1999SCMR632 (PLP)

WAJIHUDDIN AHMED, J.

The petitioner imported a consignment, describing the same as tamarind with seeds, the import being from Bangkok, 'Thailand. The Customs Examination and Appraisal Staff, after examination, said that exemption in the payment of sales tax at the rate of 12-1/2 per cent. was not admissible to the goods in question because the same were in processed form. On appeal before the Collector (Appeals), the appellate forum recorded the contentions and the position taken before him by the importer in the undernoted words:-- "On the next date fixed for hearing on 13-4-1998 Sheikh Abdul Hafeez, Proprietor of the appellants firm appeared and again stated forcefully that the consignment of tamarind with seeds was not chargeable to sales tax. When asked if the sample drawn at the time of physical examination be sent for laboratory test with a view to determining the fact as to whether the goods were in unprocessed form or were processed he stated that he did not want any laboratory test nor he contested the plea of the department that the goods were in processed form. He further stated that even if the goods be in processed shape he did not want to contest it. His point of view was that the goods in question were not imported in bottled, canned or packaged shape, hence the exemption envisaged in Sixth Schedule of the Sales Tax Act, 1990 was available." The Collector rejected the petitioner's plea for exemption of sales tax, recording his conclusion as below:-- "I have given due consideration to the version of both the parties. I am of considered view that the exemption from sales tax as envisaged in Sixth Schedule of the Sales Tax Act, 1990 (serial No.3-II) is available to unprocessed foodstuff only including fruits. Tamarind has been classified as one of the fruits under P.C.T. heading 0813-4010 but no exemption can be claimed if it has not been imported in its natural form. The goods imported by the appellant have been found as having been obtained from Tamarind pods by way of mechanical process and not in their natural unprocessed form. " A further appeal taken before the Customs, Excise and Sales Tax Appellate Tribunal (Lahore Bench) was dismissed on 4-6-1998, such Tribunal recording its conclusion as below:- "The entry at Serial No.3(ii) of he Sixth Schedule of the Sales Tax Act, 1990 pertains to unprocessed foodstuff which has not undergone any transformation through manual or mechanical process etc. As to the goods-in-question, it is an admitted fact that these were subjected to mechanical process through tamarind pods. As a result thereof, these fall outside the purview of the generic entry of unprocessed foodstuff referred to above. The stand of the appellants that only those vegetables, fruits, and fruit juices can be excluded from the generic, entry which are bottled, canned or packaged has no nexus with the phraseology used therein and appears to be more of a figment of their imagination and not in the context of any legal parlance." In consequence, the importer preferred C.A.69 of 1998 before the Lahore High Court, but a Division Bench of that Court on 30-9-1998 declined to interfere and dismissed it, giving rise to the present leave petition. The petitioner claims exemption under section 13(1) of the Sales Tax Act, 1990 read with the entry at Serial No.3(ii) of The Sixth Schedule appended with the said Act. These provisions read: Section 13(1) of the Sales Tax Act, 1990 "

13. Exemption.

(1) Notwithstanding the provisions of section 3, supply of goods or import of goods specified in the Sixth Schedule shall, subject to such conditions as may be specified by the Board, be exempt from tax under this Act." Entry at Serial No.3(ii) of the Sixth Schedule to the Sales Tax Act 1990. Sr. No. Description Heading Nos. of the First Schedule to the Customs Act, 1969 1 2 3 1. .. 2. .

