P L D 1959 (W (PLP)

ABDUL HAMID, J.‑A revision application has been presented against the order of the Additional Sessions Judge, Karachi, dated 11‑11‑1957, by which he rejected the petitioners prayer to discharge them of the offence under section 167 (8) of the Sea Customs Act. The petitioners have also applied for quashing the order of the Magistrate, dated 30‑4‑1956 by which they were committed to the Court of Sessions for standing their trial on the aforesaid charge. The facts of the case which led to the commitment of the accused to the Court of Sessions are that on 5th April 1954 six persons Muhammad Irtiza, Sultan, Ismail, Yar Muhammad Muhammad Siddiq and Umar were found carrying bundles o smuggled cloth in two taxis and were arrested some where between Landhi and Malin On 9‑5‑1954 the case was instituted into the Court of a Magistrate First Class for inquiry. After inquiry the Magistrate, by his order dated 30‑4‑1956, committed the six accused to the Court of Sessions for standing their trial on a charge under section 167 (8) of the Sea Customs Act. While the case was pending in the Court of Sessions an appli cation was made on behalf of the accused on 19‑8‑1957 that the trial should be abandoned and the accused should be discharged because on 2‑8‑1957, section 167 (8) of the Sea Customs Act had been amended by section 3 of the Sea Customs (Amendment) Ordinance, 1957 and by that amendment offence under section 167 (8) of the Sea Customs Act became triable by the Customs authorities only and ceased to be triable and punishable by a Court of law. A contravention of the provisions of section 167 (8) of the Sea Customs Act, as it stood before this amendment, could be tried by a Court of law as well and in that case it was punishable by imprisonment for a term not exceeding seven years or fine or both. That application was rejected by the order of the Additional Sessions Judge, dated 11‑11‑1957 and that order is under revision now. The main ground on which proceedings pending in the Sessions Court have been attacked is that as from the 2nd day of August 1957 section 167 (8) of the Sea Customs Act was amended and by virtue of that amendment, affected by the Sea Customs Amend ment Ordinance, 1957, offences under section 167 (8) of the Act ceased to be triable by a Court of law. The Sea Customs (Amendment) Ordinance, 1957 (Ordinance VIII of 1957) has history behind it. The provisions of section 167 (8) of the Sea Customs Act, as they stood before this amendment, contained provisions both in respect of the penalties for contra ventions, and the manner in which the penalties were to be imposed. There were two different punishments and two different modes for imposing those punishments. One was by confiscation of smuggled goods and imposition of fine not exceeding five times the value of the goods by Customs authorities, and the other was punishment by a Court of law by imprisonment for a term not exceeding seven years or fine or both. It was at the discretion of the Customs authorities to select either of the two methods for the disposal of any case. They could either retain the case with themselves to be dealt with by themselves, in which case the penalty was by way of confiscation or fine, or they could send the case to the Court of law for trial where on conviction the offender could be sentenced to seven years' imprisonment and fine. It was found that this discretion, which was in the hands of the Customs authorities, was capable of being used in favour of those whom they desired to select for punishment by themselves, and against those whom they chose to send to Court of law. It was a discriminatory provision in their possession and being so discriminatory it was in conflict with Article 5 of the Cons titution. In order to purge the provision of section 167 (8) of the Sea Customs Act of its discriminatory character it was decided to. amend section 167 (8) of the Sea Customs Act by making all contravention of that provision punishable by Customs authorities only by confiscation of smuggled goods and imposition of fine not exceeding five times the value of the goods. The other alternative of trial of the offender in Court of law was abolished. The amending Ordinance of 1957 was later on replaced by Sea Customs Amendment Act XXXIV of 1957 which came into force on 13th September 1957. Since this case was pending in the Court of Sessions when this amendment came into force, a question was raised that by this amendment the case ceased to be triable by a Court of Sessions and went out of its jurisdiction, and the offence became punishable by Customs authorities only. There are provisions in section 6 of the General Clauses Act, 1897, by which effect of repeals are to be determined. According to that section, when an Act repeals any enactment, then, unless a different intention appears, the repeal does not affect any investigation or legal proceedings already instituted. The relevant provisions of that section are as follows :‑ "

