P L D 1958 (W (PLP)

S. A. RAHMAN, C. J.‑This order will dispose of two Writ Petitions Nos. 365 and 506 of 1957, and Criminal Revision No. 21 of 1957. Identical .law points are involved in them and it would be convenient to deal with them together. 2. In Writ Petition No. 365 of 1957 the relevant facts are that the Lahore Police (Crime Branch) raided .the shop belonging to the petitioner in Lahore, on the 9th of July 1956 and took possession of gold bullion weighing 1202 tolas, 598 currency notes of Indian currency of the denomination of Rs. 100 each and some demonetised coins, purporting to act under, section 167; Items 8 and 81, of the Sea Customs; Act (VIII ‑ of 1878), (hereinafter referred to as the Act). They also arrested the petitioner and one, Abdul Ghafur Memon, who was present on the premises at the time. Subsequently, the two persons were released on Fail on the 10th of July 19'56. The police, however, found no case for putting into Court. They then forwarded the articles seized to the Customs Collector for adjudication under section 182 of the Act. On the 13th of August 1956 the Customs Collector, respondent No. 1 in the case, issued a notice to the petitioner calling upon him to show cause within ten ''days from the date of the notice as to why penal action should not be taken against hint under section 167 (8') and (8 l) of the Act read with section 9 of the Land Customs Act. It was alleged in the 'notice' that the petitioner Was found in possession of contraband articles, namely, gold bullion and Indian currency, and further that he was about to smuggle out of Pakistan the demonetised silver coins which were liable to confiscation in' consequence. The Customs Collector eventually passed : an order directing the confiscation of 1202 tolas gold bullion and gave option to the petitioner under section 183 of ,the Act to redeem it on payment of Rs. 1,37,028 within four months of the date of the issue of the order. He also imposed a penalty of Rs. 50,000 on him to be deposited within one month of the order. 1s regards Indian currency notes and the demonetised coins, he found that no offence with respect to them was indicated and directed their return to the petitioner after the penalty of Rs. 50,000 had been paid I ailing such payment, these articles were declared liable to be attached under section 193 of the Act. 3. The order of the Collector has been challenged by this petition as without jurisdiction and, therefore, liable to be quashed. A prayer is made that this may be done and the gold confiscated by the petitioner directed to be restored to him. The petition has been contested on behalf of the Collector, Land Customs, Lahore, and the Government of Pakistan through the Secretary, Ministry of Finance, Revenue Division, Karachi. 4. Section 167 of the Act deals with offences and penalties imposable therefor. We are concerned with Items 8 and 81 of this section. Against Item 8, which pertains, inter alia, to the importation or exportation of any goods in contravention of a prohibition or restriction imposed under Chapter IV of the Act, the entry in the penalties' column originally stood as follows:‑ "Such goods shall be liable to confiscation; and, any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods, or, on conviction before a Court, to imprisonment for any term not exceeding seven years, or to fine; or to both ". Item No. 81 relates to the punishment of persons in possession of contraband goods, knowingly and with intent to defraud Government of any duty payable thereon, or otherwise disposing of, or dealing with them, or importing or exporting them, m the face of legally imposed restrictions or prohibitions. In the penalties' column, the entry originally stood as follows :‑ " Such goods shall be liable to confiscation, and the person concerned, in any such offence, shall be liable to a penalty not exceeding five times the value of the goods, or, on conviction before a Court, to imprisonment for any term not exceeding two years or to fine, or to both". ' By Central Ordinance VIII of 1957, the' entries in the penalties' column against these two items of section 167, were amended. The Ordinance was published on the 2nd of August 1957, and was later replaced by Act XXXIV of 1957, enacted into law on the 13th of September 1957. By these amendments, the last portions of the entries, permitting, in the alternative, the prose cution of the offender in a Court of law with consequential liability to imprisonment for seven years against item 8 and two years against Item 81, or with fine, or with both, were deleted. 5. The contention raised on behalf of the petitioner is that the unamended provisions of Items 8 and 81 of section 167 of the Act, were ex facie discriminatory between subject and subject, inasmuch as they permitted a Customs Officer, in his unfettered discretion, to choose whether a person should be dealt with depart mentally and escape only with the penalty of confiscation of goods and a pecuniary penalty or be prosecuted in a Court of law with the consequence that he might be imprisoned for a term of years not exceeding seven and be subject to a fine in addition. These provisions were represented to be repugnant to the equality clause of our Constitution embodied in Article 5 of Part 11. Reliance, in this connection, was placed on the decision of the Supreme Court in the well‑known case of war is Meah v. The State (P L D 1957 S C (Pak.) 157 ). In that case, their Lordships held that the Foreign Exchange Regulations (Amendment) Act (XXXII of 1956), which, by adding sections 22‑A, 23‑A and 23‑B to the original Act, gave power to the Central Government or the State Bank to determine whether an offender, under the original Act, was to be tried under the ordinary law (section 23), or by an Adjudication Officer (section 23‑A), or by a Tribunal (sec tion 23‑B), the three sections prescribing three different punishing authorities, each with different powers and procedure, and entailing punishments of unequal nature and description, offended against Article 5 of the Constitution and was for that reason void. It was observed by their Lordships that the amending Act made the principal Act ex facie discriminatory and infringed the subjects' fundamental right to equal protection of the law guaranteed by Article 5 of the Constitution of Pakistan. The Act conferred discretion of a very wide character upon stated authorities to act in relation to subjects falling within the same class in three different modes varying greatly in severity, without furnishing any guidance whatsoever in regard to the exercise of this discretion. It was, therefore, found that the scope of the unguided discretion was too great to permit of the application of the principle that equality was, not infringed by the mere conferment of unguided power but only by its arbitrary exercise, for in the absence of any discernible principle guiding the choice of forum among the three provided by the law, the choice must always be, in the judicial view point, arbitrary to a greater or less degree. 