1. ' I intend to dispose of all the above special bail applications by single order as above applications are the outcome of F.I.R. No, Appg.56-DC-L/2001, dated 3-11-2001 recorded by Sardar Muhammad Yousuf in respect of two containers, which were intercepted in the following circumstances:-- ' The Director of the Directorate of Intelligence and Investigation (Customs and Excise), Karachi received an information that Choudhry Abid and Tahir in association with Private Bonded Carriers, Messrs AlTajjir & Co. (Pvt.) Ltd. CHAL No,436, Karachi with other culprits are smuggling electronic' goods, cigarette paper, silk yarn fabrics and miscellaneous items under the garb of waste paper under the facilities of transhipment and are disposing contraband goods from their private godowns at S.I.T.E. In the local market by breaking open the seals of the containers at Karachi. On the basis of the information two teams were constituted by the Director and a strategy worked out under the supervision of Assistant Director who mounted surveillance on the consignments of Private Bonded Carriers Messrs Al-Tajjir & Co. (Pvt.) Ltd. CHAL, Karachi for transshipment from KPT, Karachi to Faisalabad Dry Port under T.P. Nos.674/30 and 675/31, dated 30-10-2001 declared as (waste paper all sorts), imported vide IGM No,1794/01, dated 29-10-2001, Index Nos.34 and 35 in the name and style of Messrs Apex International Business Commercial Area Millat Road, Faisalabad in two 40 ft. Containers Nos.HDMU-6228561 and HDMU 6177206, loaded at Trailer Reg. No,LS-3543 and LS-3783 respectively.
2. ' During the surveillance on 1-11-2001 the Trailer Regd. No,LS-3783 lodged with the consignment of waste paper destined for Faisalabad Dry Port under T.P.675/31, dated 30-10-2001 instead of proceeding to its destination was noticed dumped at Plot No, F-407 Zia More, S.I.T.E., Karachi, whereas the other consignment under T.P. No,634/30, dated 30-10-2001 transported for Faisalabad Dry Port loaded on Troller No,LS-3543 after taking a short deviation was parked in front of the Gate No,18, West Wharf, Karachi. The constituted teams kept discreet watch over the two consignments so that the actual culprits involved in the commission of the offence could be apprehended. On 2- 11-2001 the members of the team headed by the Assistant Director Khalid Mehmood noticed that three persons entering the gate of the Plot No,F-407, Zia More, S.I.T.E., Karachi. The three persons namely Choudhry Abid Saeed, occupant/tenant of the open area of the aforesaid plot (applicant in Special Criminal Bail No,31 of 2001), Malik Ali Asghar, Manager (applicant in Special Criminal Bail No,32 of 2001) and Abid Raza (applicant in Special Criminal Bail No,33 of 2001) were intercepted in presence of two witnesses namely Saeed Farooq, Investigating Officer and S.Z.A. Khawar, A.O. The statement under section 163 .Of the Customs Act was served upon Ch. Abid Saeed before commencement of the search. The trailer bearing Reg. No,LS-3783 loaded with 40 ft. Container No,HDMU-6177206 was found parked in the open area of the aforesaid plot. Choudhry Abid Saeed, Malik Ali Asghar and Abid Raza were asked to declare the contents of the container and as to why the container was not transported to its destination, all the three persons could not reply satisfactorily, however, Ch. Abid Saeed produced photo copies of T.P. No,675/31, dated 30-10-2001 alongwith invoice and bill of lading in support of the lawful possession of the consignment. The seals of the container were not found. In presence of the two witnesses cursory examination of the container was conducted and it was found that instead of waste paper, contraband cigarette paper, washing machine, Fridge and Aluminum Foil of foreign origin were recovered. Since it was not possible to search the container thoroughly without proper facilities, the contraband goods and container loaded on Trailer No,LS-3783 alongwith three persons with witnesses were escorted to the office of the Directorate-General of Intelligence and Investigation (Customs and Excise), B- 70, K.D.A., Scheme No,1, Karsaz Road, Karachi, against proper Mushirnama prepared on the spot and duly signed by the witnesses. In the meantime the other surveillance team was directed to intercept the other consignment transhipped under T.P.No,674/30, dated 30-10-2001 loaded on Trailer No,LS-3543 driven by Abdullah parked outside the Gate No,18, West Wharf,. Karachi in presence of two witnesses namely Fakhar Ali Shah, E.O. And Abdul Hakim Baloch sepoy the driver was asked to produce the documents in support of the lawful possession of the consignment to which he produced a copy of Brinks sealing certificate No,122500 dated 1-11-2001, however, the seal was not found on the container, he further disclosed that he was hired to transport the container to Plot No,F-407, Zia More, S.I.T.E., Karachi. The trailer alongwith Container No,HDMU-6228561 with driver Abdullah was also escorted to the office of the Directorate-General of Intelligence and Investigation (Customs and Excise), B-70, K.D.A. Scheme No,1, Karsaz Road, Karachi against proper Mushirnama prepared on the spot and duly signed by the witnesses.
