan. I would, therefore, repel the attack of the petitioners on the legality of the alleged seizure of goods on the ground of competency of the officers of the Railway Police."
6. The above Notification was, however, superseded by Notification No,S.R.O. 913(1)/86, dated 5th October, 1986, which as amended reads as follows:-- "ENTRUSMENT OF POWERS OF THE OFFICERS OF CUSTOMS TO THE OFFICERS OF POLICE.
Notification No, S.R.O. 913(1)/86, dated 5th October, 1986--In exercise of the powers conferred by section 6 of the Customs Act, 1969(IV of 1969), and in supersession of its Notification No, S.R.O.
1029(I)/74, dated the 29th July, 1974, the Central Board of Revenue is pleased to entrust to the officers of Police (excluding Pakistan Railways Police constituted under the (Pakistan Railways Police Act), 1977 (VII of 1977) specified in the first column of the table below the functions of officers of customs under the provisions of the said Act specified in the second column of that table.
S.No.OfficersProvisions of the Act (Sections)
1Officers not below therank of Sub-Inspector, within their respectivejurisdictions.158;160; 161 (1)& (2), 164- 165;168 (1) and (3); 172 and 174.
2Officers not below therank of Assistant Superintendent of Police/Dy. Superintendent ofPolice, within theirrespective jurisdictions.161(3), (4), (8)&(10); 162(1);163 and 166 3Officers not below the rank of Superintendentof Police, within theirrespective jurisdictions."176
7. By this Notification the Pakistan Railways Police constituted under the Pakistan Railways Police Act, 1977, was expressly excluded from the category of the officers of the police who were entrusted with certain functions of officers of customs. There is, therefore, good deal of force in the contention of the counsel for the petitioners when he states that the Railways police was not competent to seize the refined silver or register the case against them.
8. When an exception is attached to a Notification it is to be assumed that the same is to be excluded from the operative part of the said Notification. It, therefore, follows that the officers of Pakistan Railways police are not competent to act as officers of customs like officers of ordinary police.
9. It may be added that the Customs Act, 1969, is a complete Code in itself, creating its own functionaries and laying down its own procedure including submission of challans. The officers who are not entrusted with the functions of an officer of customs under section 6 of the Customs Act, 1969, are, therefore, not competent to seize the alleged smuggled goods, register the F.I.R. And submit the charge-sheet.
10. As observed in the case of Yaqoob Khan and another v. The State and 3 others, reported in 1971 P Cr. L J 266, the High Court has got the power, in a suitable case to quash the proceedings even at the investigation stage. This view gets full support from the case of Byram D. Avari, etc. v. The State, reported in NLR 1989 Criminal 460, wherein it was held that the functionaries sitting in police stations do come within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and the F.I.R. And warrants of arrest issued in pursuance of F.I.R. Are not immune from interference in writ jurisdiction if the impugned actions are found to be mala fide in law.
11. It, therefore, follows that all the proceedings taken by respondents, are without lawful authority and of no legal effect and it is so declared. All the subsequent proceedings before any authority which are based on such an illegality F are non-existent in the eye of law. The silver so seized shall be returned to the petitioners. The petition is accordingly allowed, but the parties are left to bear their own costs.