DOST MUHAMMAD KHAN, J.----This judgment shall also decide connected Writ Petition No.504 of 2002 and Writ Petition No. 134 of 2002 because not only identical questions of law are involved but also for the reason that these have been filed against one and the same judgment.
2. As questions purely of law involved herein, therefore, we would avoid to discuss the evidence, facts and merits of the case unless found necessary.
3. Briefly the story of the prosecution case is that on a. Tip of, Saifur Rehman's, Inspector Customs Mobile Squad No.1, Peshawar P.W.1 on 16-5-1999 at 19-00 hours near F.G. College, Peshawar Cantt: stopped a van Registration No.B-1705 N.-W.F.P., Peshawar driven by Hafeezullah, driver in the company of Zafar Iqbal, petitioner of Writ Petition No.504 of 2002. On searching the same, 6 sealed boxes were found in it, therefore, both the persons alongwith the van were taken to the Customs Office situated in Railway Station Peshawar Cantt. Where on opening the said boxes antiques of different kinds were found therein, therefore, both the above persons were arrested there and then whereafter the case was registered under sections 156(1)/(89), 157, 164, 167 and 178 of the Customs Act, 1969 read with sections 26 and 27 of the Antiquities Control Act, 1975 and section 3(l) of the Imports and Exports Control Act, 1950.
4. Ayub Nawaz accused-petitioner was also arrested on the same night whereafter the principal accused Muhammad Nawaz was arrested too on the same night. All of them were examined there and then and their statements were recorded. Muhammad Farooq Afridi accused-petitioner of the instant petition and other co-accused were arrested at different successive stages of the investigation/enquiry while Akhlaq Ahmad acquitted accused then posted Deputy Collector Customs, Peshawar who also supervised investigation on the night of occurrence was later on arrayed as an accused.
5. The petitioner Muhammad Farooq Afridi at the relevant time was posted as Inspector Customs at Peshawar Airport while Ayub Nawaz accused-petitioner was attached to the Airport as Manager Security of P.I.A. Petitioner Zafar Iqbal, the inmate of the van was serving as a Security Guard in P.I.A.
The rest of the accused both convicted and acquitted excluding Muhammad Nawaz, the principal accused were also posted in one or the other department at different posts at the relevant time, however, Muhammad Nawaz aforesaid was running an agency of air travel at Peshawar.
6. Both the learned Judges of the trial Court and that of the appeal Court have recorded the conviction of the accused --petitioners mainly on the basis of their statements recorded by the Customs Officers, namely, Saifur Rehman's and Atta Muhammad, therefore, we are confronted with law points as to whether these statements were valid and legally an admissible evidence against them or not.
7. Barrister Zahoorul Haq, learned counsel for petitioner Muhammad Farooq Afridi placed before us 3 law points which are enumerated below:-- (i)The conviction of the petitioner has been based on the statement of co-- accused recorded by Custom Officer which is- inadmissible under the law.
(ii)That both the learned Courts have misapplied or not applied the correct law on the question of admissibility of such statement, therefore, the conviction of the petitioner is a nullity in the eye of law.
(i.e)That even the said statements were not legally proved at the trial and the same were also not put to the accused-- petitioner when was examined under section 342, Cr.P.C., therefore, his conviction is entirely illegal and unsustainable.
8. Mr. Abdul Samad Khan, learned counsel for petitioner Ayub Nawaz in Writ Petition No. 134 of 2002 although adopted the arguments advanced by Barrister Zahoorul Haq, however, he added that on the evidence on record the offence of abetment to smuggle the recovered items out of Pakistan is not made out, therefore, on this legal ground too the conviction and sentence of the petitioner cannot be maintained.
9. Mr. Shakil Ahmad, learned counsel for the petitioner Zafar Iqbal in Writ Petition No.504 of 2002 adopted the arguments of Barrister Zahoorul Haq.
10. The learned Judge of the Appeal Court while relying on the judgment of the Indian Supreme Court in the case of Sony Valabd has AIR 1965 SC page 481 held that the statements recorded by the Custom Officer is an admissible and legal evidence, therefore, while using it against accused-- petitioners confirmed their conviction and sentences awarded to them by the learned trial Judge who also entertained same and similar view on the above law point.
