The State through Collector Customs (Enforcement) Peshawar Vs Turab Utmanzai and another

I

JUDGMENT SHEET

PESHAWAR HI GH COURT. PESHAWAR

JUDICIAL DEPARTMENT

Criminal No.1326-P12022

The State through Collector Customs (Enforcement), Peshawar Vs Turab Utmanzai and another.

Date of hearing: 20.10.2023

Appellant(s) by: Mr. Zeyad Khan, advocate. Respondent (s) by: Mr. Waliullah, advocate.

JUDGEMENT

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IJAZ ANWAR. J: This appeal has been filed by the State through Collector of Customs (Enforcement), Peshawar under section 185-F of the Customs Act, 1969 against the Judgement dated 14.10.2021 passed by the Special Judge, Customs, Taxation & Anti-smuggling Khyber Pakhtunkhwa, Peshawar in case FIR No. 19/2020 dated 09.03.2020, under Sections 2(s), 16, 131, 157 and 178 of the Customs Act, 1969 read with section 3 (l) of Import and Export (Control) Act, 1950, punishable under clauses (l), (8), (9) (70)

and (89) of Sub Section I of section 156 of the Customs Act, 1969 and section 3(3) of Import & Export (Control) Act, 1950 of Police Station Investigation & Prosecution Branch Model Customs Collectorate, Customs House, Peshawar whereby accused/respondents were acquitted of the charges leveled against them in the instant case

) In the instant case, the respondents accused Turab being driver whereas Shahid Adil being conductor of vehicle/Trailer bearing registration No. KAB ll2l2 being charged tbr recovery of 07 slabs foreign original gold weighing 6785.130 grams at the Exit gate of Tork*ram Border faced trial before the trial Court and were ultimately acquitted of the charges vide judgement dated 14.10.2021. Feeling aggrieved, the State through Collector Customs, (Appraisement), Peshawar has preferred this appeal

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5 During arguments, learned counsel for the respondents raised an objection to the maintainability of the instant appeal by contending that it has been filed beyond the limitation provided under section 185-F of the Customs Act, 1969 and in view of such inordinate delay, this appeal is liable to be dismissed being hopelessly time barred.

6 Under the provisions of section 185-F of the Customs Act, 1969, 60 days limitation has been provided for filing appeal before the Special Appellate Court /High Court against the decision made by the Special Judge. The same being relevant is reproduced as under:-

"1"85F. Appeal to Special Appellate Court.- (1) Any person, including the Federal Government the c( [Boardl, the Collector of I Customs or [Director of Intelligence and Investigationl or any other officer authorized in this behalf by the Boardl, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure,1898 (Act V of 1898), rry, subject

v to the provisions of Chapters XXXI and XXXII of the Code, within [sixty daysl from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of il High Court under the said Code.

@ Except as otherwise provided in sub-section (1), the provisions of the Limitation Act,1908 (Act IX of 1908), shall apply to an appeal or a revision preferred under sub- section(1,)."

7 The Customs Act, 1969 is a special law and its provisions are to be strictly construed which has clearly provided 60 days limitation for filing of appeal against the decision of the Special Judge.

Perusal of record shows that the impugned judgement has been pronounced on 14.10.2021 against which the instant appeal has been filed on 14.12.2022with a delay of about 14 months. In the case titled "

General. Sindh Vs Mansoor Muiahid" reported in 2019 MLD 1092-Sindh it was held that:

"lt is an appeal against acquittal wherein presumption of double innocence is available to the accused. In the appeal against acquittal the appellant has to explain and give the reasons for each and every day for filing the appeal if it is time barred.

In appeal against conviction the delay is condoned favourbly. No plausible and sound reasons have been given for filing the appeal with delay and for condonation of delay. The appeal is hopelessly time barred. No plausible and sufficient grounds have been agitated to look into depth and condone the unexplained delay in filing the appeal has been urged."

8 Though, alongwith the appeal, a C.M has been filed for condonation of delay, however, no plausible explanation has been provided therein for such inordinate delay. Record further depicts that the case was argued by the learned SPP for the State and counsel for the accused respondents a

before the trial court on 14.10.2021 followed by pronouncement ofjudgement. It is not appealable to a prudent mind that the appellant/State remained

v unaware about the fate of the case despite arguing the case on the date the judgement was pronounced. Learned counsel for appellant has not been able to satisfu this Court with regard to inordinate delay in filing this appeal, thus the CM for condonation of delay being devoid of merits is dismissed. Resultantly, the instant appeal is also dismissed being hopelessly time barred.

JUDGE

Announced / Dated.20 .10.2023

"Amtu"