P L D 1968 Lahore 1183 (PLP)

ping. (b) If any goods, the importation and exportation of which is for the time being prohibited or restricted under this Act, be imported into or exported from Pakistan contrary to such prohibition or restriction; or Such goods shall be liable to confis cation; and any person concerned in any such offence shall be liable to a penalty not exceed ing five times the value of the goods. The only difference in the two provisions as contained in the first column of offence is that item (8)(a) refers to prohibition or restriction by or under the Act whereas 8(b) is confined only to prohibition or restriction under the Act. The word 'by' as used in the earlier provision has been omitted here. The obvious difference in the two provisions contained in item 8(a) and 8(b) is that in the latter provision only such prohibition and restrictions are contemplated as may be imposed by notification issued under section 19 of the Act. This does not include restrictions and prohibitions directly imposed by the provisions of the Act itself) as envisaged by section 18 etc. The penalties mentioned in 8(a) also envisaged the trial and a conviction of an accused person by a Magistrate, which is not contemplated by the provision contained in 8(b), there being no reference to a trial of an accused person before a Magistrate. Since, in the instant case petitioners were tried and convicted by a Magistrate, it would, therefore, be wrong to say that they were only liable to a sentence of fine and not of imprisonment. Coming to the next contention based on the alleged discrepancies in the statements of the P. Ws., it may be observed straightaway that the learned trial Magistrate had discussed in minute detail, all the discrepancies urged before him which were also duly considered by the learned Additional Sessions Judge in the appellate judgment. Having myself gone through the record, I see no reason to make a different assessment of the evidence from the one made by the Courts below. It was reiterated before me that Hav. Muhammad Khan (P. W. 1) could not give an exact time of the preparation of the recovery memos. and that going back on his previous statement that he had not signed them, the witness in the same breath vaguely added that the recovery memos had been signed on the night off, recovery. Further that he could not tell who else had signed them. This contention was rightly overruled by the learned Magistrate, after a proper examination. The clean fact that the petitioners were rounded up by a strong contingent of Sutlej Rangers and were caught red‑handed along with a heavy consign ment of cinnamon which being very valuable could not be planted in such a large quantity coupled with the fact that the P. W. entered the witness box after more than fifteen months of the occurrence, the alleged omission or discrepancies completely lose their force. Equally insignificant is the discrepancy in the statement of Purvez Ahmad (P. W. 5) and Abdus Saleem (P. W. 6) on the point that the recoveries were made from the petitioners, while they were still carrying bundles on their heads or while they had dropped them on the ground. It was held in Ghulam Safdar v. Crown (P L D 1956 F C 126) that the fate of a criminal case does not depend on the existence of vague discrepancies in the statements of the witnesses.

7. In answer to the next contention that cinnamon being imported or smuggled from India could not have been sought to be exported to that country, it was argued by the learned counsel for the State that the argument proceeded on wrong premises inasmuch as there was nothing to suggest that cinnamon though not grown in Pakistan is ever imported from India. On the contrary, it was argued that cinnamon was imported by Pakistan from Indonesia and was not grown in India whose requirements were also met by the import of this commodity and as such there was nothing surprising if an attempt were made for an export of this commodity in an illegal manner contrary to the restrictions imposed on it by Pakistan. The contention proceeded on an erroneous assumption which did not find any basis in the record.

8. I now proceed to examine the last and the most Important contention raised by the learned counsel for the petitioners. It may be readily conceded that no evidence whatever was led by the prosecution to show that a complete prohibition or restriction on the export of cinnamon to India had been imposed by the Government of Pakistan. Notwithstanding the fact, however, that neither during the trial nor before the Court of appeal in the first instance did the petitioners take this plea, in view of the elementary principle of administration of justice that the onus to prove its case lies on the prosecution, the learned counsel was perfectly within his right to raise this plea even for the first time at such a late stage, which must needs be thoroughly examined. Export Trade Control Notification No. S. R. O. 11, dated 15th January 1959, was issued by the Government of Pakistan prohibiting the export of goods specified in the schedule to any place outside Pakistan, excepting goods covered by an export licence, etc. mentioned in. parts (a) to (f) with which we are not concerned in the instant case. Sixteen categories of articles are listed in the schedule of which Nos. 1 and 6 being relevant are reproduced below: "

1. All `imported goods' in their original or unprocessed form.

6. Chillies, garlic, ginger, onions, pepper." It was contended on behalf of the State that the restriction on the export of cinnamon with which we are concerned in the instant case is covered by the first item of the schedule, cinnamon being an imported goods. Unfortunately, the expression `imported goods' has not been defined anywhere nor is there any comprehensive catelogue of imported goods available. It is not difficult to believe that some of the goods which are included in the category of imported goods today may not so remain tomorrow owing to a change in the import policy. Two questions would, therefore, fall for determination in this regard. Firstly, whether cinnamon was an imported goods at the relevant time whose export was hit by the aforesaid notification E No. S. R. O. 11, and secondly, assuming that the export of cinnamon was prohibited being hit by the aforesaid notification, whether it was still obligatory on the prosecution to lead evidence to show that the prohibition did in fact exist at the relevant. time, which could easily be done by placing on the record the reevant notifications.