11. The above judgment of the Indian Supreme Court does not enunciate the said principle of law because the same is based on the principle of law enunciated by the Indian Supreme Court in the case of "The State of Punjab v. Barkat Ram" AIR 1962 SC page 276.
12. In the latter case the Indian Supreme Court while interpreting section 171-A of the Indian Sea Custom Act held that statement of accused recorded thereunder is an admissible evidence and can be used for conviction.
13. Although there was no cavil amongst the learned counsel for the defence and the State that corresponding provision to section 171-A of the Indian Sea Custom Act is the provision of section 165 of Pakistan Customs Act, 1969 but on perusal of the law on the subject we find that in fact the corresponding provision in our Act is the provision of sections 166 and not 165, however, in view of the established facts on record of this case without fear of rebuttal the provision of section 165 of the Pakistan Customs Act, 1969 is applicable to the instant case.
14. For the proper construction and study of all the 3 provisions, therefore, these are reproduced below:-- INDIAN SEA CUSTOM ACT SECTION 171-A, POWER OF OFFICERS OF CUSTOM TO SUMMON PERSONS TO GIVE EVIDENCE AND PRODUCE DOCUMENTS (i)Any officer of Customs duly employed in the prevention of smuggling shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of any goods.
(ii)A summon to produce document or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or control of the person summoned.
(i.e)All persons so summoned shall be bound to attend either in person or by authorized agent as such officer may direct and all persons so summoned are bound to state the truth on any subject respecting which they are examined or makes statements and to produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure 1908 shall be applicable to any requisition for attendance under this section.
(iv)Every such enquiry as aforesaid shall be deemed to be a judicial proceedings within the meaning of section 193 and section 228 of the Indian Penal Code."
The provision of section 165 of Pakistan Customs Act reads as thus:-- SECTION 165, POWER TO EXAMINE PERSON.
(i)The appropriate officer may during the course of any enquiry in connection with the smuggling of any goods:-- (a)Require any person to produce or deliver any document or thing to such officer; (b)examine any person acquainted with the facts and circumstances of the case.
(ii)The appropriate officer shall exercise the powers in subsection (1) only in relation to a person who is readily available or present before him and shall be subject to the same provisions as an Officer Incharge of a police station is subject to under the Code of Criminal Procedure, 1898 (Act V of 1898) when investigating a cognizable offence.
PAKISTAN CUSTOMS ACT SECTION 166. POWER TO SUMMON PERSONS TO GIVE EVIDENCE ANDPRODUCE DOCUMENTS OR THINGS.
(1)Any gazetted officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of any goods.
(2)A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3)All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statement and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to any requisition for attendance under this section.
(4)Every such inquiry as aforesaid shall be deemed to be judicial proceeding within the meaning of section 193 and section 228 of the Pakistan Penal Code (Act XLV of 1860).
On plain reading of the above provisions of two different enactments, we do not bear any stress or strain on our mind nor entertain any difficulty to hold that although the provisions of section 171-A of the Indian Sea Custom Act are pari materia to the provision of section 166 of the Pakistan Customs Act in material particulars subject to some distinctive features but in view of the facts of the present case, we are firm in our view that the provision of section 165 of the Pakistan Customs Act is certainly applicable to the instant case. For brevity purpose the Indian and Pakistani provision of law would be referred to hereinafter as the former and latter provision. There are several reasons to draw the above distinction which may be stated epitomestically hereinbelow:-- (i)The officer empowered under section 166 to summon a person to give evidence or to produce a document or other thing must be a gazetted officer of the Custom which the Custom Inspector is not at all.
(ii)That the appropriate officer mentioned in section 165 is definitely a different entity like the Custom Officer who intercepted the van, made the seizure, effected the arrest and recorded the statement of the 4 accused and in no case he is a gazetted officer.
(i.e)That under section 165 the appropriate officer can only require a person to produce or deliver any document or thing to him or to examine any person but subject to the provisions of subsection
(2) these powers he can exercise only and only in respect of such person who is readily available or present before him thus the sharp and visible distinction between the two provisions is of great significance.
