' MIAN MUHAMMAD AJMAL, J.---Through this judgment we propose to dispose of F.A.O. No,29 of 1998 and F.A.O. Nos.30 and 31 to 45 of 1998, as common question of law and facts are involved in these appeals.
2. Brief facts as asserted in the petitions are that Assistant Director,Customs Intelligence, Peshawar received information that huge quantity of smuggled tea has been stored in four godowns namely 'Sarai Daud', 'Sarai Barouz', 'Sarai Kaptaan' and 'Sarai Qayum' situated at Naz Cinema Road, Peshawar and there is apprehension that it is likely to be removed soon. The Assistant Director Intelligence (Customs and Excise), Peshawar applied to Sub-Divisional Magistrate, Peshawar under section 162 of the Customs Act, 1969 for deputing a Magistrate so that the customs officials may conduct the search in his presence. The S.D.M. Deputed Mr. Roohullah, M.I.C. To act as M.O.D. During the raid. The godowns were raided in-between the night of 4/5-2-1998 by the officials of the Customs accompanied by a Magistrate and local police. They broke the locks of the godowns and recovered therefrom back and green tea and some other goods. Abdul Saboor and Qari Mahmood were arrested at the spot and F.I.R. No,10 dated 6-2-1998 was registered under sections 156(1), (85), (89), (90) and 2(s) of the Customs Act, 1969. Statutory notices under section 171 of the Customs Act were also served at the spot. Recovery memos. Etc. Were prepared and due to huge recovery of smuggled goods, some of the seized goods were removed to the Customs Warehouse and some were entrusted to the Chaukidars after sealing the godowns. Show-cause notices were issued to the respondents containing the allegations who were directed to submit their replies. During adjudication some of the parties produced documentg with regard to the legal import of the seized goods and after scrutiny of the said documents, Collector of Customs and Central Excise, Peshawar vide his order dated 3-9-1996 released the goods which were legally imported and the remaining were confiscated.
3. Feeling aggrieved of the above order dated 3-9-1996, the respondents filed appeals before Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad Bench who after hearing the learned counsel for the parties, allowed the same and ordered the release of the confiscated goods vide his order dated 22-7-1997 which is impugned herein.
4. At the very outset learned counsel for the respondents raised a preliminary objection with regard to the competency and maintainability of the appeals. He argued that the appeals to this Court can only be preferred on the question of law and since no question of law has been formulated in the present appeals, therefore, these appeals are not competent. Replying to the aforesaid objection learned counsel for the appellants submitted that para.10 of the grounds of appeal contain the questions of law and it was not necessary to formulate the questions in the question form. Arguing on merits of the appeals, he contended that the adjudicating department has misapplied section 162 of the Customs Act, 1969 whereas in the facts and circumstances of the case the provisions of section 163 of the Act (ibid) were applicable. He argued that in order to avoid any untoward incident and the law and order situation, the Customs Authorities took alongwith them a Magistrate and local police for raiding the godowns of the respondents and in fact the search was conducted by the Customs Authorities within the scope of section 163 of the Act and not within the meaning of section 162 of the Act, as the said section has no application to the facts of the present cases.
6. Learned counsel for the respondents on the other hand contended that the Customs Authorities themselves applied for the issuance of search warrant under section 162 of the Customs Act to the Sub-Divisional Magistrate, Peshawar and now at this stage they cannot turn around and say that section 162 of the Act (ibid) is not attracted and instead section 163 of the Act is applicable. Mr. Isaac Ali Qazi, Advocate appearing in some of the appeals argued that the appeals are time- barred as the same had to be filed within thirty days on the receipt of the copy of the order whereas the same were filed after thirty-two days, as such they are time-barred by two days for which no condonation applications have been filed. He further contended that the recovery memos. Were not prepared on the spot but the seized goods were taken to the Customs Warehouse where the recovery memos. Were prepared, therefore, the Customs authorities did not act in accordance with law and the recovery was improper and illegal.
7. Section 162 of the Customs Act, 1969 relates to the issuance of search warrant by the Judicial Magistrate whereas section 163 of the Act ibid deals with the powers conferred on the Assistant Collector of Customs and alike officers to conduct search and arrest without warrant when there are reasonable grounds to believe that smuggled goods are likely to be removed. It would be appropriate to reproduce sections 162 and 163 of the Customs Act, 1969 for convenience sake below:-- "162. Power to issue search warrant.--(1) Any (Judicial Magistrate) may, on application by a Gazetted Officer of Customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.
(2) Such warrant shall be executed in the same way, and shall have the same effect, as a search warrant issued under the Code of Criminal Procedure, 1898 (Act V of 1898).
163. Power to search and arrest without warrant.--(1) Whenever any officer of Customs not below the rank of an Assistant Collector of Customs or any other officer of like rank duly employed for the prevention of smuggling has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under section 162, he may, after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search is to be made, search or cause search to be made for such goods, documents or things in that place.
(2) Any officer or person who makes a search or causes a search to be made under subsection (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address.
(3) All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).