3. ' The search/examination of the containers took a long passage of time due to lack of de-stuffing facilities available in the absence of labour and lifter etc., however, in presence of two witnesses namely Saeed Farooqi, Investigating Officer and SZA Khawar, A.O. And Ch. Abid Saeed, Malik Ali Asghar, and Abid Raza and Container No,HDMU-6177206 loaded on trailer Reg. No,LS-3783 brought from the open area of Plot No,F-407, S.I.T.E., Karachi, was thoroughly examined on 2-11-2001, which resulted in the recovery of contraband cigarette paper, aluminum foil, old and used two washing machines, one fridge, one grinding machine and one deferential. The aforesaid persons could not produce any legal document in support of the lawful possession and the import thereof, the contraband goods, container and trailer alongwith photocopy of T.P.No,675/31, dated 30-10-2001, invoice bill of lading with Ch. Abid Saeed, Malik Ali Asghar and Abid Raza were taken into custody against proper Mushirnama and inventory prepared on the spot and duly signed by the witnesses.
4. The signature of three accused persons namely Ch. Abid Saeed, Malik Ali Asghar and Abid Raza were obtained over the inventory of the goods.
5. ' The second consignment in 40 ft. Container No,HMDU-6228561 loaded on Trailer No,LS_3543 was also examined/searched in presence of same witnesses under arrested accused persons Ch. Abid Saeed, Malik Ali Asghar, Abid Raza and Abdullah driver of the trailer, which resulted in the recovery of smuggled cigarette papers, aluminum foils, raw silk, fabrics/elveteen. T.Vs. Bearings, split air- conditioners and other miscellaneous electronic goods of foreign origin. The smuggled goods were weighed in presence of the accused persons which came to 19330 kgs. And 22910 kgs. Respectively.
6. The three under arrest accused and driver of the trailer could not produce any legal document in support of the lawful possession of the import thereof. The smuggled cigarette papers, aluminum foils, raw silk, fabrics/velveteen T.Vs. Bearings, split air-conditioners and other miscellaneous electronic goods of foreign origin, Container, No,HDMU-6228561, Trailer No,LS3543, brinks sealing Certificate No,122500 dated 1-11-2001 and photocopy of T.P. No,674/30, dated 30-10-2001 were taken into custody against proper Mushirnama and inventory prepared on the spot duly signed by the witnesses, the signature of the under-arrest accused persons and trailer driver were obtained on the inventory. Notice3 under section 171 of the Customs Act, were served upon the accused persons.
7. The accused persons have violated the provisions of sections 2(s), 16, 157(2) and 178 punishable under clauses (8) and (77) of section 156(1) of the Customs Act.
8. ' During preliminary investigation, it was revealed that the private bonded carrier Messrs Al-Tajjir & Co. (Pvt.) Ltd., Karachi owned by accused Syed Shams Ahmed Burney were solely responsible for the transhipment of consignment cleared under transport permit to its destination, but due to novel modus operandi the contraband goods imported under the garb of waste paper taken out from the containers and disposed of in the local market whereas the waste paper as declared in the import documents were stuffed in the containers for custom examinations at Dry Port, Faisalabad. It was further revealed that during investigation of under-arrest accused Ch. Abid Saeed that the electronic and miscellaneous goods were smuggled in partnership with one Tahir.
9. The under-arrest accused driver Abdullah disclosed the name of the other driver of the Trailer No,LS-3783 Abdul Razzak.
10. ' On the basis of the aforesaid information, inquiry was conducted. Interim charge-sheet has been submitted before the Special Judge (Customs and Taxation), Karachi.
11. ' Applicants applied for concession of bail pending their trial before the Special Judge (Customs and Taxation), Karachi by separate applications, which were dismissed by order, dated 22nd November, 2001. Hence the present applications for bail pending their trial.
12. ' I have heard learned counsel for the applicants and the State and also perused the papers. Mr. S. Tariq Ali, Federal Counsel has opposed the applications.