15. The exceptional powers conferred upon the gazetted officer under section 166 are individualistic and have definite bounds under the said provision which are exclusive in nature and character, therefore, we are of the view that the provision of section 166 relates to altogether different situation and objects is not attracted to the facts of the instant case.
16. After holding the above view, now let us find the distinction, if any, in between the former provision (Indian Act) and the latter provision (section 165).
17. Under the former provision, the person to be examined is under legal duty to state truth otherwise he would render himself liable to criminal prosecution under section 193 of the Indian Penal Code which is not the case of a person when examined under section 165 of the latter provision. Moreover, unlike the latter provision, the provision of subsection (4) of the Indian enactment has classified the proceedings under it as judicial proceedings taking it out of the pale of administrative phase and elevating it to the judicial phase. Again the provision of subsection (2) of section 165 of the latter law has given to the appropriate officer a status at par to that of the Officer Incharge of a police station giving him the same privileges and has brought him under the same statutory restrictions and limitations which are applicable to and imposed upon the Officer Incharge of a police station while investigating a cognizable offence under the Code of Criminal Procedure.
18. The phrase and term "shall be subject to the same provision as an Officer Incharge of a police station is subject to" (underlining is ours), being a referential borrowing and adopting clause in its nature and substance, therefore, is of great significance. 'While inserting the said clause in the present form the Legislature has employed the well-recognized art of drafting deliberately avoiding to reproduce or insert therein the various provisions of Chapter XIV including the provisions of sections 160, 161 and 162, Cr.P.C. Thereby doing away with the repetition of phrases.
19. The provision of subsection (2) ibid is a blended form of enabling and restrictive statute wherein on one hand the "appropriate officer" has been invested with the same powers which are exercised by the Incharge of a police station in collecting evidence by examining persons/witnesses acquainted with the facts of a cognizable offence/case while on the other hand the "appropriate officer" has been made subject to the same provisions of the Cr.P.C. Which debar the police officer from getting the signature of the person/witness on his statement, if reduced into writing.
20. On the above analogy, therefore, the "appropriate officer" holds and exercises the same authority and powers available to a police officer incharge of a police station-and, therefore, any statement taken or recorded by him in the said process in connection of offences under the Customs Act is not legally different from the one recorded under section 161, Cr.P.C.
21. Now so equipped with the powers of a police officer, whether the "appropriate officer" can be held to be a "person in authority" as contemplated by the provisions of Article 37 and Article 38 of the Qanun-e---Shahadat Order, 1984.
22. Not only for the above but there are many other reasons to hold that the "appropriate officer" is a person in authority. Besides exercising the powers under the provisions of Chapter XIV of the Cr.P.C. With which an officer of police is invested: the "appropriate officer" has similar or to say additional powers of arrest, seizure, search and detention in relation to goods and persons connected with offences of smuggling as envisaged by different provisions of Pakistan Customs Act, 1969.
23. The various provisions contained in Chapter XVIII of the Customs Act, 1969 particularly sections 158, 161, 163 and 171 give the "appropriate officer" the same powers and authority while conducting search, making seizure and effecting arrest which are conferred upon the police officer under the provisions of Cr.P.C. In cognizable offences.
24. All the above mentioned powers were effectively exercised by the Custom Inspector in the instant case by making seizure, arresting the accused, keeping them in detention and of course recording their statements, therefore, we have no doubt of any. Kind in our mind to hold that the "appropriate officer" is certainly a person in authority like an Officer Incharge of police station for the purposes of investigating cognizable offences under Pakistan Customs Act. No contrary view, on the above analogy, could possibly be held because the same would amount to committing violence to the clear intent of the Legislature which is manifest therefrom. Even otherwise too according to the canons and well-entrenched principles, penal statute is to be very strictly construed; when the same encroaches upon the liberty or life of a person.