9. Since, as stated earlier, the existence of such a prohibition appears to have been presumed by the petitioners, who did not raise this plea at any stage, either during cross‑examination of the P. Ws. or otherwise by leading evidence in defence, I am inclined to think that once it is established that cinnamon was an "imported goods" at the relevant time, on whose export a ban was imposed by the Government, the omission on the part of the Government to place on the record the relevant Notification in the circumstances would not be fatal to its case. It may be borne in mind that it was not the case of the defence that "cinnamon" was produced in Pakistan and that the seized consignment was not covered by the expression "imported goods". S. A. Haroon and others v. Collector of Customs, Karachi (P L D 1959 S C (Pak.) 177) the authority relied upon by the learned counsel for the petitioners proceeds entirely on different and distinguishable facts and is not helpful to them. In that case, some consignments of gold were seized inter alia by the Customs authorities, Karachi and were confiscated by the orders of the Collector of Customs on the ground that the possessor thereof had failed to prove their lawful import in the country. The aggrieved parties filed writ petitions under Article 98 of the Constitution in the Karachi Bench of this Court. There was a difference of opinion between the two judges sitting in the Division Bench on the question of onus of proof which under section 177‑A of the Sea Customs Act was purported to have shifted to the person from, whose possession the goods were seized. The matter was then referred to a third Judge who took the view that the law cast a duty on the Custom authorities seizing the goods to show that they bad been actually imported and not merely that they answered to the description of goods mentioned in the Notifications relied upon. In regard to the seizure of the gold, it was held by the learned Judge that the Collector had erroneously assumed that the goods bad been imported, without adducing material in support of that allegation.. Consequently, writs of certiorari were issued. Appeals on behalf of the Federation of Pakistan and Collector of Customs were then taken to the Supreme Court. The respondent also filed civil appeals which being connected matters were simultaneously disposed of by their Lordships of the Supreme Court. Their Lordships had an occasion to refer to an earlier case, Federation of Pakistan v. Sardar Ali and others (P L D 1959 S C 25) which had arisen before the introduction of item 81 of section 167 and section 177‑A, which were first inserted by the Customs Act (Amendment Act) of 1956. It was not proved to their Lordships' satisfaction that the consignments of gold seized by the Customs authorities were unlawfully imported, simply because the latter so opined keeping in view the comparative degree of the fineness of gold. It was observed by Cornelius, J. (as he then was) that gold being indestructable commodity may go out of circulations as bullion through its conversion into orna ments and it was quite possible that a considerable proportion of gold in circulation in this country even as bullion may have been m the country from prehistoric times. Their Lordships dismiss ing the criminal appeals, allowed the civil appeals quashing the orders of the Collector of Customs who was directed to hold a fresh inquiry. After having obtained the report of the essayist of the Pakistan mint, which was based on a comparative examination of the degree of fineness of the seized gold, and of locally refined gold, the Collector stuck to his earlier position and the matter once again came up before their Lordships of the Supreme Court, reported as P L D 1967 S C

458. It was found that the Collector's order was not sustainable in law on a fair consideration of the material before him, which could not give rise to a reasonable inference of the goods having been imported from abroad.