13. ' Mr. Sohail Muzaffar, learned counsel, argued with vehemence that the case of the applicants require further inquiry and has raised the following points in support of such plea:--
(I) That in absence of Notification notifying 'police station for the customs in terms of clause (r) of subsection (1) of section 4, Cr.P.C. By the Provincial Government, therefore, report against the applicants and all the proceedings initiated and taken on such report would be coram non judice as Customs Officer in absence of any notification notifying the police station for the purpose of custom cannot initiate or register an F.I.R.
(ii) That the consignment being transhipment and destined for Dry Port, Faisalabad, as such, if there was any misdeclaration, the Custom Officer has no jurisdiction in terms of Customs General Order No,15 of 1989, dated 21-10-1989. The transhipment is regulated by Public Notice No,2/96(A), dated 26-6-1996, which is known as Custom Transhipment of Imported goods to the Custom Port Procedure, 1996, regulating the procedure for transhipment. In case any misdeclaration has been noticed, it is for the Custom Officials at the port of the destination to take action and the Custom Officers on noticing any misdeclaration or breakage of seal has to reseal and escort the same and hand over the consignment to the Custom Officials at the Dry Port. Any action taken at Karachi by Customs Officer would be without jurisdiction.
14. ' Mr. Sohail Muzaffar has referred two judgments of Division Bench of this Court involving misdeclaration/suspecting contraband discovered in respect of such consignment at the port of Karachi. On the basis of Custom General Order No,15 of 1989 applicable to transhipment. (i)
15. Famous Corporation v. Collectorate of Customs Appraisement, Karachi 1989 MLD 2322. The facts were that the petitioner had imported certain consignment of rubber scrap. They want to clear the same at the Dry Port, Lahore in terms of a public notice, dated 12th June, 1988. The case of the respondent was that they have information that the above consignments contravenes the law. The contention of the petitioner was that in terms of para. 2 of the above public notice, the information is to be conveyed by the Custom House, Karachi, to the Dry Port by telex or telephone, and therefore, the Customs Officer at Dry Port can examine the above question and can take action in accordance with law against the petitioner if factually they have made any contravention. The petition was disposed of with the direction that Karachi Custom House may convey the information to the Dry Port Authority and there, the Customs Officers can examine the question whether there has been factually and contravention of the Customs Law or any other law and may take action against the petitioner if so warranted. If the consignment has already been examined by the Customs Officers at Karachi, the same may be resealed and may be forwarded to the Dry Port alongwith the report, if any. (ii) Hameedullah v. Directorate of Customs Intelligence 1992 CLC 57. The Division Bench concluded that Bill of Lading indicates an upcountry destination via Karachi, then in that case the consignment cannot be detained at Karachi. However, if any misdeclaration or suspected contravention is discovered in respect of such consignments, the information is to be conveyed to the respective Collector of Customs or Deputy Collector of Customs, Incharge of Dry Port or the Directorate of Intelligence at the Dry Port.
16. ' Mr. S. Tariq Ali, learned Federal Counsel contended that it is not a case of misdeclaration but a case of smuggling of contraband goods. The traller was found in a plot in S.I.T.E. Area containing contraband or unpaid duty items. Thus, the provisions of section 2(s)(ii) is fully attracted, which defines smuggling. Therefore, he contended that the cases referred by the learned counsel for the applicants have no application to the present case. He also contended that this is not a case of en route checking, whereby an officer of Customs or Central Excise and Sales Tax not below the rank of Deputy Superintendent may on reasonable suspicion regarding substitution of goods by tempering seals while the conveyance is en route, check that rivets, locks, seals and labels of the transport unit are intact. Report of such re-checking required to be sent to Collector (Appraisement) by the concerned Collectorate. Mr. S. Tariq Ali, learned Federal Counsel is right in his submission. It is not a case of detention of msideclaration or violation of law at Custom Port or Station nor a case of en route checking of conveyance under para. 14 of Public Notice No,2 of 1996, dated 26-3-1996, called the Customs Transhipment of Imported Goods to Custom Ports Procedure, 1996.