3. Unprocessed foodstuff for human consumption which shall mean:- (i) . (ii) all vegetables, fruits and fruit, juices whether fresh, frozen or otherwise preserved (e.g., in "cold storage") but excluding fruits, fruit juices and vegetables bottled, canned or packaged;" In the first place, all kinds of "foodstuff(s)" exempted from sales tax under Serial No.3 of the Sixth Schedule of which, currently, there subsist as many as eleven sub-entries, are qualified by the word "unprocessed". To put the matter more explicitly, it is only such foodstuff(s) as are "unprocessed", which would qualify for the exemption, aforementioned. Admittedly, as recorded by the Collector, the, foodstuff in question was not in an unprocessed form. Thus, the same did not qualify for exemption. The normal rule is that words in a statute, unless the context otherwise warrants or the Legislature exhibits a different intention, are to be accorded their ordinary natural meanings. The instant legislation in relation to the word "unprocessed" has, resorted to both these devices. As a result, ordinarily literal meanings shall have to be ascribed to the word except when in a given context, the Legislature, cognisant of attending exigencies, has either expanded or curtailed its connotations. Thus, whereas the controlling words 'of the entry remain constant, some of the aspects of processing, though not all, are exemplified by sub-item 3 (ii) itself when such pointedly excludes from the; exempted category "fruits, fruit juices and vegetables, bottled, canned or! packaged". Now, according to ordinary dictionary meanings, the word "process" used as a verb, inter alia, equals "to prepare (agricultural produce) for marketing e.g. by canning, bottling or treating it chemically". Therefore, while packaging is, additionally illustrated in the sub-heading, there is nothing to suggest that other normal forms of processing, manual, mechanical or chemical have thereby been excluded. Indeed, there are items in the heading e.g. 3(iv) where packing is not treated as processing, Much as freezing or otherwise preserving, is not taken as processing under the item in hand viz. 3(ii). The position, therefore, remains that only such of the foodstuffs stand exempted from sales tax, as be in the generic unprocessed form, the Legislature explicitly exercising its own option of deviation, wherever, in relation to a given sub-item, it deems fit. The only categories excluded from the circumstance of processing in Serial No.3(ii) of the Sixth Schedule are freezing or otherwise preserving, normally falling within the element of processing. No occasion arises for further limiting the ambit of the qualifying word "processed" occurring in the entry. The above conclusion is strengthened by the fact that tamarind has been imported not in its natural form but as tamarind pods. The word "pods", used as a noun, in its ordinary significance, signifies usually "a long thin case containing seeds that develops from the flowers of various plants, especially peas and beans". This, in turn, would suggest a situation where tamarind pods had been separated from tamarind for the purposes of marketing and sale, implying the use of a process-, manual or mechanical, causing a difference in substance and, thus, taking away the produce from the category of exemption. Our conclusion, therefore, is that the orders impugned in this leave petition are unexceptionable and do not call for any interference. The petition is dismissed and leave declined. M.B.A./W-29/S Petition dismissed. 1999SCMR637 [Supreme Court of Pakistan] Present: Raja Afrasiab Khan, Sh. Ijaz Nisar and Sh. Riaz Ahmed, JJ NAUBAHAR

Appellant versus THE STATE

Respondent Criminal Appeal No.74 of 1996, decided on 30th October, 1998. (On appeal against the judgment dated 27-5-1995 of the Lahore High Court, Multan Bench, Multan in M.R. No.235/92 and Cr.A. No.162/92): (a) Penal Code (XLV of 1860)

S.302

Constitution of Pakistan (1973), Art, 185(3)

Leave to appeal was granted by Supreme Court to the accused to reappraise evidence in the case. (b) Penal Code (XLV of.1860)

S.302

Constitution of Pakistan (1973), Art. 185

Appraisal of evidence

Complainant as well as other uninterested eye-witness in the case had satisfactorily explained their presence at the scene of occurrence

Despite lengthy cross-examination of eye-witnesses, defence had failed to elicit anything in favour of accused

Accused having killed the deceased in daylight in the Bazar of the village, question of mistaken identity had become irrelevant-- Conviction of accused was upheld in circumstances. (c) Penal Code (XLV of 1860)

S.302

Sentence

Mitigating circumstance--Prosecution had failed to prove the motive as set up in the case and the same remained shrouded in mystery-- What had transpired immediately before the occurrence was not known-- Sentence of death awarded to accused was altered to imprisonment for life in circumstances. Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Appellant. Altaf Mahi Sheikh, Additional Advocate-General (Punjab) for the State. Gul Zarin Kiani, Advocate Supreme Court for the Complainant. Date of hearing: 30th October, 1998. JUDGMENT SH. RIAZ AHMED, J.

Appellant Naubahar was tried by an Additional Sessions Judge, Sahiwal on a charge under section 302, P.P.C. for having committed the murder of Habib deceased. vide judgment dated 15-6-1992 the learned Additional Sessions Judge found the appellant guilty on the said charge and thus, the appellant was convicted and sentenced to death and to pay a fine of Rs.30,000 or in default thereof to suffer R.I. for a term of 5 years. The learned Additional Sessions Judge further directed that in the event of recovery of fine, the same shall be paid as compensation to the legal heirs of Habib deceased. The learned Additional Sessions Judge referred the case to the High Court under section 374, Cr.P.C., while the appellant also filed an appeal. A Division Bench of the Lahore High Court vide judgment dated 25-7-1995 answered the reference in affirmative and the appeal preferred by the appellant was dismissed. The appellant then invoked the jurisdiction of this Court by way of filing a petition for leave to appeal and vide orders dated 7-4-1996 this Court granted leave to appeal to reappraise the evidence in this case.

