SHAUKAT HUSSAIN SHAH AND Another vs THE COMMISSIONER, LAHORE
This criminal appeal arises from an order of reference made by the Commissioner, Lahore Division, referring a case registered against the appellants under the Sea/Land Customs Act for trial by a tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, without affording the appellants an opportunity of being heard. The appellants challenged the reference via a writ petition, which was dismissed by the High Court. Upon special leave to appeal, the Supreme Court considered whether the reference was vitiated due to the lack of a pre-reference hearing and whether the Provincial Act was repugnant to the Central Sea Customs Act. The Supreme Court held, following its precedent in Home Secretary v. Jan Muhammad, that a reference of a case to a tribunal under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 without granting the accused an opportunity to show cause is illegal. The Court accepted the appeal and directed that the case be laid before the trial Magistrate for trial in ordinary criminal jurisdiction, leaving other contentions open for the Magistrate's consideration.
- Whether a reference of a case to a tribunal under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 is illegal if made without giving the accused an opportunity to show cause?
- Does a Provincial Act providing a different forum for trial of offences under a Central enactment give way to the Central Act to the extent of repugnancy?
- Section 3, West Pakistan Criminal Law (Amendment) Act 1963
1. SAJJAD AHMAD, J.-A case under section lti7-8/9 of the Sea/Land Customs Act was registered against the appellants, and was referred by the Commissioner, Lahore Division, for trial by a tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963 (hereinafter described as `the Act'). The appellants challenged this order by a writ petition in the former High Court of West Pakistan, Lahore, on the ground that the reference was invalid as the appellants were not heard by the Commissioner before the order of reference was made. The writ petition was dismissed. Special leave to appeal was granted by this Court to the appellants on the 20th of February 1968, as in the meantime a full Bench of the High Court held in the case of Jan Muhammad v. The Home Secretary, West Pakistan, that a reference of a case to the tribunal for trial of an accused person under section 3 of the Act, without giving him an opportunity to show cause against it, was illegal.
2. The same case came up before this Court in Civil Appeal No. 12 of 1968, in which the view of the full Bench has been affirmed by this Court by its decision reported as Home Secretary to the Government of West Pakistan, Lahore v. Jan Muhammad and another (PLD 1969 SC 333).
3. Another point -on which leave to appeal was granted, was that the Sea Customs Act, which was a Central enact--ment, provided a, special forum for trial of the offences under the Act, and that the West Pakistan Criminal Law (Amendment) Act, 1963, being a Provincial Act, which provided a different forum for the trial of the same offences, must give way to the Central Act to the extent of its repugnancy with the latter. The West Pakistan Criminal Law (Amendment) Act has since been repealed, and its conflict with the Central Act is no longer a live issue. In any case, it is an academic issue so far as this case is concerned, because the reference of the appellants for trial under the Act has to be set aside as illegal in view of the decision of this Court in Civil Appeal No. 12 of 1968 cited above as they were not heard by the Commissioner before lie made the order of reference against the appellants, under section 3, for their trial by the tribunal under the Act.
4. The result is that this appeal is accepted. The case of the appellants will be laid before the trial Magistrate for trial in the ordinary criminal jurisdiction.
5. The learned counsel for the appellants has submitted that the Customs authorities have cleared the goods which were the: subject-matter of the offence, and any further proceedings in respect of those goods are infructuous. This is a point which the appellants can submit to the trial Magistrate who will have to deal with the case.
6. This appeal is accepted with the order, as stated above.