17. ' Reverting to the first contention the submission of Mr. Sohail Muzafar, learned counsel for the applicants, was that in absence of any notification under section 4(1)(s) by the Provincial Government notifying "Police Station" for Customs, the entire proceedings emanating from the report, including inquiry conducted, proceedings taken or initiated are without jurisdiction. He supported his contention by referring case of Muhammad Nawaz v. The State PLD 1999 Lah. 18, wherein the learned Single Judge of Lahore High Court, after examining the provisions of sections 4(1)(s), 5(2), 154 and 156 of Code of Criminal Procedure concluded that the Director-General of Intelligence and Investigation has no power to declare its Region Office, Lahore headed by Director of Intelligence and Investigation as "police station". In absence of the notification under section 4(1)
(s) of the Code by appropriate Government establishing Police Station for Customs, no F.I.R. Under the provisions of section 154 of the Code of Criminal Procedure can be registered or got registered in the Directorate of Intelligence and Investigation and the same was struck down. The learned'
18. Judge made applicable the provisions of Criminal Procedure Code into the proceedings initiated on a report recorded under the Customs Act, 1969 by taking refuge of section 5(2) of the Code, with caption trial of offences against other law, which mandates that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provision, but subject to any enactment for the time being enforced, regulating, the manner of place of investigating, enquiring into, trying or otherwise dealing with such offences. (Emphasis underlined).
19. ' Perusal of the underlined provision of subsection (2) of section 5, Cr.P.C. Which excludes the applicability of provisions of the Code, to all enactments containing such provision regarding manner of investigation, inquiring into and dealing with such offence. It is now well-settled that where a statute has created a special offence and lays down a special procedure for investigation and trial of such offence, it is that procedure, that must be followed and not ordinary procedure (State v. Hamtho 1971 SCMR 686.
20. ' With utmost respect, I am unable to subscribe to the view taken by learned Judge. Perhaps the provisions of section 161 of Customs Act were not brought to the notice of the learned Judge. The Customs Act is a special enactment within the meaning of section 41 of Pakistan Penal Code, where the statute creates a special offence and lays down special procedure for investigation/inquiry as well as for trial of such offences and the special forum for trial then such procedure must be followed and not ordinary procedure and the Courts, except, Special Court established under the Act would have no jurisdiction in the matter of trial.
21. The question that requires determination is whether the Act contains the provisions regulating the procedure for investigating or inquiring into such offences. Sections 161, 162 and 163 of the Act contain the provisions in respect of procedure regulating report, arrest, seizure, search, inquiry, remand and submission of challan, whereas section 185-A pertains to taking of the cognizance in respect of offences under the Act by the Special Court.
22. ' It would be advantageous to place the provisions of the Act and the Code of Criminal Procedure in juxtaposition regulating the procedure for inquiry/investigation, including arrest, seizure, report, remand and submission of charge-sheet and cognizance of cases as follows:-- Customs Act, 1969 Section 161(1)Power of arrest.--- (1) Any Officer of Customs authorized in this behalf who has reason to believe that any person has committed an offence under this Act may arrest such person.
(2) Any person duly empowered for the prevention of smuggling who has reason to believe that any person who has committed offence of smuggling under this Act may arrest such person.
(3) Every person arrested under this Act shall be taken forthwith before the nearest office of Customs authorised by the Collectorate of Customs to deal with cases, or if there is no such officer of Customs within a reasonable distance, to the Officer-in-Charge of the nearest police station.Criminal Procedure Code Section 54, Cr.P.C.
23. When police may arrest without warrant.- -- (1) Any Police Officer may, without an order from a Magistrate and without a warrant, arrest: ' Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned.
24. ' Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking.
(4) When any person arrested under this Act is taken before an officer of Customs or the Officer-in-Charge of a police station, as required by subsection (3) or when such officer of customs or officer- in-Charge of a police station himself arrests any person under this Act, such officer or Officer-in-Charge shall, if the offence is bailable admit him to bail to appear before the Special Judge having jurisdiction or, if the offence is non- bailable, have him taken in custody to the Special Judge or, if there is no Special Judge within a reasonable distance, to the (nearest Judicial Magistrate) within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Special Judge or, as the case may, of such Magistrate.
(5) When any person is taken under subsection (4) before the Special Judge, he may, on the request of such person, after pursuing the record, if any, after giving the prosecution an opportunity of being heard, admit him to bail on his executing a bond, with or without sureties or refuse to admit him to bail and direct his detention at such place as he deems fit: ' Provided that nothing therein contained shall preclude the Special Judge from cancelling the bail of any such person at a subsequent stage if for any reason, he considers such cancellation necessary but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded, he considers that the affording of such opp9rtunity shall defeat, the purposes of this Act (6) When such person is taken under subsection (4) before a Magistrate, such Magistrate may, after authorizing his detention in such.
25. Custody, at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge,' Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government.
26. ' Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing.
27. ' Fifthly, any person who obstructs a Police Officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody.
28. ' Sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan.
29. ' Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed in Pakistan, would have been punishable as an offence and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody of Pakistan.
