1977 P Cr (PLP)

3. Mr, Azizullah K. Shaikh, the learned counsel appearing for the applicant, has argued that from the statement of witnesses recorded under section 161, Cr. P. C. and supplied to him, after the charge‑sheet was submitted in Court, it is evident that the two recoveries were made at two different places and on different occasions from two different accused. There is no evidence to show that the alleged offence was committed in the course of the same transaction. In order to clarify this position, Mr. A. S. Shaikh, the learned Assistant Advocate‑General for the State, admitted that the recovery made from the applicant, was outside, on the road, and the `thans' that were secured from the booth of the car occupied by the applicant, were also of a different quality and kind, than those, that were secured from inside the house occupied by the co‑accused Mohammad Farooq. It was further noticed that the present applicant Shafi Ahmed was not residing in the same house. He was in fact, residing at Ratan Talao, the address mentioned hereinabove. Mr. Azizullah K. Shaikh has therefore contended that the applicant would be liable only for the 15 `thans' of foreign cloth, which were alleged to have been recovered, from his car, the valuation whereof was certified by the Valuation Officer, to be Rs. 1,350 only. He has further referred me to a Bail Application No. 1030 of 1976, filed on behalf of Mohammad Farooq and Shaft Mohammad the present applicant, wherein it was conceded by the State that the value of the smuggled cloth recovered from the booth of the car driven by the applicant was about Rs. 1,356.

4. During the arguments Mr. A. S. Shaikh, learned Assistant Advocate‑General, had taken two adjournments, to ascertain from the Customs Department, the value of the 15 `thans' and the fact, whether, this recovery from the applicant, could be connected with the other recovery, from the house, occupied by the co‑accused Mohammad Farooq, as being one, in the course of the same transaction. While referring to the statement of all the five witnesses, shown in the charge‑sheet, he conceded that there was no evidence to connect the two recoveries to indicate the commission of the offence in the course of the same transaction.

5. In view of this factual aspect Mr. Azizuallah K. Shaikh has therefore contended that since the valuation of the seized cloth was less than 5,000 rupees, the Court of the Special Judge therefore, will have no jurisdiction, to take the cognizance of the offence. He has referred me to section 156(89) which reads as under: ‑ "If the value of such goods does not exceed Rs. 5,000 such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding 10 times the value of the goods ...." Reference was also made to the amendment in clause (89) of section 156 of the Customs Act, 1969 (Ordinance No. IV of 1977). The amendment reads as under: - "such goods shall be liable to confiscation and any person concerned in the offence, shall be liable to a penalty not exceeding 10 times the value of such goods; and upon conviction by a Special Judge to imprisonment for a term not exceeding 6 years, and to fine, not exceeding .10 times the value of such goods arid It the Special Judge in his discretion so orders also to whipping." By virtue of the amendment, the wording of the previous clause reading as "if the value of such goods does not exceed Rs. 5,000 such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding 10 times the value of the goods" were substituted by the amendment. At one stage Mr. Abdul Sattar Shaikh, had pointed out that the applicant could be prosecuted in Court, even, if the value of the contraband goods was less than Rs. 5,

000. To my mind this proposition had no force because under Article 12 of the Constitution, "No law shall authorise the punishment of a person, for an act or omission that was not punishable by law at the time of the act or omission;". During the pendency of this case in the Court of the Special Judge (Customs and Taxation), Karachi, the Amending Ordinance came into force, which had made the material change in clause (89) of section 156 of the Customs Act, as is mentioned hereinabove. The right to try and punish, is a vested right. The original clause (89) in the Act, as it existed before the amendment, as well as, the amendments itself are matters of substantive law, as distinguished from the procedural law. When the substantive law is altered during the pendency of the proceedings, the rights of citizen are always decided according to law, as it existed, when the act was committed, unless, of course, the amendment clearly mentions for its retrospective application. Several authorities were cited, but the basic legal position remains the same, and, therefore, it is needless to refer to them. This is therefore not a procedural law, but substantive law, which affects the rights of the individual. I do not think that the Amending Ordinance is made to have retrospective application in this case.