6. Where any Central Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not. (a).......... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, for feiture or punishment may be imposed, as if the repealing Act or Regulation had not been passed". If the Sea Customs (Amendment) Ordinance, 1957 and the succeeding Act of 1957, which repealed one of the two modes of punishment and trial provided in section 167 (8) of the Sea Customs Act, contains nothing to indicate a different intention then the legal proceedings instituted in respect of this offence in the Court of the Magistrate First Class on 9‑5‑1954 will be allowed to continue and the penalty provided in the repealed provision would remain in force. But we find that a different intention has been expressed in section 3 of the Sea Customs (Amendment) Ordinance and the succeeding Act of 1957, and it requires to be seen whether this case falls within the ambit of that intention. Section 3 of the Ordinance reads as follows: ‑ "

3. Anything done in pursuance of item 8 or item 81 of the Schedule to section 167 of the said Act (i.e. the Sea Customs Act) on or after the 23rd day of March 1956, and before the promul gation of this Ordinance shall be deemed to have been done in pursuance of those items as amended by this Ordinance. " Since section 2 of that Ordinance and Act of 1957 abolished the mode of trial by a Court of Law as from 23rd day of March 1956 it became necessary to say in section 3 that anything done under section 167 (8) of the Sea Customs Act on and after 23rd March 1957 should be deemed to have been done in ace9rdanw with the amended provision. On the language of sections 2 and 3 of their Amending Ordinance and the Act the amendment took effect both in respect of penalty and procedure retrospectively from 23rd March 1956. The effect of the repeal is to be assessed in the light of the intention expressed in those two sections of the Amending Ordinance and Act. According to those provisions, proceedings instituted on or after the 23rd day of March 1956 would no doubt be conducted in accordance with the new amendment. But offences committed before the 23rd of March 1956 and proceedings instituted before that day would continue to be conducted in accordance with the provisions of the Sea Customs Act as they stood before the 23rd of March 1956. Section 3 of the Amending Ordinance and the Act brought under the purview of the amend ment only those proceedings which were instituted after 23rd March 1956 and left those instituted before that day to be dealt with in accordance with the provisions of section 6 of the General Clauses Act. What fell under the protection of section 3 of the, Amending Ordinance and Act of 1957 were the remedies available after the 23rd of March 1956 and proceedings instituted after that date. It can be contended, on behalf of the accused that they were committed to the Court of Sessions on 30th April 1956, i.e. thirty seven days after 23rd March 1956, and proceedings in the Court of Sessions should be deemed to have been instituted after the 23rd day of March 1956, and on that argument they are within the ambit of section 3 of the Sea Customs Amendment Ordinance and Act of 1957. But that contention is contrary to accepted rule of law. It is now well settled that inquires which terminate to commitment to the Court of Sessions are legal proceedings (see A I R 1929 Mad. 170). In this case legal proceedings against the accused were instituted in the Court of the Magistrate on 9‑5‑1954, long before 23rd of March 1956, and they are outside the protection provided in section 3 of the Amending Ordinance and Act of 1957. If the case was committed to tile Court of Sessions on 30‑4‑1956, the proceedings in the Court of Sessions were in continuation of the proceedings initiated in the Court of the Magistrate. We are, therefore, of opinion that the case in hand, in which the offence was committed on the 5th of April 1954, and legal proceedings were instituted on the 9th of May 1954, is outside the ambit of section 3 of Sea Customs (Amendment) Ordinance and Act, and required to be dealt with in accordance with the provi sions of section 6 of the General Clauses Act and that section demands that proceedings instituted under the repealed provisions should continue in the Court in which they are pending, and the penalty provided in section 167 (8) of the Sea Customs Act as it stood before the amendment of 1957 should be imposed. For these reasons this revision application is rejected. K. B. A. Application rejected.