1998 P Cr (PLP)

Tariq Mehmood, D.A.‑G. for the State (in Custom Appeal No. 15 of 1997). Appellant through Jail (in Custom Criminal Jail Appeal No. 16 of 1997). Tariq Mehmood, D.A. ‑G. for the State (in Custom Criminal Jail Appeal No. 16 of 1997). Date of hearing; 5th September, 1997. By this order, I have proposed to dispose of the questions, as to whether an accused can be convicted and sentenced simultaneously under subsections (8) and (89) of section 156 of the Customs Act. 1969? In Criminal Appeals No.6, 7, 10, 11, 15 and 16 of 1997, appellants have been convicted.' under both the subsections therefore, learned counsel appearing for them raised preliminary objection, about non‑sustainable of these sentences. Thus I have decided to first of all attend this particular question in all the cases and then to proceed with the merits of appeals. Since important question of law was involved, therefore, Mr. Aslam Chishti, Senior Advocate was asked to assist the Court, as amicus curiae. According to him, as per the definition of smuggling in section 2(s) of the Customs Act. 1969, attempt to smuggle has also been made punishable, Therefore, prosecution is bound to establish under subsection (8) of section 156, Independently that the goods were being smuggled into or out of Pakistan, whereas to attract subsection (89) of section 156, duty of the prosecution is to establish that any person without lawful excuse, the proof of which shall be on such person, acquires possession or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with smuggled goods or any goods with respect of which, :here may be reasonable suspicion that they are smuggled goods. He further contended that on there possession of smuggled goods would not be sufficient to prove that it were Doing smuggled into or out of Pakistan. Therefore, in absence of cogent proof, normally it is not possible to sentence an accused under both the provisions However, he can be made liable under any one of subsection (8) or (89) of section 156 of the Customs Act. To strengthen his argument he made reference to different laws particularly Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, wherein Article 3 prohibits, imports, exports, transports, manufactures, sells, etc. of intoxicant, whereas Article 4 deals with punishment of possessing intoxicant. According to him, the person who is transporting, manufacturing or selling the intoxicant, he would be deemed to be in its possession, therefore, he can be sentenced under Article 3 and for the same possession he cannot be sentenced under Article

4. In this behalf he trade reference to PLD 1994 SC

255. Then he referred to a case from the jurisdiction of Sindh High Court reported in 1981 PCr.LJ

958. Relevant para from the said judgment is reproduced hereinbelow:‑‑-- "So far as the case of appellant Vaqar Hussain is concerned, he admits that he had issued a Bank Draft one day prior to the date of occurrence in favour of appellant Nasir Saba. He, has, however, denied that he gave the said Bank Draft to the co‑accused in order that the amount may be taken out of Pakistan. It is significant that he is the drawer of the Bank Draft in favour of the co‑accused and yet he does not explain in what connection he intended to pay such huge amount in foreign exchange to the co‑accused. All that he states in his written statement is that he had no concern with the manner of disposal of the Draft. The other significant fact is that the account was opened by this appellant only one day before the date of incident i.e. 15th June, 1978 and on the same day he issued a Draft in favour of the co‑accused. This is proved by the testimony of P.Ws. Khursheed Ahmed Ansari and Jamiluddin Exh.4‑A, the Account Opening Form further shows that this appellant deposited by cash a sum of U.S. $ 15,250 and issued simultaneously the Bank Draft for approximately the same amount. These are significant facts for which no plausible explanation is forthcoming from the appellant. According to the definition of "smuggling" as provided by section 2(s) of the Customs Act, 1969, taking out of Pakistan, inter alia currency, in breach of any prohibition or restriction for the time being in force amounts to smuggling and the term includes an attempt as well as abetment or connivance. The, Foreign Exchange Regulation Act, 1947 defines the word "currency" to include, inter alia, drafts, Apparently, therefore, the taking out of a bank draft in violation of the restrictions for the time being in force would constitute smuggling. It was contended by Mr. Raja Qureshi, learned counsel for appellant Vaqar Hussain that he being a British National maintaining a foreign currency account at Karachi could legally take out money from Pakistan and in any case the Bank Draft was not encashable within Pakistan. The learned trial Court has examined this aspect of the case in great detail and come to the conclusion that the said appellant violated the prohibitions contained in the Exchange Control Manual issued by the State Bank of Pakistan in issuing the said Draft in favour of a Pakistani National. In this behalf reference has been made to Chapter VI of the Exchange Control Manual. Rule I of the said Chapter deals with the opening of the foreign currency account by foreign nationals and by Pakistani Nationals residing abroad. Reference has also been made to Notification No.F.E. 74‑59 S.B., dated 25th February, 1959 issued in pursuance of subsection (1) of section 4 of the Foreign Exchange Regulation Act, 1947 in order to remove prohibitions of the said subsection to the operation of foreign currency account by foreign nationals in Pakistan. The aforesaid provision of law prohibits persons other than authorised dealers in Pakistan except with the previous permission of the State Bank, to "buy or borrow from or sell or lend to, or exchange with any person not being an authorised dealers, to foreign exchange". It would, therefore, appear that this Notification has only removed the prohibition contained in the aforesaid subsection (1) of section

