1991 PLP 1823 (MLD)

8. Section 2(s) of the Customs Act, 1969, defines the word `smuggle' in the following words:-- "`(s) "smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon- (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or (ii) manufacturers of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed five thousand rupees in value; or (iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly."

9. A bare reading of clause (s) of section 2 of the Customs Act, 1969, would show that an attempt, abetment or connivance of smuggling also falls within the above definition and is thus punishable under section 156(1)(8) of the Customs Act, 1969. What constitutes an attempt is, however, a mixed question of law and facts depending upon the circumstances of each case. In the case of Abdul Majid v. The State reported in 1973 S C M R 108, the ingredients necessary for an attempt to commit a crime were examined and it was observed:

"According to the accepted concept of attempt as an indictable crime, it means an intentional act with a view to attain a certain end but which is not achieved because of circumstances independent of the will of the offender who makes the attempt. Whether any given act or series of acts constitute a criminal attempt punishable under the penal law is a question of fact in each case, depending on the circumstances surrounding the act. More specifically, an attempt to commit a crime consists of the following elements:-- (i) The intent to commit the crime. (ii) Performance of some act towards the commission of the crime, and (iii) Failure to consummate its commission on account of the circumstances beyond the control of the offender. The test whether there has been an attempt to commit a crime, is a factual one by reference to the three ingredients set out above."

10. In the case of Crown v. Muhammad Rafique Safdar and others, reported in P L D 1952 Sindh 28, the question of attempt was considered in relation to the Sindh Essential Commodities (Control) Order, 1947, and it was held:

"In my opinion, it is not at all material what the accused intended to do, or would have done if not stopped: but what is material is, whether up to that stage they had done any act which would be criminal and which would form part of the offence intended to be committed."

11. As a matter of law preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order to prove that a person may be shown, first, to have had an intention to commit the offence, and secondly, to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus re-us is a question of law which has led to difficulties because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. (See the case of Malkiat Singh v. State of Punjab, reported in 1961(2) S C R 662, referred in the Law of Central Excise, Customs, Gold Control and Allied Laws by O.P. Tewari, 1989 Edition).

12. The words "preparation" and "attempt" were again distinguished by the Supreme Court of India in the case of State of Maharashtra v. Muhammad Yakub and others, reported in A I R 1960 (sic) SC 1111 and P.T.C.L. 1983 (CL) 64: In the elegant words of Sarkaria, J:

"Well then, what is an "attempt"? Kenny in his `Outlines of Criminal Law' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control:" This definition is too narrow. What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit, first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be `criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhaanand Mishray v. State of Bihar (1962) 2 S C R 241 there is a distinction between `preparation' and `attempt'. Attempt begins where preparation ends. In sum a person commits the offence of "attempt to commit a particular offence" when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."

13. In the case of Central Board of Revenue and another v. Khan Muhammad, reported in P L D 1986 SC 192, our own Supreme Court distinguished these expressions in the following words:-- "The cases in which mere preparation to commit an offence has not been made punishable present the problem to determine whether the acts or omissions committed by the culprit constitute merely preparation or amount to attempt. Often times in such cases the transition between what is preparation and an attempt is so gradual as to be almost imperceptible. The preparation to commit an offence consists in devising or arranging the means or measures necessary for the commission of the offence. It implies the taking of previous measures necessary for the crime. But it is difficult to give an abstract definition of the term "attempt", in juridical context, for it is largely a mixed question of law and fact depending upon the circumstances of each particular case. Lord Parker, C.J., in Devey v. Lee (1968) 1 Q.B. 366, has pointed out that the term has been described variously in the authorities but he has preferred to adopt the definition given in Stephen's Digest of the Criminal Law, 5th Edition (1894), which is as follows:-- "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which could constitute its actual commission if it were not interrupted." Another definition referred to in this case was from Archbold's Criminal Pleading, Evidence and Practice, which reads as under:

"It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime. It seems that the modern view of attempt does not make it necessary that the interruption which aborts the consummation of the crime should be the penultimate act for the completion of the crime.'

14. Applying the above test to the facts of the present case, it appears to me that it was a case of `preparation' only not punishable under section 156(1)(8) of the Customs Act, 1969. The record is silent about the actual place where the appellant was apprehended. Admittedly no boat was seen in the vicinity. There is no indication about the place where the foreign ship was anchored. Major Saeed Akhtar who according to F.I.R. (Exh.6/B) had received the secret information was also not examined. Beyond the stage of preparation no steps necessary to export the powder of heroin were taken by the appellant. He had in fact committed an offence punishable under Article 3/4 of The Prohibition (Enforcement of Hadd) Order, 1979, which is more serious offence, but he was not prosecuted for that offence which is triable by an ordinary Criminal Court.

15. For all the above reasons the impugned conviction cannot be sustained and is set aside. The appeal is accepted and the appellant is discharged from his bail bond. MA.K./A-1067/K Appeal accepted.