30. ' Eighthly, any released convicted committing a breach of any rule made under section 565, subsection (3); ' Ninthly, any person for whose arrest a requisition has been received from another Police Officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
31. Section 59, Cr.P.C.
32. "59. Arrest by private persons and procedure on such arrest.---
(1) Any private person may arrest any person who in his view commits a non- bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any direct his production before the Special Judge, on a date and time to be fixed by such Magistrate or direct such person to he forthwith taken to, and produced before, the Special Judge and he shall be so taken.
(7) Nothing in subsection (5) or subsection (6) shall preclude the Special Judge or the Magistrate from remanding any such person to the custody of the officer of customs or the Officer-in- Charge of a police station holding inquiry against that person if such officer makes a request in writing to that effect and the Special Judge or the Magistrate, after pursuing the record, if any, and hearing such person, is of the opinion that for the completion of inquiry or investigation it is necessary to make such an order, provided that in no case the period of such custody shall exceed fourteen days.
(8) When any person arrested under this Act is brought before an officer of customs or the Officer-in-Charge of a police station, as required by subsection
(3) or when such Officer of Customs or Officer-in-Charge of a police station himself arrests any person under this Act such officer, shall if he is an Officer of Customs, record the fact of arrest and other relevant particulars in the register mentioned in subsection (12) or, if he is an Officer-in-Charge of a police station, record such fact in the register ordinarily maintained by him, and shall immediately proceed to inquire into the charge against such person and if he completes the inquiry within twenty-four hours of his arrest, excluding the time necessary for journey as aforesaid, he may, after producing such person before the Special Judge or the nearest Judicial Magistrate make a request for his further detention in his custody.
(9) While holding an inquiry under subsection (8) the Officer of Customs shall exercise the same powers as are exercisable by an Officer-in-Charge of aperson so arrested to a Police Officer or, in the absence of a Police Officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 53, a Police Officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a Police Officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 57. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released."
33. Section 60, Cr.P.C.
34. Person arrested to be taken before Magistrate or Officer-inCharge of police station.--- A Police Officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the Officer-inCharge of a police station.
35. Section 61, Cr.P.C.
36. Persons arrested not to be detained more than twenty-four hours.--- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
37. Section 497, Cr . P. C .
38. When bail may be taken in case of non- bailable offence.---(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an Officer-inCharge of a police station, or police station under the Code of Criminal Procedure, 1898 (Act V of 1898), but such officer and the Officer-in-Charge of a police station shall exercise such powers subject to the foregoing provisions of this section while holding an inquiry under this Act.
(10) If the Officer of Customs or the Officer-in-Charge of a police station as the case may be, after holding an inquiry as aforesaid, is of the opinion, that there is no sufficient evidence or reasonable ground for suspicion against such person, he shall release him on his executing a bond, with or without sureties, as the officer may direct, to appear, as and when required, before the Special Judge may make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.
(11) The Special Judge to whom a report has been made under subsection ,(10) may, after the perusal of record of the inquiry and hearing the _ prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such person, proceed with his trial and direct the prosecution to produce evidence.
(12) The Officer of customs empowered to hold inquiry under this section shall maintain a register to be called "Register of Arrests and Detentions" in the prescribed form in which he shall enter the name and other particulars of every person arrested under this Act, together with the time and date of arrest, the details of the information received, the details of things, goods or documents recovered from his custody, the name of the witnesses and the explanation if any, given by him and the manner in which the inquiry has been conducted from day to day and such register or authenticated copies of its aforesaid entries shall be produced before the Special Judgeappears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: Circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the Officer-inCharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer-inCharge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for whenever such officer is so directed by him.
(13) After completing the inquiry the Officer of Customs shall submit to the Special Judge a report in the form and manner, as nearly as possible, in which the Officer-in-Charge of a police station submits a challan before a Court or if such inquiry has been conducted by an Officer-inCharge of a police station, he shall submit a challan before the Special judge.
(14) The Officer of Customs or as the case may be, the Officering-Charge of a police station shall immediately intimate the fact of the arrest of a person under subsection (1), (2) or (4) to the Special Judge who may direct such officer to produce that person at such time and place and on such date as the Special Judge considers expedient and such officer or Officer-in-Charge shall act accordingly.
(15) Any Magistrate of the first class may record any statement or confession during this Act, in accordance with the provisions of section 164 of the Code of Criminal Procedure, 1898 (Act V of 1898).
(16) Without prejudice to the foregoing provisions of this section, the Federal Government may, by notification in the official Gazette, authorize any other officer also to exercise the power and perform the functions of an officer of customs or Officer-in-Charge of a police station under this section, subject to such conditions, if any, that it may deem fit to impose.
