TASSADUQ HUSSAIN, JILANI, J.---This judgment shall dispose of the following cases:--
(1) Intra-Court Appeal No,440 of 1998; (2) Intra-Court Appeal No,439 of 1998; (3) Criminal Miscellaneous No,168-Q/99; (4) Criminal Miscellaneous No, 188-Q of 2000; (5) Writ Petition No,6741 of 2002; (6) Writ Petition No,6742 of 2002; (7) Writ Petition No,6743 of 2002; (8) Writ Petition No,6744 of 2002; (9) Writ Petition No,6745 of 2002; (10) Writ Petition No,6746 of 2002; (11) Writ Petition No,15463 of 1999; (12) Writ Petition No,6676 of 1998; (13) Writ Petition No, 18099 of 1998; (14) Writ Petition No,12490 of 1998; (15) Writ Petition No,19398 of 2000; (16) Writ Petition No,22010 of 2000; (17)
Writ Petition No,12647 of 2000; (18) Writ Petition ,No,12933 of 2000; (19) Writ Petition No,14712 of 1999;
(20) Writ Petition No,1875 of 1999; (21) Writ Petition No,2467 of 1999; (22) Writ Petition No,2415 of 1999;
(23) Writ Petition No,6850 of 2000; (24) Writ Petition No,2950 of 1999; (25) Writ Petition No,6675 of 1998; (26) Writ Petition No, 4161 of 2000; (27) Criminal Revision No,924/2000; (28) Criminal Revision No,927 of 2000; and (29) Criminal Revision No,928 of 2000.
2. Through Appeals Nos.439 and 440 of 1998, the judgment, dated 21-5-1998 passed by a learned Judge in Chamber in Writ Petition Nos.4279 of 1998 and 6734 of 1998 has been challenged vide which the learned Judge was pleased to quash the case registered by the Customs Department vide F.I.R. No,6 of 1998, dated 3-2-1998 under sections 156(1)(8)(14)(81)(82)(85) and section 178 of the Customs Act, 1969. In the remaining Constitutional Petitions, referred to in para. 1 of this order, petitioners have sought similar relief which was allowed by the learned Judge-in-Chamber in judgment under appeal (W.P. No,4279 of 1999 and W.P. No,6734 of 1999) i,e, quashment of various F.I.Rs, registered against petitioners in each Constitutional petition. Criminal Revisions Nos.924, 927 and 928 of 2000 are directed against the orders passed by the concerned trial Courts whereby the applications moved by the accused under section 265-K, Cr.P.C. Were dismissed. The grounds in all these petitions are similar to the one which have been raised in the afore-referred Constitutional petitions. Their learned counsel did not appear despite three opportunities given. The petitioners were, therefore, proceeded ex parte. However, questions raised in the petitions are being decided on merit.
3. Appellants in Intra-Court Appeals Nos.439 of 1998 and 440 of 1998 are the Customs Department.
In support of these appeals learned counsel for. The Customs Department (Mr. A. Karim Malik, Advocate) has submitted as under:--
(i) That the Customs Act and the Rules framed thereunder are a special law, it empowers the officers concerned to proceed against the delinquents for having violated the special law. The powers inter alia include the .Power to arrest, to have a case registered, to investigate, to confiscate and to adjudicate.
(ii) That the impugned judgment, insofar as it has quashed the criminal case registered under the Customs Act and declares that the Customs Officers have no jurisdiction to investigate and proceed in terms of the Customs Act and the Rules framed thereunder, is not tenable in law.
(iii) That even if there was some irregularity in the registration of S criminal case or during investigation, which ensued thereafter, the accused against whom credible information was available, could not seek quashment of criminal proceedings under the Customs Act.
(iv) That since the judgment impugned in I.C.As. Nos. 439 and 440 of 1998 is not a correct exposition of law, the petitioners in the Constitutional Petitions, referred to in para. 1 above cannot claim similar relief.
4. Learned counsel for the respondents in I.C.As. Nos.439 and 440 of 1998 (Dr. Abdul Basit, Advocate), who is also counsel in the Constitutional Petitions referred to in para. 1 above, while defending the impugned judgment in the afore-mentioned I.C.A. And pleading the case of petitioners in the writ petitions, contended as under:--
(i) That in terms of Article 97 of the Constitution of Islamic Republic of Pakistan, 1973, no Federal Legislative measure can be taken on a residual matter which is the exclusive preserve of the legislative jurisdiction of the Provincial Legislature.