4. It, therefore, follows that the restrictions on dealing in foreign exchange contained in subsections (2) and (3) of section 4 continued to apply. These restrictions prevent all persons except with the previous permission of the State Bank from entering into any transaction which provides for the conversion of Pakistani currency into foreign currency or vice versa at the rates of exchange other than the rates for the time being authorised by the State Bank. A foreign national who holds a foreign currency account in Pakistan cannot enter into a transaction with a Pakistani National except with the permission of the State Bank so as to pay foreign exchange to such national in accordance with the permission and at the rate prescribed in that behalf. Additionally as pointed out by the learned trial Court the facilities allowed to foreign nationals for operating foreign currency account in Pakistan are subject to certain restrictions under sub‑rule (iii) of Rule 1 of Chapter VI which makes it incumbent that payments from such accounts to beneficiaries in Pakistan can be made only in Rupees. Rule 6 of this Chapter further provides for a total ban on payments of foreign currency by foreign nationals residing in Pakistan to the residents of Pakistan whether Pakistanis or foreign nationals. In view of the aforesaid the argument that appellant Vaqar Hussain was legally entitled to issue the Bank Draft in favour of appellant Nasir Saba is untenable. Clearly by making and issuing ‑the Draft in favour of the latter appellant Vaqar Hussain abetted the commission of the offence of smuggling. He has, therefore, been rightly convicted by the trial Court. " It is interesting to note that the author of above judgment Mr. Justice Zaffar Hussain Mirza, as he then was the Judge of Sindh High Court, also pronounced judgment in the case of Central Board of Revenue and another v. Khan Muhammad (PLD 1986 SC 192). Relevant para. therefrom is also reproduced hereinbelow:‑‑- "Now clause (8) of section 156 deals with the offence of smuggling goods into or out of Pakistan and clause (89) provides for punishment for acquiring possession of or in any way being concerned in carrying, removing, depositing, harbouring, keeping or concealing any smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods. The learned Judges of the High Court have referred to Notification No.F.E 1/78‑SB, dated 11th May, 1978, issued by the State Bank of Pakistan by which any person could bring into Pakistan from any place outside Pakistan without limit, any currency notes or bank notes other than un-issued notes or notes legal tender in Pakistan. The learned Deputy Attorney‑General has not been able to bring to our notice any notification superseding the aforesaid notification of the State Bank of Pakistan putting any embargo on the import of a such currency notes. In the circumstances he has not pressed the case as that of illegal importation of foreign currency by the re7pondent. Indeed the findings of the Collector of Customs to the adjudication proceedings were also that the respondent had not brought arty foreign currency from outside Pakistan but according to him the respondent had collected the foreign currency seized from his possession locally. In view of this the learned Deputy Attorney‑General was unable to press the charge under clause (89) of section 156, for the simple reason that if there was no restriction or prohibition on the import of foreign currency notes, the possession of such notes cannot be said to be the possession of smuggled goods or goods with respect to which there may be reasonable suspicion that they are smuggled goods. As regards clause (8) of section 156 also, in view of the admitted position that there was no prohibition on the importation of foreign currency notes, there would be no question of smuggling the same into Pakistan. The only question to be considered and indeed pressed by the learned Deputy Attorney‑General is whether the respondent had made an attempt to smuggle foreign currency notes out of Pakistan so as to attract the mischief of clause (8) of section 156 of the Customs Act, 1969. " To support his contention he also relied on 1991 SCMR

895. According to learned counsel, if the proposition is also tested on the analogy that an accused is in possession of a stolen goods, either he would be deemed a thief or a person in possession of stolen goods. He cannot be considered to be thief and a person having the possession of stolen goods simultaneously. Reference was made by him to Article 129, illustration (a) of the Qanoon‑e‑Shahadat Order, 1984. Learned counsel Messrs Shakeel Ahmed and Riaz Ahmed, Advocates adopted the arguments, advanced by learned counsel Mr. Muhammad Aslam Chishti. Syed Ayaz Zahoor, learned counsel, followed the same line of arguments, but contributing to the stand taken by Mr. Muhammad Aslam Chishti, Advocate, he relied on PLD 1970 SC 282, PLD 1979 Quetta 213 and 1988 PCr.LJ

449. Mr. K.N. Kohli, learned counsel, besides adopting the arguments of learned amicus curiae, also referred to PLJ 1992 (Cr.C.)

299. Mr. Tariq Mehmood, learned Deputy Attorney General, candidly conceded that in view of the judgment of Hon'ble Supreme Court reported in 1992 SCMR 108, the accused cannot be convicted and sentenced simultaneously under subsections (8) and (89) of section 156 of the Customs Act. I have heard the parties' counsel and have also gone through the relevant judgments and the law on the subject. In my opinion, the judgments reported in 1981 PCr.LJ 958 and PLD 1986 SC 192, are applicable with all force to answer the proposition. Although in 1992 SCMR 102, exactly the same proposition was under consideration, but with reference to Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. As I have already reproduced the relevant paras from the other judgments, therefore, it would also be appropriate to reproduce the relevant para from this judgment as well:‑‑ The above discussion persuades me to hold that if a person has been found without lawful excuse in possession of smuggled goods etc. he would be dealt with under subsection (89) of section 156 of the Customs Act and if the evidence produced by the prosecution establishes that accused was smuggling the goods outside or into Pakistan, then he would be liable to be dealt with under subsection (8) of section 156 of the Customs Act. 1969 and in such circumstances, he would not be punished under subsection (89) of section 156 of the Customs Act. Thus the question formulated above, stands replied. Therefore, appeals, now will be fixed for hearing on merits, separately. A.A./654/Q Order accordingly,