JUDGMENTMUNAWAR AHMAD MIRZA, C J.- Facts mentioned in the petition briefly are,that Customs authorities received information about smuggling of goods towards Karachi.
Thus on 6th May, 1993, Coach No. QAE 8001, proceeding towards Karachi was searched at 1830 hours. It is the case of petitioner that contraband goods having OF value of Rs. 331550/- were recovered from said vehicle. While Customs staff was still searching above referred Coach, Levies staff accompanied by Tehsildar Naseer Ahmed and Naib Tehsildar Nisar Ahmad arrived at the spot. They obstructed removal of seized goods by the Customs authorities whereupon hot words were exchanged between officials of two agencies. It is alleged that Tehsildar opened fire, upon Customs party whereby official vehicle No. QAF 7448 was hit, and a Customs sepoy namely; Abdul Rehman received Are arm injuries, causing his death.
2. Respondent Nos. 5 and 6 were taken into custody in connection with abetment of smuggling under sections 156 (1) (85) Customs Act. Since Customs Authorities did not have lockup facilities, therefore, apprehended respondents were kept at Sariab Police Station. FIR concerning murder of Customs sepoy Abdur Rehman was separately lodged with Police Station Mastung. It may be seen that, meanwhile case against Customs authorities for abduction of respondents 5 and 6 was registered with Mastung police Station which appears to be pending investigation. However, through certain arrangement with District administration Quetta respondents 5 and 6 detained at Sariab Police Station were released/delivered to the custody of District Magistrate, Mastung.
Petitioner feeling aggrieved from their release filed present petition seeking following relief:- "It is accordingly respectfully prayed that this Hon'ble Court may be pleased to declare:-
(a) that the action with regard to release of respondent Nos. 5 and 6 (accused persons) by the respondent Nos. 1 to 4 are highly uncalled for, unwarranted by law and illegal as well as comm non judice, hence liable
(b) that the respondent Nos. 5 and 6 be given to he custody of the Customs authority for the purpose of investigation and proceedings in accordance with the law under the Custom Act, 1969;
(c) any other relief as is deemed fit and proper in the circumstances of the case;
(d) cost of the petition may also be awarded, in the interest of justice."
3. It may be seen that challan, pertaining to murder case of Customs- sepoy arising out of FIR No. 28/93 Police Station Mastung dated 6.5.1993 has been submitted by Crimes Branch, Balochistan, Quetta before Special Judge Suppression of Terrorist Activities, Quetta, and trial is reported to have commenced. Whereas during the pendency of present petition investigation inCustoms Case was also completed and challah submitted before Special Judge Customs Mastung on 18th August, 1994.
4. Respondent No3 had filed counter affidavit on 16.6.1993 ailing that District Magistrate, Mastung at 7.00 P.M. Telephonically informed him about abduction of Tehsildar and Naib Tehsildar, Mastung by Customs Staff therefore, all concerned were made alert to search Customs vehicles, for recovering said abductees. (1)her Tehsildar and Naib Tehsildar were found under confinement with Customs (Preventive) Staff. Illaqa Magistrate and police who reached Customs (Preventive) House, secured the custody of said abductees through a letter, specifying that they were booked for offences causing violation of Customs Act. District Magistrate, Mastung also reached Quetta and subsequently custody of Tehsildar and Naib Tehsildar was transferred to him. His reasons for handing over custody of abductees are reiterated below: "A. As per information given by the District Magistrate, Mastung the case of abduction in the matter had been registered by the Mastung Police on the basis of which the Mastung Administration/Police had formally and informally requested for the recovery of the abductees.
B. Even if contention of the Customs Authorities was found correct, the Tehsildar and Naib Tehsildar Mastung should have been kept in custody of Mastung Police and the lock up of P.S. Mastung should have been used for the custody of the Tehsildar and Naib Tehsildar.
C. The letter handed over by the Customs Staff to S.H.O. Sariab at the time (1030 to 11.00 pam) of the recovery of the reported abductees and their confinement in the Customs (Preventive) House appeared to be a measure to cover up their illegal action and the contention of customs staff at this stage appeared to be untenableprima facie.
"5. Petitioner on 8th July, 1993 had filed rejoinder to counter-affidavit, wherein stand of respondents was repudiated. He maintained that conduct of levies in resorting to firing apart from being unlawful was highly objectionable, which is fully proved by recovery of kilashankov from their possession. The improper conduct of levies had been detailed in rejoinder to counter-affidavit. It was emphasised that District Magistrate Quetta or Mastung was not competent to release the accused persons apprehended by Customs authorities because under section 185(b) Customs Act, only Special Judge Customs had exclusive jurisdiction to deal with offenders under said law.
6. Respondents No.5 and 6 filed counter affidavits on 20th December, 1993 asserting that they were returning to Mastung alongwith driver and two levy sepoys in a private car when road was blocked.
Some passenger buses and coaches, bound for Karachi had been stopped by Customs' personal Respondents 5 and 6 being connected with law and order situation alighted from their motorcar and enquired reasons of said blockade. It is the case of private respondents that passengers of Public Transport including women folk were highly agitated and protested against behaviour of Customs personnel because they were being deprived of their baggage in' the garb of recovering smuggled goods. It is appropriate to reproduce below relevant assertions appearing in Paras (iii),
(iv) and (v) of said counter affidavit:- "ii)After making enquiry from the passengers respondents No.5 and 6 contacted one Inspector Sabir Hussain Shah who was known to them previously. Two other Inspectors were also there. While the respondents were asking the Customs Inspectors to behave with passengers properly, the customs officers became rude and told respondents No. 5 and 6 that District Administration has been doing "Badmashi" with customs staff and that previously customs staff was mal handled by the district administration near Mach and in Daht.