39. Section 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 athe discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(5) Where the Officer-in-Charge of a police station forwards a report under subsection (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.
60. Person arrested to be taken before Magistrate or Officer-in-Charge of police station. ---A Police Officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the Officer-in-Charge of a police station.
40. Section 164, Cr.P.C.
41. Power to record statements and confessions.--- (1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a Police Officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
42. Section 103, Cr.P.C.
43. Search to be made in presence of witnesses.--- (1) Before making a search under this Chapter, the Officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. warrant to search for such goods, documents or things.
(2) Such warrant shall be executed in the same way, and will have the same effect, as a search warrant issued under the Code of Criminal Procedure, 1898.
44. Section 163. Power to search and arrest without warrant.--- (1) Whenever any officer of customs not below the rank of an Assistant Collector or Deputy 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 document 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 statements 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 or Deputy Collector of Customs, any officer of Customs or any(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or order person and signed by such witnesses but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend.--- The occupant of the place searched, or some person in his behalf, shall in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3) a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code.
45. ' Section 190, Cr.P.C.
46. Cognizance of offences by Magistrates.-- - (1) Except as hereinafter provided any District Magistrate or a Sub-Divisional Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of High Court may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any Police Officer;
(c) upon information received from any person other than a Police Officer, or upon 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 of warrant any premises to make an arrest under clause (a) or to seize any goods which are reasonably suspected to be intended for exportation contrary 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 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 specified in subsection (5), by subsection (4).
47. 185-A. Cognizance of offences by Special Judges.--- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, a Special Judge may within the limits of his jurisdiction,his own knowledge or suspicion, that such offence has been committed.
(2) The Provincial Government may empower any Magistrate to take cognizance under subsection (1), clause
(a) or clause (b) of offences for which he may try or send o the Court of Session for trial: ' Provided that in case of Judicial Magistrate, the Provincial Government shall exercise this power on the recommendation of the High Court.
(2) A Magistrate taking cognizance under subsection (1) of an offence tribal exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.
48. ' Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: ' Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released: ' Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the 'accused or any other person acting on his behalf, direct that any person shall be released on bail--
(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further, that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or take cognizance of any offence punishable under this Act---
(a) upon a report in writing made by an Officer of Customs or by an Officer-in- Charge or a police station or by any other officer especially authorized in this behalf by the Federal Government; or
(b) upon receiving a complaint or information of fact constituting such offence made or communicated by any person; or
(c) upon his own knowledge acquired during any proceedings before him under this Act or under the Prevention of Smuggling Act, 1977.
(2) Upon the receipt of report under clause (a) of subsection (1) the Special Judge shall proceed with the trial of the accused.
(3) Upon the receipt of a complaint or information under clause (b) or acquired in the manner referred to in clause (c) of subsection (1) the Special Judge may, before issuing a summon or warrant for appearance of the person complained against, hold a preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint or direct any Magistrate or any officer of customs or any Police Officer to hold such inquiry and submit a report, and such Magistrate or officer, shall conduct such inquiry and make report accordingly.
(4) If, after conducting such enquiry or after considering the report of such Magistrate or officer, the Special Judge is of the opinion that--
(a) there is no sufficient ground for proceeding, he may dismiss the complaint, or
(b) there is sufficient ground for proceeding, he may proceed against the person complained against in accordance with law.
(5) A Special Judge or .a Magistrate or an officer holding inquiry under subsection
(3) may hold such inquiry, as nearly as possible, in accordance with theimprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous ' criminal or involved in terrorism.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that he accused as committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.
167. Procedure when investigation cannot be completed in twenty-four hours.--- (1)
49. Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the Officer- in-Charge of the police station (or the Police Officer making the investigation if provisions of section 202 of the Code of Criminal Procedure, 1898. he is not below the rank of Sub-Inspector) shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or
(send) it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: ' Provided that no Magistrate of the third class, and no Magistrate the second class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reason for so doing.
160. Police officer's power to require attendance of witnesses.--- Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.
161. Examination of witnesses by police.--
(1) Any Police Officer making an investigation under this Chapter or any police officer not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer all questions relating to such case, put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The Police Officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records.
50. Section 169, Cr.P.C.
51. Release of accused when evidence deficient.--- If, upon an investigation under this Chapter, it appears to the Officer-inCharge of the police station or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial.
52. Section 154, Cr.P.C.
53. Information in cognizable cases --- Every information relating to the commission of a cognizable offence if given orally to an Officer-in-charge of a police-station, shall be reduced to writing by im or under his direction and be read over to the information; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.