25. The statements of the accused thus recorded by the "appropriate officer" in the instant case are certainly statements recorded by the person in authority like a police officer, therefore, we hold that the same are inadmissible in evidence and are of no legal worth and judicial efficacy. In this regard we, get support from the law laid down in the case of Nanoon Sheikh Ahmad v. Emperor AIR 1927 Bombay page 4, the Full Bench, in the above case confronted with a similar proposition of law in a case registered under the Bombay Abkari Act enunciated the following principle:-- (a)EVIDENCE ACT. SECTION 25 An Abkari Officer who in the conduct of investigation of an offence punishable under the Bombay Abkari Act exercises the power conferred by the Code of Criminal Procedure, 1898 upon an Officer Incharge of a police station for investigation of cognizable offence, is a police officer within the meaning of section 25 and therefore, confession made to him is inadmissible.
The term "Police Officer" for the purpose and object of section 25 of the Evidence Act was to prevent the abuse of their powers by the police in this country in extorting confession from persons in their custody, therefore, any other officer exercising almost same and similar powers although he may not be a person in authority because the term "Police Officer" should not be read in any strict and technical sense but according to its more comprehensive and popular meaning and, therefore, were of the opinion that the evidence of confession taken by Abkari Officer was inadmissible.
26. The legal worth of statements recorded under section 161, Cr.P.C. Is well defined in the said provision itself. The saint is not a substantive evidence and can be used only for a very limited purpose of contradicting a witness at the trial so to prevent him from corrupting his testimony by way of dishonest improvements at trial stage.
27. In all civilized societies of the nations, the authority to record and preserve legally admissible evidence or confessions, exclusively rest and lay with the judiciary because of its very highly elevated place in the system of a State run through trichotomy. Primarily seized with the administration of justice, therefore, evidence/confession taken and preserved by it is always placed at high pedestal and such sacred function cannot be delegated much less surrendered to the investigating agency of whatever nomenclature. No doubt there may be very few and rare exceptional cases wherein under particular law limited powers of recording/ collecting an admissible statement/evidence are conferred upon a specified authority of administration department but the scope of its legal effects and efficacy is always kept within narrow compass and can be used only for limited purposes. One of such instance is the provision of section 166 of the Pakistan Customs Act wherein only a gazetted officer is empowered to perform such duty.
27. The provisions of Articles 37 and 38 provide enough safeguard in this regard because of the firm command contained in Article 13 of the Constitution. On this analogy too we have no reason to hold the contrary view but the one held above.
28. In view of the above, the statements of accused recorded by the Customs Inspector are, therefore, inadmissible under the law and were used against them in violation of law.
29. From the record we find that both the Investigating Officers who recorded the statements of the accused, in their evidence at the trial have described these statements as the one recorded under section 161, Cr.P.C.
Again we find that the learned trial Court has also given these statements the same description while putting questions to the accused under section 342, Cr.P.C., resultantly the prosecution cannot be permitted to disown the above factual position or to wriggle out from it by avoiding its consequential legal effects.
29. In the case of Muhammad Farooq Afridi petitioner he has not made any such statement but statements of co-accused have been used against him which are otherwise o. No legal value.
30. There is no other legal evidence against accused-petitioner Ayub Nawaz, except his own statement, to reasonably connect him with the commission of crimes and which statement he has disowned and was not legally proved at the trial, therefore, his conviction was equally illegal.
31. We find no legal evidence on record to prove that Zafar Iqbal petitioner was having knowledge of the articles contained in the sealed boxes, being prohibited one under the law, thus legitimately no adverse presumption can be drawn against him. His conviction, therefore, is equally bad in law.
32. The plea that on the basis of evidence, no offence of abetment is made out against accused- petitioners Muhammad Farooq Afridi and Ayub Nawaz is no doubt a very strong one and in support of it we shall get guidance from the law laid down by the Honourable Supreme Court in the case of Ashgar Ali v. The State PLD 2003 SC page 250 but as we are mindful of our limited writ jurisdiction, therefore, we would not entertain and discuss it because for doing so we will have to make the appraisal of the entire evidence which is not a sound and acknowledged practice of the Courts in writ jurisdiction.
33. As the conviction of all the petitioners has been based on inadmissible evidence and being in disregard of law, therefore, is null and void ab initio and not sustainable.
34. For the above reasons, all the three petitions are, therefore, accepted, the conviction and sentences of the petitioners are set aside, they are accordingly acquitted of the charges leveled against them.