10. The learned counsel for the petitioners relied heavily on some observations of their Lordships of the Supreme Court made in Messrs S. A. Haroon and others v. The Collector of Customs, Karachi and another. While trying to interpret item No. 81 of section 167 on the question of the onus of proof, their Lordships also examined the provision contained in section 167‑A, both of which were introduced simultaneously in the Sea Customs Act. Although there is no reference to the application of item 81 of section 167 of the Act to the instant case, and the petitioners were convicted only of an offence under item 8, yet item 81 is attracted with full force as would be abundantly clear from the provision reproduced below: "81.‑If any person, without lawful excuse, the proof of which shall be on such person, acquires possession or, or is in any way concerned in carrying, removing, deposit‑ ing harbouring, keeping or concealing, or in any manner dealing with any goods, which have been unlawfully removed from a warehouse, or which are chargeable with a duty which has not been paid or with respect to the importa tion or exportation of which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened; or such goods shall be liable to confiscation; and the person concerned in such offence shall, on conviction before a Magis trate, be liable to imprisonment for a term not exceeding six years, or to a fine not exceeding five times the value of the goods or to both and in addition shall also be liable if the Magistrate in his discretion so orders, to the punishment of whipping." A perusal of item 8(a) and item 81 would clearly show that the penalty in both the cases is precisely identical and further than under item 81, the onus to prove the lawful possession of the cinnamon in question, which was obviously seized on the basis of a reasonable suspicion of the contravention of a prohibition or restriction on its exportation had shifted to the petitioners. This aspect of the matter appears to have been ignored by the Courts below. However, the following observations from the judgment of S. A. Rahman, J., the present Chief Justice of the Supreme Court, would clinch the issue: "All rules of interpretation have been devised as aids to the discovery of the legislative intent behind an enactment. Where the words are plain and unambiguous that intent can be best judged by giving full effect to the ordinary grammatical meaning of those words. But when this is not the case, an attempt should be made to discover the true intent by considering the relevant provision in the context of the whole Act in which it appears and by having regard to the circumstances in which the enactment came to be passed. The previous state of the law the mischief sought to be suppressed and the new remedy provided are relevant factors to be given due consideration. An interpretation which is calculated to suppress the mischief and advance the remedy is likely to be in accord with the intention of the Legislature. It would not be far‑fetched surmise that the enactment of item 81 of section 167 was found necessary in order to deal with the evil of smuggling which had assumed large proportions in the country. There can be no other object in bringing mere possession of the relevant type of goods within the pale of this penal law, and presumably this measure was resorted to, as smuggling is a surreptitious process and the public authorities could not be expected to adduce proof that the goods in question had been brought across the customs frontiers, without payment of duty or the legal sanction of a permit from the relevant authority. Of course the goods in question may have changed hands and Vie last possessor may be called upon, on this interpretation, to trace the history of the goods in order to satisfy the authorities that he was immune from prosecution. The duty may be a hard one, but, if the legislative intent is clear, a construction which facilitates the evasion of the statute, would not be countenanced. The Court ought not to be influenced or governed by its own notions of unreasonableness or hardship except as guides for a choice between two equally possible interpretations. Individual hardship not infrequently results from enanctments of general advantage, as Maxwell remarks in his well‑known book on the Interpretation of Statutes, at page 208, Tenth Edition. All these aspects of the matter, therefore, have to be kept in mind while analysing the tenor and effect of item 81". . "I see no pressing necessity to import into the provisions of item 81 of section 167 the implied ingredient of mens rea such as was contended for by Mr. Brohi. Provided that the goods in question answered to the description of prohibited or restricted goods under the relevant notification, and further, in the case of exportation, either the goods are found across the customs barrier in the territorial waters or in places where their location might lead to a high degree of probability that they were brought there for the purposes of export, the prosecution may be aided by an `evidential presumption' so that the onus could fairly and legitimately be placed on the possessor of these goods to prove lawful import or export, as the case may be. The burden may be discharged in the case of goods that prima facie answer the description of imported goods, by establishing either that the goods were imported before the imposition of the ban or restriction or if imported after the notification had been issued, that they were covered by a regular permit and that the necessary duty had been paid thereon, or even that they were not imported at all e. g. in the case of bullion locally prepared from gold ornaments. In the case of goods found in places from which an inference of intention to export might arise, the possessor might escape liability by offering a satisfactory explanation of the presence of goods in such a place, or by adducing proof that necessary permission had been obtained for their export. On this view, the decision in Sardar Alf's case does not appear to me to require reconsideration." It may be observed that their Lordships' earlier ruling in Sardar Ali's case was based only on an interpretation of item 8 of section 167, when mere possession of the goods that might have been initially brought into the country in defiance of a prohibition or restriction or without payment of the necessary duty was not within the mischief of that provision. In the instant case, where the Inspector Sutlej Rangers on receipt of secret information of an attempt to smuggle cinnamon had posted a picket near the Indian Border and the petitioners were caught red‑handed along with the consignment of cinnamon in question, there can be hardly an occasion to draw an analogy with the circumstances of the precedent case. In the circumstances of this case, the onus had definitely shifted to the petitioners who had failed to discharge the same. It may be pertinent to point out that the mere existence of reasonable suspicion of the contravention of a prohibition or restriction on the export of the goods in question he should be good enough to shift the onus on the person found to be in possession of the same, to prove that his possession is lawful. Obviously the petitioners failed to discharge that onus and as such were rightly convicted by the Courts below. Even otherwise, a perusal of the First Schedule relating to import in the publication of the Ministry of Commerce named `Pakistan Customs Tariff' (Page 10) clearly shows that cinnamon is an "imported Goods".

11. In consequence, the petition fails and is hereby dismissed.

12. Before parting with this case, I would however like to make two observations, firstly that the prosecutors should take meticulous care in cases of this nature to adduce necessary evidence to show that a prohibition or restriction did actually exist at the relevant time, by bringing on the record the relevant t notifications etc. Likewise, the Courts should also insist on such an evidence which alone can lay a foundation of conviction which should by no means proceed on mere assumptions. Secondly, the Central Law Ministry might consider the advisability of the insertion in the relevant laws of a precise definition of the expression "imported goods" for a particular period of time which of course, could be subject to variations, so that it is not left to the Courts to inferentially and inductively draw their own conclusions. S. A. H. Petition dismissed.