(ii) That no provision of the Code of Criminal Procedure can be nullified by the Customs Act.
(iii) That a "Police Station" is established by the Provincial Government and an F.I.R. Can only be registered in the said Police Station. The F.I.Rs, registered by the Customs Department, therefore, have no backing in law.
(iv) That in terms of section 3 of the Customs Act, 1969, only the Central Board of Revenue can appoint a Custom Officer in the area specified in the order/notification and any other Officer of the said Department, who has not been so notified, cannot be treated as an Officer of the Customs Department for purposes of the afore-referred section.
(v) That there is no provision in section 161 of the Customs Act for the establishment of a Police Station and the assumption of jurisdiction in this behalf by the Customs Department or any officer there under, is not tenable in law.
5. Mr. Ehsanullah Cheema, Advocate/learned counsel for the petitioner in W.P. No,2415 of 1999 (F.I.R.
No,2 of 1999, dated 25-1-1998) submitted that the samples of the alleged chemical were taken and tested in the absence of the petitioner and any report received would be arbitrary. Petitioner challenged the said report, the Adjudicating Authority directed fresh samples to be taken and tested and in terms of second report of the chemical laboratory, dated 24-9-1999 it was confirmed that the goods were Amoxycilin and not Cephalexin Hydrate. The Adjudicating Authority, in the light of the said report, set aside the earlier fording, the F.I.R. Impugned in the said petition, therefore, has no basis for any further criminal proceedings to be taken against the petitioner.
6. Learned counsel for the petitioners in Writ Petitions Nos.6741 of 2002 to 6746 of 2002 (Messrs Imtiaz Rashid Siddiqui and Imran Anjum Alvi, Advocates), arising out of the criminal cases registered under the Sales Tax Act), in support of these petitions submitted as under:--
(i) That no authority under the Sales Tax Act has power to declare any pike as a "Police Station" or to register an F.I.R under the Act.
(ii) That the Sales Tax Officer, in terms of section 370-B(10) of the Sales Tax Act, can hold an inquiry and is mandated to maintain a register to be called the 'Register of arrest and detention' only in terms of the prescribed form. The word 'prescribed' in terms of subsection (2) of section 22 of the said Act means prescribed by Rules made under this Act and as no Rules have been framed, any action taken by the Sales Tax Officer in terms of the afore-referred provision is without lawful authority.
(iii) That the entire tax liability has been paid, no criminal act is made out and criminal proceedings initiated pursuant to the F.I.R. Impugned in the petitions, are not tenable in law.
7. Learned counsel for the Sales Tax Department (Mian Qamaruddin Ahmad, Advocate), while defending the proceedings initiated by the Department which, in the afore-referred writ petitions, submitted as under--
(i) That the F.I.Rs, can be registered by the Department in terms of section 37 of the Sales Tax Act.
(ii) That it may not be an F.I.R. Of the kind stipulated in terms of section 154 of the Cr.P.C. But it is a statement of allegations on the basis of which criminal prosecution can be launched.
(iii) That the Register of arrests and detention is being maintained by the Department in terms of section 37-B(10) of the Sales Tax Act and no exception can be taken to it.
8. We have heard learned counsel for the parties, have gone through the precedent case-law and have given anxious consideration to the submissions made at the bar.
9. , The judgment of this Court (Muhammad Nawaz and another v. The State and 2 others PLD 1999 Lahore 18), which has been impugned in I.C.A. No,440 of 1998 and I.C.A. No,439 of 1998) is based on a premise that a person can be arrested only pursuant to a case registered under section 154, Cr.P.C. At a place notified as a Police Station by the Provincial Government under section 4(1)(s) of the Cr.P.C. And since no Police Station has been established under the Customs Act, the cases registered under the Customs Act at places other than the afore-referred Police Stations were without lawful authority and of no consequences. It was further held that the order/letter, dated 5- 3-1994 issued by the Directorate of Intelligence and Investigation (Customs and Excise) with respect to the receiving of complaints and issuance of F.I.Rs, in the prescribed form and maintaining the register of arrest and detention has no legal basis and, therefore, it could not be classified as an "enactment" within the meaning of section 5(2) of the Cr. P. C .