6. Ordinarily, the proceedings in criminal cases should be allowed to proceed in the trial Courts, and they should vary rarely be interfered with under section 561‑A, unless, of course, where it is apparent that the proceed ings in the trial Court are liable to amount to an abuse of the process of the Court, or otherwise to secure the ends of justice. In this respect, I would refer to the case of Mst. Hamida (P L D 1973 Kar. 573). The relevant portion is, at page 482, paragraph 5: "It was argued before me by learned counsel for respondent No. 2 Mr. Muhammad Suleman Qureshi and the Assistant Advocate‑General, who appeared for the State, that so long as there is an allegation which, if believed could constitute an offence, I ought not to quash such proceedings at this premature stage, but allow them to go to trial, the result depending upon the appreciation of the evidence that is recorded at the trial. Now while I agree that the most usual case which would call for quashment under section 561‑A of the Cr. P. C. would be a case, where the allegations themselves made constitute no offence at all, that section in its own terms does not state any thing of the kind. Indeed as I understand that section, it purports to give no new powers to the High Court, but re‑arms an inherent power already existing "to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." Obviously to permit a prosecution to continue upon allegations, which do not constitute an offence can only be an abuse of process, but it does not, I think, follow that whenever such an allegation exists, however flimsy the evidence which supports it and however transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of a trial, often prolonged in such matters. I cannot, but think, that if a case which cannot possibly succeed is allowed to continue this must result in harassment of the accused persons whose acquittal is in any way certain and that this would be an abuse of the process of the Court and that in any event under section 561‑A, an order to quash the proceedings would be one, which would secure the ends of justice. The ends of justice do not, I think, contemplate the force of a trial which can result in an acquittal only." It will further be noticed that in that authority, reliance was also placed ore the decision of the Supreme Court case of M. S. Khwaja v. The State (P L D 1965 S C 287), and the relevant portion, I would refer to, is at page 291 which reads as under: ‑‑‑ "To quash a judicial proceeding in order to `secure the ends of justice' would involve a finding that if permitted to continue that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an `abuse' it would be necessary to see in the proceedings, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results." From the perusal of the charge‑sheet, it appears that the present applicant had been challaned in the Court alongwith the two other co‑accused namely, Mohammad Farooq and Mohammad Hanif. Could the case of the present applicant be separated and proceedings against him ordered to be quashed. Therefore reference was made to the statements recorded under section 161, Cr. P. C. of all the prosecution witnesses, and the case of the prosecution could not possibly be stretched beyond what was stated therein. Mr. Abdul Sattar Shaikh, Assistant Advocate‑General had candidly conceded that there was no link between the two recoveries made by the Customs Staff. At this stage, Mr. Azizullah K. Shaikh had referred to an identical case, Petition No. K‑53 of 1976 certified copy whereof, was produced, ‑in which the proceedings were quashed by the Supreme Court, in respect of 6 out of 11 accused. I would in support of this contention refer to the last paragraph of the judgment. "As regards the remaining six appellants, the learned counsel appearing for the State concedes that the only evidence available to connect them with the crime consists of the disclosure made by the two respondents who were caught by the Coast Guards at the spot. The disclosure is obviously not admissible in evidence, and even if these respondents repeat the same information at the trial, it would at best be available for consideration under section 30 of the Evidence Act, but by itself it could not provide a basis for the conviction of the appellants named by the respondents as being concerned in the same transaction. In view of this position the learned counsel for the State was willing to concede that there was no possibility whatsoever of a conviction to be recorded against the six appellants who were not identified by the officials of the Coast, Guards, and against whom there was no other evidence at all. In view of the position emerging from the evidence as discussed above we are of the opinion that it should not be proper for us to quash the proceedings in so far as the three appellants named by the two witnesses are concerned. We would accordingly dismiss this appeal in so far as the appellant was and, Babu Jan and Haji Ahmad are concerned, but would accept the same with regard to the remaining six appellants and quash the criminal proceedings pending against them in the Court of the learned Special Judge, Karachi." I have, on the basis of the above discussions, reached the conclusion that the recovery from the booth of the car occupied by the applicant, is distinct and separate and has no connection with that of co‑accused Farooq. Since the valuation of the cloth as seized, for which the applicant is being prosecuted is less then Rs. 5,000 I am of the view that the Court of the Special Judge (Customs and Taxation) will have no jurisdiction to try the offence. 1 wills therefore, quash the proceedings against the applicant, at present pending in the Court of the Special Judge (Customs and Taxation), Karachi, in SIB 582/76 Case No. 102/76 and allow this application. Petition allowed.