(4) Notwithstanding anything contained in the foregoing subsections and subject to previous authorization by an officer of customs not below the rank of an Assistant Collector of Customs, any officer of Customs or any person duly empowered as such may, with respect to an offence related to exportation of such goods as the (Federal Government) may, by Notification in the official Gazette, specify in this behalf--
(a) arrest without warrant any person concerned in such offence or against whom reasonable suspicion exists that he is about to be concerned in such offence;
(b) enter and search without warrant any premises to make an arrest under clause (a), or to seize any goods which are reasonably suspected to be intended for exportation country to any prohibition or restriction for the time being in force, and all documents or things which in his opinion will be useful for or relevant to any proceeding under this Act; and
(c) for the purpose of arresting, detaining or taking into custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred, or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.
(5) The provisions of subsection (4) shall apply only to the areas within five miles of the land frontier of Pakistan, and within a five miles belt running along the sea coast of Pakistan.
(6) No suit, prosecution or other legal proceedings shall be instituted, except with the previous sanction in writing of the (Federal Government), against any person in respect of anything done or purporting to be done in exercise of the powers conferred by subsection (1) or subsection (2) or, in the areas specificd in subsection (5), by subsection (4)."
8. As far preliminary objection is concerned, we do not find any substance in it. Subsection (5) of section 196 of the Act provides that the High Court upon hearing the appeal under this section shall decide the question of law raised therein and deliver decision thereon containing the grounds on which such decision is made. It is not specifically required by law that question of law must be formulated in the memo. Of appeal in question form, however, it must contain and raise question of law. In sub-paras. Of para.10 of the memo. Of appeal questions of law have been raised though not formulated in question form, yet they fulfil the requirement of law. If for convenience sake questions of law are formulated, it may help the Court to answer them outright.
9. The Assistant Director, Intelligence and Investigation (Customs and Excise), Peshawar applied before the Sub-Divisional Magistrate, Peshawar for the issuance of search warrant under section 162 of the Customs Act. The application reads as under:-- "BEFORE THE COURT OF SUB-DIVISIONAL, MAGISTRATE, PESHAWAR ' SUBJECT: SEARCH UNDER SECTION 162 OF CUSTOMS ACT, 1969.
' Whereas, this office has an information of huge quantities of goods liable to confiscation being stored, and whereas, there is a danger that if action as per law is not taken immediately, the said goods may be removed. A search of the premises has become unavoidable.
' It is, therefore, requested that a Magistrate may kindly be deputed. So, that the officials of this office conduct the search in his presence.
(Sd.)
' Assistant Director, Intelligence and Investigation (Customs and Excise), ' Peshawar."
' The Sub-Divisional Magistrate, Peshawar on the said application recorded the following order:-- "Mr. Roohullah, M.I.C. Is deputed to act as M.O.D. During the raid."
Section 162 provides that any Judicial Magistrate on the application of Gazetted A Officer of the Customs may issue a warrant of search of the goods or documents liable to confiscation. In the instant case the application was not made to the Judicial Magistrate and it is not disputed by both the parties that Sub-Divisional Magistrate who passed the order was Executive Magistrate and not a Judicial Magistrate, therefore, the very application for the issuance of search warrant was improper and misconceived. The order passed thereupon is an executive order whereby he deputed a Magistrate to supervise the raid as Magistrate on Duty. The search conducted in pursuance to the said order of the S.D.M. In presence of Mr. Roohullah, M.I.C. Cannot be deemed to be a search in accordance with the provisions of sections 162 of the Customs Act.
Section 163 of the Act (ibid) deals with the powers of the Customs Authorities to conduct search of the goods and documents liable to confiscation without obtaining any warrant. Both the sections have prescribed different mode and manner for search as they have conferred different powers and have cast different obligation on the customs officials for conducting search under the said sections. As such both the sections are independent of each other and cannot be interchanged for one another. Since search warrant has required under section 162 of the Act (ibid) was not obtained, therefore, non-compliance of the statutory provisions rendered the search illegal and of no effect.
10. Under subsection (1) of section 163 of the Act (ibid), the Assistant Collector or any other officer of similar rank having reasonable grounds for believing that smuggled goods or documents have been concealed or kept in a place and are likely to be removed may, after preparing a statement in writing of the belief and of the goods, search or cause search without warrant of that place. In this case there is no such report available on the record to show that before search provisions of this subsection were complied with, and non-compliance with the statutory requirements renders the search and the subsequent action illegal and without lawful authority. It is well-settled principle of law that anything prescribed to be done under the law must be done in that manner or not at all.
Neither the provisions of section 162 nor section 163 of the Act (ibid) were stricto senso adhered to, therefore, the whole exercise of the customs officials was illegal and of no legal consequence.
11. As far question of limitation is concerned learned counsel for the appellants stated that soon after the receipt of the copy of the impugned order, appeals were filed. Since this point was not seriously pressed, therefore, the appeals are treated to be within time.
' Consequently this F.A.O. No,29 of 1998 and connected F.A.O.Nos.30 and 31 to 45 of 1998 are dismissed being devoid of any merits, with no order as to costs.