10. Before dilating on the merit of the afore-referred findings rendered it is imperative to bear in mind that although the Code! Of Criminal Procedure is meant primarily to regulate the investigation, inquiry and trial under the Pakistan Penal Code (in terms of section 5(1) of the Cr.P.C.) but it stipulates an exception in terms of subsection (2) of section 5 of the Cr.P.C. Which reads as under:-- "5(2).Trial of offences against other law.--All offences, under any other law shall be investigated enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences."
The mandate of the provision to which reference has been made above is that persons who are proceeded against under special law shall be dealt with and their cases inquired into, investigated and tried according to the procedure laid down in the said special law. There could be situations where an enactment provides a special procedure only for some matters. Obviously those matters would be dealt with according to the procedure laid down in the said Special Law. But where the Special Law is silent, the provisions of ' the Code of Criminal Procedure shall apply. A bare reading of various provisions of the Customs Act and the Sales Tax Act, 1990 would indicate that there are specific provisions for arrest, detention, inquiry, investigation, bail and trial of the persons who are to be proceeded against. For a comparative study a chart of the relevant provisions in the Customs Act, Sales Tax Act and the Criminal Procedure Code is given as under: Customs Act, 1969 Sales Tax Act, 1990 Cr.P.C.
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 officer 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.
(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 stationSection 37-A. Power to arrest and prosecute.-- (1).An Officer of Sales Tax, not below the rank of an Assistant Collector of Sales Tax or any other officer of equal rank authorized by the Central Board of Revenue in this behalf, who on the basis of material evidence has reason to believe that any person has committed a tax fraud in respect of a 'supply or supplies made by him, may arrest such person.
(2) All arrests made under this Act shall be carried out in accordance with the relevant provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).
(3) Where any person commits a tax fraud, he shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to any amount equal to the loss of tax involved, or with both.
(4) Notwithstanding any- thing contained in subsection (1) to subsection (3) or any other provision of this Act, whereSection 54.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; Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; Thirdly, any person, who has been proclaimed as an Offender either under this Code or by order of the Provincial Government; Fourthly, any person in whose possession anything is found which may reasonably be suspected of having committed an offence with reference to such thing; 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 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 be, 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 perusing 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 herein 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 theany person has.Committed a tax fraud, the Collector may; either before or after the institution of any proceedings for recovery of tax, compound the offence if such person pays the amount of tax due alongwith such additional tax and penalty as is determined under the provisions of this Act.
(5) Where the person suspected of tax fraud is a company, every director or officer of that company whom the authorized officer has reason to believe is personally responsible for actions of the company contributing the tax fraud shall be liable to arrest; provided that any arrest under this subsection shall hot absolve the company from the liabilities of payment of tax, additional tax and penalty imposed under ails Act.
37-B Procedure to be followed on arrest of a person.-(1) When a Sales Tax Officer authorized in this behalf arrests a person under section 37A he shall immediately intimate the fact of the arrest of that person 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 shall act accordingly.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; Sixthly, any person reasonably suspected of being a deserter from the Armed-Forces of Pakistan; 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 in Pakistan; 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. affording of such opportunity shall defeat the purposes of this Act.
Nothing in subsection (5) of 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) Whenever 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 particular 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(2) Notwithstanding any- thing contained in the subsection (1), any person arrested under this Act shall be produced before 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 be, of such Magistrate.
(3) When any. Person is produced under subsection (2) before the Special Judge, he may, on the request of such person, after perusing the record, if any, and 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 herein 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 suchSection 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 person so arrested to a police officer or, in the absence of a police officer, take such person or cause him to be taken to the nearest police station.
(2) If there is a reason to believe that such person comes under the provisions of section 53, a police officer shall re- arrest him.
(3) If there is a reason to believe that he No committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or give a name or residence which such officer has reason to believe to be false, he shall be dealt with under, the provisions of section 5. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Section 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 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 custom shall exercise the same powers as are exercisable by an officer in charge of a police station under the Code of Criminal Procedure, 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 of 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 Specialopportunity shall defeat the purposes of this Act.