54. Section 172, Cr.P.C.
55. Diary of proceedings in investigation.---
(1) Every police-officer, making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances Ascertained through his investigation.
56. Section 173, Cr.P.C.
57. Report of Police Officer. --- (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer-in-Charge of the police station shall, through the public prosecutor--- (a)forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the Perusal of the above-quoted provisions of the Customs Act and Cr.P.C. Would show that sections 161, 162, 163 and 185-A of the Customs Act contain similar provisions as contained in Code for regulating arrest, search, report, remand, enquiry, charge-sheet as well as taking of the cognizance in respect of offence under the Act. When a special enactment contains procedural provisions in respect of such matters, the provisions of Cr.P.C. In terms of section 5(2) would not be applicable.
58. For that purpose, the provisions for regulating manner of place of investigation, enquiring into or trying of such offences, as enumerated in the Customs Act to be followed. I am, therefore, of the view that non-notification of police station, in terms of section 4(1)(s) of the Code for Customs would not make the report or the enquiry conducted on the basis of such report, without jurisdiction in respect of offences emanating from Customs Act and subsection (12) of section 161 caters such eventuality, which provides that Officer of Customs empowered to hold enquiry, under this section shall maintain, register to be called Register of Arrest and Detention in the prescribed form in which he shall enter the name and other particulars of every person arrested, under this Act, together with date of arrest and detailed information received, details of goods or documents recovered from his custody, name of witnesses and explanation, if any, given by him and the manner in which enquiry has been conducted from day to day and such Register be produced before the Special Judge, whenever such Officer is so directed by him. Therefore, it is fallacious to canvass that in absence of notification of police station, the Customs Officer cannot investigate the matter. It may also be stated that reference to incharge of police station in absence of nearest Customs Officer in section 161 and for that matter report to Officer Incharge of police station in absence of nearest Customs Officer under section 192, will not make the establishment of police station a must in terms of section 4(1)(s) of the Code by' implication. It shall not be out of place to refer section 185-C of the Act, which makes the provisions of Code applicable only to the proceedings before Special Judge, so far, they are not inconsistent with the provisions of the Act.
59. The provision runs thus:- - "185-C. Provisions of Code of Criminal Procedure, 1898, to apply.--- The provisions of the Code of Criminal Procedure, 1898 (Act V of 1998), so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings of the Court of Session for the purposes of the said Code and the provision of Chapter XXII-A of the Code, so far as applicable and with the necessary modifications, shall apply to the trial of cases by the Special Judge under this Act.
(2) For the purposes of subsection (1), the Code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if any offence punishable under this -Act were one of the offences referred to in subsection (1) of section 337 of the Code."
60. I am, therefore, of the view that on above premises it cannot be canvassed on behalf of the applicants that their case requires further enquiry.
61. ' Mr. Sohail Muzaffar, learned counsel for the applicants to support his contention has also referred cases of Maritimes Security Agency, Karachi v. Muhammad Saleem Khan PLD 1994 SC 486 and State v. Bashir PLD 1997 SC 408. In the former case, the Lt.-Comdr. Zafar Iqbal, Deputy Director Fisheries addressed a complaint to S.H.O., Docks Police Station, Karachi, which was the basis of F.I.R.
62. Against the respondent and on the basis of such F.I.R. Proceedings were initiated, which were challenged through an application under section 561-A, Cr.P.C. In this Court, which was allowed on the ground that the initiation of a case on the report by a person, who was not a "Fishery Officer", as defined in S.R.O. Investigation and cognizance taken by D.M. Were illegal and continuation of proceedings in these circumstances were taken to be an abuse of the process of Court. Appeal was also dismissed. In the latter case the provisions of section 156(i), Cr.P.C. Was examined which pertains to direction to investigate offence conferred on any Officer-in-Charge of the police station having. Jurisdiction over the local area or any other person covered by said definition of the Officer-in-Charge of police station given in clause (p) of section 4 or in absence of Officer-in- Charge of police station, including Officer-in-Charge present at the station house, who is next Officer-in-Charge of police station and is above the rank of a constable or when the Provincial Government so directs any other Police Officer so present. The above provisions do not include C.I.A. Personnel. Therefore, it was held that they have no power to investigate a cognizable offence.
63. ' I am of the view that the cases referred to by the learned counsel for the applicants do not advance the contention raised as it is not disputed that the Customs Officer, as defined under section 3 of the Customs Act, is empowered to report. In respect of any offence under the Customs Act. Secondly, the Custom Act is a special enactment which has self-contained procedure regulating the investigation and trial. Therefore, these two cases are distinguishable on the facts.