2. The occurrence resulting into the death of Habib deceased took place on 14-2-1990 at 1-00 p.m. within the area of Ahmed Baghela situated at a distance of 9 k.m. from the Police Station Harappa in District Sahiwal. The occurrence was reported by Muriel, a brother of the deceased at 2-30 p.m. to Karamat Miran, Sub-Inspector, who recorded his statement on the basis of which F.I.R. was drawn. Muriel complainant stated that he was resident of Ahata Taurez in village Ahmed Baghela while his deceased brother, Ghulam and Farid were also living in the same village. On the fateful day at about 1-00 p.m. the complainant alongwith his brother, Ghulam and one Muhammad Bakhsh son of Mian Fazil was standing in the Bazar of the village near their cattle when the deceased came out from the shop of blacksmith Ramzan where he had gone to get his Reti and Toka sharpened. As soon as Habib came out from the shop with his tools, the appellant emerged at the scene of occurrence armed with a double-barrel .12 bore gun and he raised a Lalkara remarking that he would kill Habib deceased and thereafter fired a shot hitting the right thigh of Habib deceased, who on the receipt of this injury, fell down. The complainant Muriel and his brother Ghulam and Muhammad Bakhsh then started to rush towards the appellant chased him, but the appellant succeeded in escaping from the scene of occurrence alongwith the gun. The deceased Habib succumbed to the injuries at the spot. The motive for the crime as narrated by the complainant was that six months before this occurrence the appellant Naubahar had given beating to Farid, a brother of the complainant whereupon the complainant had given slaps to an uncle of the appellant and thus it was stated that on the basis of this grouse the appellant had killed Habib deceased.

3. P. W.9 Dr. Muhammad Raheel conducted post-mortem examination on the dead body of deceased Habib and found that death had occurred due to heamorrhage on account of injuries to the blood vessels because of the fracture of the femer bone. The doctor also explained that there was extensive and rapid loss of blood resulting into the shock and failure of heart.

4. When examined under section 342, Cr.P.C., the appellant denied the charge and stated that it was an unwitnessed occurrence, the eye-witnesses were inimical and interested and he had been falsely involved in this case. The appellant denied to make any statement under section 340(2), Cr.P.C.

5. With the assistance of the learned counsel for the appellant and the State as well as the complainant we have gone through the entire record of this case for reappraising the evidence. To prove its case the prosecution had placed reliance upon the ocular testimony furnished by Muriel P.W.5, brother of the deceased and P.W.6 Muhammad Bakhsh, who is not related. The learned counsel for the appellant criticized the ocular testimony and stated that its nature was interested, and therefore, it was incumbent upon the prosecution to have brought on the record independent corroborative evidence to lend strength to it. The learned counsel further argued that one crime empty was recovered from the spot and thereafter, the appellant in custody had led the police and had got recovered a double-barrel .12 bore gun from his house and the same had been sent to the forensic expert, but the prosecution had failed to produce the report of the forensic expert on record. It was thus urged that an adverse inference should be drawn against the prosecution for withholding the report and it will be presumed that the empty had not been shot from the aforesaid weapon and hence no corroborative evidence exists on the record to believe the prosecution version. We have carefully examined this aspect of the case in the light of the evidence on record, but we are of the view that both the eye-witnesses were present and had seen the occurrence. The visit of the deceased to the shop of Ramzan blacksmith is also supported through the recovery of blood-stained Red lying at the spot P.W.6 admits that in the past there had been a dispute over land with the appellant and others, but a compromise had taken place. In our view, this circumstance alone is not sufficient to brand Muhammad Badshah as an interested witness. Muhammad Bakhsh P.W. satisfactorily explained his presence in the Bazar of the village and in our view no motive exists on the record on the basis of which it can be safely inferred that he had any motive to e falsely implicate the appellant in this case. The first informant Muriel, brother of the deceased has also satisfactorily explained his presence at the scene of occurrence and we have no doubt in our mind about his presence at the scene of occurrence. Furthermore, both these witnesses were cross-examined at length, but the defence failed to elicit anything in his favour.

6. To sum up we are of the view that the prosecution had proved its case beyond any shadow of doubt against the appellant, who had killed the deceased in daylight in the Bazar of the village and on this basis as well the question of mistaken identity also becomes irrelevant.

7. Adverting to the motive for the commission of crime as narrated by the first informant, we are of the view that in the first round about six months before this occurrence, it was the appellant who had given beating to Farid, a brother of the first informant and the deceased. In retaliation the first informant had given slaps to uncle of the appellant. In our view, this motive seems to be very weak and had it been the real motive, the first informant would have been the target of the attack rather than Habib deceased. On account of these circumstances, we are of the view that the prosecution has failed to prove the motive as sought to be set up. It is shrouded in mystery and what immediately transpired before the occurrence is unknown. In this view of the matter, we are of the view that it is not a fit case for the award of extreme penalty of death. Thus, while dismissing the appeal, we would modify and alter the sentence of death into one of life imprisonment- The appellant is, thus, sentenced to undergo imprisonment for life and to pay a fine of Rs.2,00,000 or in default thereof to suffer. R. I. for a term of two years. The amount of fine, if recovered, shall be paid as compensation to the legal heirs of the deceased the appellant shall also be entitled to the benefit of section 382-B, Cr.P.C N.H.Q./N-46/S Sentence reduced