(4) When such person is produced under subsection (2) before a Judicial Magistrate, such Magistrate may, after authorizing his detention in such custody at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge, direct his production before the special Judge on a date and time to be fixed by him or direct such person to be forthwith taken to, and produced before the Special Judge and he shall be so taken.
(5) Nothing in subsection
(3) or subsection (4) shall preclude the Special Judge or the judicial Magistrate from remanding any such person to the custody of the Sales Tax Officer holding inquiry against that person if such officer makes a request in writing to that effect, and the Special Judge or the Judicial Magistrate, after perusing 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 order: Provided that in no case the period of such custody shall exceed fourteen days.
(6) When any person is arrested under this Act, the Sales Tax Officer shallprovisions herein contained as to bail, taken or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer incharge of a Police Station.
Section 61. Person 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 in 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.
Section 497.When bail may be taken in case of non- bailable offence.-(1).When any person accused of non-bailable offence is arrested or detained without by an officer in charge of a police station, or appears 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: Provided that the Court may direct that any person 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 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 Special Judge whenever such officer is so directed.record the fact of arrest and other 'relevant particulars in the register specified in subsection (10) 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.
(7) While holding an inquiry under subsection (6), the Sales Tax Officer shall exercise the same powers as are exercisable by an officer in charge of a police station under the Code of Criminal Procedure, 1898 (Act V of 1898), but such Officer shall exercise singi powers subject to the foregoing provisions of this section while holding an inquiry under this Act.
(8) If the Sales Tax Officer, 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 and shall direct such person to appear, as and when required, before the Special Judge, and make aunder the age of sixteen years or any woman ,or any sick, or infirm person accused or 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."
(13) After completing the inquiry the officer of customs shall submit to the Special Judge a report in. The form manner, as early 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 in charge 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 officer in 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.
(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).report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.
(9) The Special Judge to 11 whom a report has been made under subsection
(8) 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.
(10) The Sales Tax Officer empowered to hold inquiry under this section shall maintain a register to be called "Register of Arrests 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 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 Judge, whenever such Officer is so directed by him. (11) After completing the inquiry, the Sales Tax Officer shall, as early as possible, submit to the Special Judge a complaint in the same form and manner in which the officer in charge of a police station submits a report before a Court.
(12) Any Magistrate of the First Class may record any statement or confession during inquiry under this Act, in accordance with the provisions of section 164 of the Code of Criminal Procedure. 1898 (Act V of 1898).
(13) Without prejudice to the foregoing provisions of this section, the Federal Government may, by notification in the official Gazette, authorize any other officer working under the Central Board of Revenue to exercise the powers and perform the functions of a Sales Tax Officer under this section, subject to such conditions, if any, that it may deem fit to impose."
11. A perusal of the afore-referred chart would indicate that under section 161 of the Customs Act and section 37-A of the Sales Tax Act an appropriate/concerned officer under the respective Act can arrest a person, in circumstances and for a limited period prescribed in the relevant provisions of the said law, without registration of a formal F.I.R. Even under the Criminal Procedure Code there are situations/circumstances where the police officer can arrest a person in circumstances given in the relevant provision without registration of a formal F.I.R. (for 24 hours only). After the arrest, however, both, under the Special Laws and under the Criminal Procedure Code, the person arrested has to be dealt with strictly in terms of the relevant provisions of the afore-referred Special Act or the Criminal Procedure Code i,e, he has to be produced before a Magistrate, if a case has been registered, can be kept in custody/physical remand for a certain period through a judicial order, then he has to be sent to judicial lock-up and after due investigation if there is no material justifying further detention or trial he has to be set free in terms of section 161(10) of the Customs Act and section 37-B(8)(9) of the Sales Tax Act. The provisions for release/discharge of persons under the Criminal Procedure Code are provided in sections 63 and 169 of the said Code. If the accused is to be tried a report is submitted before the Special Judge in terms of section 161(13) of the Customs Act or section 37-B(13) of the Sales Tax Act. But a person arrested cannot be kept in custody beyond the limited period of 24 hours without a judicial order and without registration of a formal F.I.R. The case registered is investigated and, if there is credible material justifying trial, a report is submitted under section 173, Cr.P.C. Before the trial Court accordingly.