64. ' Mr. Sohail Muzaffar, Advocate, further contended that the applicants Ch. Abid Saeed is neither importer nor agent but conceded that he was present at a wrong place at a wrong time and applicants Abid Raza and Malik Ali Asghar are no involved in any manner. They were simply employees. He further contended that the case against them at the maximum would be of misdeclaration, which offence is not punishable with sentence more than three years and or with fine. Therefore, they are entitled for the grant of bail. He also pointed out that the cigarette papers are not banned items and referred the Import Trade and Procedure Order, 2000 pertaining to the period in question, wherein cigarette paper has not been listed in negative list.
65. ' Mr. S. Tariq Ali, Federal Counsel contended that the cigarette papers can be imported subject to duty by manufactures only. The applicants who were found present with container on plot, containing items declared in the report and secondly the item seized are not only cigarette papers but other items which are contraband i,e, fridge, electrical items, aluminium foils, raw silk, fabrics.
66. T.V s. Bearings, split air-conditioner etc. As such this contention has no. Force.
67. ' Mrs. Naveen Merchant, learned counsel for the applicant in Special Criminal Bail Application No,30 of 2001 while adopting the arguments canvassed by Mr. Sohail Muzzafar, further contended that search is violation of provisions of sections 162 and 163 of the Customs Act, on the ground that Officer who conducted the search was not Assistant Collector of Customs. The permission as required in terms of section 162 from the Judicial Magistrate, was not obtained and the report under section 163 does not fulfil the statutory requirement. Thus, the search is vitiated and referred the case of Collector of Customs v. Muhammad Mehfooz PLD 1991 SC 630, wherein the provisions of sections 162 and 163 pertaining to search by the Custom Authorities affected as provided under the Code of Criminal Procedure. This requirement of issuance of search warrant by the Magistrate is dispensable under section 163 of the Act, which empowers the Assistant Collector of Customs or any other officer of like rank to make search without warrant if he was satisfied that there was a danger of removal of goods if search warrant was obtained and further he had to record such reasons. In the case referred search was found to be violative of the provision of section 163 on following observations:-- "Perusal of the statement of grounds clearly showed that the grounds for belief in support of danger as such were not mentioned specifically as was required under section 163 of the Customs .Act. This was a statutory requirement and there is legislative wisdom behind it which is to the effect that ordinarily a place was to be searched only after search warrant was obtained from the Magistrate as contemplated under section 162 of the Customs Act and only in extraordinary cases this section can be dispensed with as is permissible under section 163 of the Customs Act but then grounds were to be stated by the Custom Officer who was allowed this facility for his belief and decision in not obtaining search warrant. He must state the grounds which justified apprehension of danger of removal of the goods."
68. ' Learned Federal Counsel contended that the Custom Officer who has conducted the search was Khalid Mahmood, Assistant Director, Intelligence and Investigation (Customs, Excise and Taxation), Karachi and further contended that the statement under section 163 was recorded as there was danger that the above contraband goods may be removed therefrom before search under section 162 of the Customs Act could be affected after obtaining warrant.
69. ' I have perused the statement under section 163 as well as the Order No,CNO2(10)DGCLI ADMN/98/2295, dated 29-9-2001, of Directorate-General, Intelligence and Investigation (Customs and Excise), Government of Pakistan, Islamabad entrusting Mr. Khalid Mahmood with current charge of Director of Assistant Director w,e,f, 20-8-2001 for a period of three months or till the appointment of regular incumbent whichever is earlier. The search was conducted on 2-11-2001.
70. The reason has been stated, therefore, prima facie at the bail stage it cannot be said that Officer who had conducted raid was not an officer of the category enumerated in section 163.
71. Consequently, this contention has no force.
72. In the light of the above discussion, I am of the view that applicants Abid Raza in Special Criminal Bail No,30 of 2001, Ch. Abid Saeed in Special Criminal Bail No,31 of 2001 and Malik Ali Asghar in Special Criminal Bail No, 32 of 2001 have no case for bail as there exists no reasonable grounds to believe that they have not committed the offence charged. Consequently, their bail applications are rejected.
73. ' So far as the applicant Abdullah in Special Criminal Bail No,33 of 2001, he is simple driver of the trailer, which was carrying the container in absence of any evidence in respect of his complicity with other co-accused, I am of the view that his case requires further inquiry. Consequently, he is granted bail in the sum of Rs,1, 00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.