(iv) Respondents No.5 and 6 tried to appease the passengers and also requested the customs staff not to annoy the people and not to snatch their belongings. At this stage the customs staff and their sepoys numbering about 20 to 25 abused respondents No.5 and 6 and attacked on the said respondents and two levies sepoys who were accompanying them. In the ensuing scuffle the Govemment kalashinkov was forcibly snatched from levies sepoy Muhammad Aslam and all the four persons were beaten up.
(v) The customs staff forcibly threw respondents No.5 and 6 into their vehicles and one officer of the customs said that these people will be- dealt with properly when we reach Quetta. Both the respondents were handcuffed on the way to Quetta from Mastung and all the way both the respondents were beaten up. The respondents No. 5 and 6 were taken to the old customs house near Sariab. They were confined in a room and tender or 15 sepoys of customs again beat them up.
Both were bleeding profusely. Respondent No. 5 received severe blows on his nose which was badly broken."
7. Arguments were addressed at length by Mr .Yahya Bakhtiar learned Advocate for petitioner, Mr. Yaqoob Khan Yousufzai learned Advocate General M/S S-Am. Quadri and Mohsin Javed learned counsel for respondents 5 and 6.
It was mainly urged that Customs authorities have jurisdiction to apprehend persons connected with commission of offences under Customs Act, 1969 and District Magistrate was not justified to release respondents 5 and 6 because exclusive jurisdiction in that behalf vested in Special Judge Customs, constituted under section 185(b) Customs Act As a necessary corrolory custody of private respondents was pressed. Learned A.G. Termed conduct of Customs authorities as well as levies, highly improper and prejudicial to public interest. Learned counsel for respondents attempted to justify release of respondents 5 and 6 by the District Magistrate, however, they strongly objected, custody of private respqndents to petitioner because according to them after submission of Challan, practically petition has become infructuous.
8. We have carefully considered the arguments addressed by learned counsel for parties and perused material on record. It may be seen that District Magistrate, Mastung in the comments filed by him on 7.6. 1993 made insinuatingremarks against Customs personnel who had apprehended respondents 5 and 6. It was suggested that Customs Mobiles generally pester people by forcibly recovering foricles from passengers travelling in public transports, with ulterior motives. It was asserted that several reports pertaining to their high handedness were made to higher authorities, but in vain. It was explained that respondents 5 and 6 had been teleased in persuance of order dated 11th May, 1993 passed by District Magistrate exercising powers of Sessions Judge, which vested in him at the relevant time. It is also the case of private respondents that their involvement was malafide in order to cover illegal action of Customs personnel and as a counter-blast of abduction case already registered with Mastung police under FIR . No. 27/93.
9. Firstly we are loathed to express, that apparently conduct of both sides is highly alarming and prejudicial to public interest. Both the agencies have attributed serious motives against each other which are clearly reflected from the pleadings. It gives an impression that levies and customs personnel are involved in respective departmental vendetta, trying to assert supermacy over each other suggesting nefarious gains. Unfortunately in such tussle valuable life of a Customs sepoy namely, Abdur Rehman was lost, and murder case has been challaned, before court of competent jurisdiction. It appears that neither Customs authorities, nor local-administration is at all bothered about the same. Additionally it was brought to our notice that another customs-sepoy has been killed in a subsequent incident. Both sides appear to be indifferent about frequent murders of low grade officials and are persisting in misusing and mis-exercising their powers either to acquire undue-gains or establishing their supermacy. Apparently functionaries of both agencies are unable to rationalize their obligations as individuals, citizens or holders of public office which is resulting in chaos. The levies and Customs, has its own activities and functions separately carved out. They have however, to perform duties in their respective spheres which are well defined. Any encroachment to the legitimate field of other of excess of authority by either agency is bound to produce harmful results adversely affecting society at large. Whatever, may be the object, it is certainly high-time when senior functionaries of the Government, should define their respective limits so that instead of following nefarious persuits or indulging in petty conflicts, these agencies should work for public benefit and utilize their energies for eradication of evils at root cause.
10. Reverting to merits if may be seen that basic question requiring consideration revolves around competency of District Magistrate to release persons apprehended under the Customs Law.
Section 185(b) of Customs Act explicitly mentions, that no forum other than Special Judge Customs having jurisdiction to try the offence, is competent to grant bail to persons apprehended, for offences under Customs Act. It is thus abundantly clear that District Magistrate even while exercising powers of Sessions Judge had no jurisdiction to grant bail to accused found concerned with offences under Customs Act. Even otherwise District Magistrate Mastung was personally persuing release of respondents No. 5 and 6 and had also reached Quetta as reflected from his$/comments, therefore to keep scabes of balance, even, he should have refrained from hpJng Judge of his own cause. Such anxiety or exercise of jurisdiction conflicts with established judicial norms. However, it is pertinent to note that during pendency of this petition, respondents No. 5 and 6 were interrogated and now challan under Customs Act has been submitted , before concerned Special Judge. Therefore, irrespective of initial defect in the grant of bail, no justification easts for delivering their custody to petitioner as prayed for in the petition. Relief in that behalf has obviously become infructuous. Petitioner if aggrieved can always approach forum of competent jurisdiction for cancellation of bail if justification in that behalf exists. Accordingly petition disposed of in the above terms, with no orders as to costs.
Copy of judgment may be sent to Secretary Interior Division, Islamabad, Chief Secretary, Balochistan and Chairman Central Board of Revenue, Islamabad for adopting immediate necessary measures so that repetition of such unfortunate events could be averted in future.