12. As discussed in the preceding paragraphs the registration of an F.I.R., unless so prescribed in law, is not sine qua non for arresting a person. The concept of a "police station" in terms of section 4(s) of the Cr.P.C. And the registration of F.I.R. Under section 154, Cr.P.C. Would be relevant to offences under all laws unless, of course, a different procedure is laid down in any Special Law regarding arrest or registration of a case or report regarding an offence. An F.I.R. Of a cognizable offence under the Customs Act can be registered even at an ordinary Police Station but thereafter the investigation has to be carried out by the Customs Officer under the Customs Act. Reports regarding offences can be lodged and Registers of arrest and detention can be maintained by the officers under the afore-referred Special Laws. The reports which are registered by the concerned Departments under the Customs Act or the Sales Tax Act are the first reports with regard to offences under these laws, and in this regard certain officers have been authorized by the Central Board of Revenue through a notification. These reports are not F.I.Rs, which are registered at the Police Stations. These are reports in the generic sense. These reports are neither conclusive nor an indictment and no prejudice is caused. These are merely the first steps which set the machinery of law in motion. On account of the nature of the exercise which the Officers under the Customs Act have to carry out to check smuggling .In the entire length and breadth of the country it has been provided under the Customs Act that a person so arrested under the Special Law is to be brought to the "nearest officer of Customs authorized by the Collect orate of Customs" or, "if there is no such officer of Customs within a reasonable distance, to the officer in charge of the nearest police station". (Section 61(3) of the Customs Act). With minor variations and application of provisions of Cr.P.C. Qua arrest, almost similar provisions have been laid down in the Sales Tax Act 1990. Both provide for maintaining of a Register. Of Arrest and Detention. The Central Board of Revenue has been authorized under section 3 read with section 4 of the Customs Act to notify such officers to "exercise such powers and discharge such duties" as are specified in the notification to be issued.
In exercise of those powers, the CBR from time to time, through Notifications/SROs, has been authorizing various officers of the Customs Department and the Directorate of Intelligence and Investigation (Customs and Excise), of the Pakistan Army, of the West Pakistan Rangers and of the Pakistan Navy, to exercise powers and discharge duties under the Customs Act. SRO.388(I)82 dated 22nd April, 1982 was a Notification issued by the CBR under the afore-referred provisions. It reads as under:-- "APPOINTMENT OF OFFICERS OF THE DIRECTORATE OF INTELLIGENCE AND INVESTIGATION (CUSTOMS AND EXCISE) TO DISCHARGE THE DUTIES OF CUSTOMS OFFICER Notification No, S.RO. 338(1)/82, dated 22nd April, 1982.--In exercise of the powers conferred by sections 3 and 4 of the Customs Act, 1969 (IV a 1969), and the supersession of its Notification No,S.R.O. 413(1)/73 dated the 21st March, 1973, the Central Board of Revenue is pleased to authorize the officers of the Directorate of Intelligence and Investigation (Customs and Excise) specified, in column (2) of the table below to exercise the powers and discharge the duties of the officers of the customs under the provisions of the said Act specified in column (3) of the said table within the area of their respective jurisdiction.
S. No.Officers Provisions of the Customs Act, 1969
1. Intelligence Officers Sections 48, 62, 91, 92, 139, 158, 159, 160, 161, 162, 164, 165, 166, 167, 168(1)
(3) and (4), 171, 175, 198, 199.
2. Senior Intelligence Officers Sections 26, 48 62, 91, 92, 139, 158, 159, 160, 161, 162, 164, 165, 166 167, 168(1)(3) and (4), 171, 175, 198, 199.
3. Principal Appraisers and Appraisers of Intelligence and Investigation (Customs and Excise).Sections 26, 48, 60, 62, 91, 92, 139 158, 159, 160, 161, 162, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198, 199
4. Superintendents of Intelligence and Investigation (Customs and Excise).Sections 26, 48, 60, 62, 91, 92, 139, 158, 159, 160, 161, 162, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198, 199.
5. Assistant Director of Intelligence and Investigation (Customs and Excise).Sections 26, 48, 60, 62, 91, 92, 139, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198, 199.
6. Deputy-Director of ' Intelligence and Investigation (Customs and Excise).Sections 26, 48, 60, 91, 92, 139, 157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198, 199.
7. Director of Intelligence and Investigation (Customs and Excise).Sections 26, 48, 60, 91, 92, 139, 157(2), 158, 159, 160, 161, 162, 163, 164,
165. 166, 167, 168(1)(3) and (4), 171, 174, 175, 198, 199.
8. Director-General of Intelligence and Investigation (Customs and Excise).Sections 26, 48, 60, 91, 92, 139, 157(2), 158, 159, 160, 161. 162, 163, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198, 199.
13. The criminal case vide F.I.R No,6 of 1998 was registered by the said Directorate at Lahore on the complaint of Superintendent, Customs and Intelligence who was officer authorized in terms of the Notification quoted above. There was, therefore, no illegality in the registration of case under the Customs Act and the order of the Directorate of Intelligence and Investigation (Customs and Excise), dated 5-3-1994 which was issued under S.R.O. 388(1)/82 dated 22nd April, 1982 could not have been declared to have been issued without lawful authority or without any backing of law.
Similarly, under the Sales Tax Act, any Officer of Sales Tax not below the rank of an Assistant Collector of Sales Tax or any officer of equal rank authorized by the Central Board of Revenue (section 37-A) can arrest a person for an offence under the said Act. The learned Judge, we may observe with respect, was not properly assisted and a settled principle of law that the cases under the Special Law have to be dealt with investigated and tried under the special procedure laid down therein was overlooked. The law laid down in The State v. Hamtho (1971 SCM R 686) appears to have skipped the attention of the said Court wherein at page 687 it was held that "it is now well settled that where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure".
Furthermore even if there was some irregularity at the investigation stage, the same could not affect thejurisdiction of the Special Court. In this regard the ratio laid down in Noorul Islam v. The State (1986 SCM R 1836) was not brought to the notice of the said learned Judge wherein it was held as under:--- "Suffice it to say that the proposition of law is well settled that an illegality committed in the course of investigation, does not affect the competence and the jurisdiction of the Court. The fact that the learned trial Court had the requisite jurisdiction in the matter was not disputed by the learned counsel.",
14. So far as the argument of the learned counsel for the petitioners that the Federal Government cannot legislate on subjects, which are the exclusive domain of the Provincial Government, is concerned, suffice it to say, that in terms of Article 70 read with 4th Schedule of the Constitution of Islamic Republic of Pakistan, Criminal law falls in the Concurrent List. The provisions of Customs Act and the Sales Act under consideration are relatable to enforcement of criminal law dimension of these Special Laws.
15. A word about W.P. No,2415 of 1999. The argument of petitioner's learned counsel in W.P. No,2415 of 1999 that the second report of the Chemical Laboratory, dated 24-9-1999 belied the prosecution case may have substance but being a question of fact it would be for the trial Court to compare the two reports at appropriate stage. The petitioner has a remedy to file a fresh application under section 265-K, Cr.P.C. As well.
16. For what has been discussed above, Intra-Court Appeals Nos.440 of 1998 and 439 of 1998 are allowed and the impugned judgment is set aside. Criminal Miscellaneous 168-Q of 1999, 188Q of 2000, W.P. No,6741 of 2002, W.P. No,6742 of 2002, W.P. No,6743 of 2002, W.P. No,6744 of 2002, W.P.
No,6745 of 2002, W.P. No,6746 of 2002, W.P. No,15463 of 1999, W.P. No,6676 of 1998, W.P. No,18099 of'1998, W.P. No,12490 of 1998, W.P. No,19398 of 2000, W.P. No,22010 of 2000, W.P. No,12647 of 2000, W.P.
No,12933 of 2000, W.P. No,14712 of 1999, W.P. No,1875 of 1999, W.P. No,2467 of 1999, W.P. No,2415 of 1999, W.P. No,6850 of 2000, W.P. No, 2950 of 1999, W.P. No, 6675 of 1998, W.P. No,4161 of 2000, Criminal Revision No,924 of 2002, Criminal Revision No,927 of 2000 and Criminal Revision No,928 of 2000 are dismissed. As the investigations/trials in the afore-referred cases were stayed on account of the pendency of these petitions, a copy of the judgment shall be sent to the Chairman, Central Board of Revenue, Government of Pakistan, Islamabad for information and necessary action at his end.