6. It is conceded before us that the Customs authorities dis cretion to have recourse to one of the two alternative, mentioned in the penalties' column against Items 8 and 81 of section 167 of the Act, was completely untrammelled by ,any guiding principle and therefore, it would depend on the sweet will of the officer concerned whether an offender could escape only with deprivation of certain property, and a monetary loss in the shape of a pecuniary penalty or be subjected to the hazard of a prosecution in a Court of law, entailing the consequence of incarceration in prison besides suffering the punishment of a fine. The procedures for the two alternatives are different and the discrimination contemplated by them was of a grave character. After hearing Mr. Khurshid Ahmad for the petitioner and Mr. Abdul Haq for the respondents, we entertain no doubt that the case falls within the principle laid down by the Supreme Court in Waris Meah's case and the provisions contained in the last column of Items 8 and 81 of section 167 being ex facie discriminatory would be within the mischief of the equality clause embodied in Article 5 of the Constitution and, therefore, void, by virtue of Article 4 of the Constitution, from the Constitution day. The inference is therefore obvious that on the 9th July 1956, the day of the raid the petitioner could not have been proceeded against, under these provisions. 7. The question that falls for determination, therefore, is whether the position has been rectified by the amendments introduced into these provisions by the Central Ordinance VIII of 1957, later replaced by Act XXXIV of 1957. Mr. Abdul Haq has invited our attention to Article 224 of the Constitution which continue in force, as far as applicable, all laws, in force, in Pakistan or in any part therefore having extra‑territorial validity, immedi ately before the Constitution Day, with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority. Clause (2) of this Article empowers the President of Pakistan for a period of two years from the Constitution Day, to make such adaptations and modifications in any such existing law, whether by way of amendment or repeal, as he may deem necessary or expedient for the purpose of bring ing the provisions of such law into accord with the Constitution. Any order so made, , it, is .declared, shall have effect from such date, whether before or after the date of the making of the order 'gut not being prior to the Constitution Day, as may be specified in the order. Clause (3) provides for the authorisation by the President, or the Governor of a Province, to pass similar orders in relation to that Province. Clause (4) enacts that the powers exercisable under clauses (2) and (3) shall be subject to the provisions of any Act of the appropriate Legislature. It is argued on behalf of the respondents that the Legislature had exercised its power under this provision and had, by amending Items 8 and 81 of section 167 of the Act, brought them into conformity with the equality clause by deleting one of the alternatives in the penalties column. The amendments have been made effective respectively, from the 23rd March 1956. It is, therefore, contended by Mr. Abdul Haq that the relevant provisions must be read in amended form from that date. The act, which formed the subject of investigation by the Customs authorities in the present case, pertains to the date, the 9th July 1956. It is, there fore, suggested that the action of the authorities concerned was validated by the amending law. 8. From the petitioner's side, Mr. Khurshid Ahmad invited our attention to Article 6 of the Constitution, which confers a fundamental right on all persons and, inter alia, protects them from being punished for an act which was not punishable by law when the act was done. The vires of the amending legislation is attacked on the strength of this fundamental right and it is urged that inasmuch as the provisions of Items 8 and 81 of section 167 of the Act, were void on the ground of their repugnancy to Article 5 of the Constitution on the relevant date, namely the 9th July 1956, the Legislature could not step in and make the alleged act punishable with retrospective effect, by passing a law on a subsequent date. This is in effect what the Legislature did. Mr. Abdul Haq attempted to argue that the Legislature was competent to produce this result inasmuch as clause (2) of Article 224 envisaged retrospectivity of orders to be passed by the President for bringing existing laws into harmony with the Constitution and, therefore, similar powers were enjoyed by the Legislature under clause (4) thereof. That the Legislature can pass laws with retrospective effect, which may otherwise be within its competence, may generally be conceded to be a correct pro position of law, but in the context of Article 6 of our Constitution, this proposition must be qualified by an exception. The Legis lature cannot nullify Article 6 by passing laws which have the effect of making punishable an act which was not so punishable at the time of its commission. If the interpretation pressed for by Mr. Abdul Haq were to be adopted, it would necessitate the suspension of Article 6 of the Constitution for a period of two years at least from the Constitution Day. There appears to be no warrant in any provision of the Constitution for holding that the Constituent Assembly contemplated such a result. The Constitution is an organic instrument which has to be interpreted after taking into consideration all its parts, as a whole. The fundamental rights guaranteed in Part II of the Constitution cannot be whittled away by any legislation passed subsequently to the Constitution Day. We, therefore, hold that the 'conten tion raised on behalf of the respondents is unsound and to the E extent that the amending legislation comes within the mischief of Article 6 of the Constitution, it is void. The result is that despite this amending legislation, the act of the petitioner, for which he was arranged before the Customs authorities, could not have been visited with any penalty mentioned in Items 8 and 81 of section 167 of the Act. For the purpose of the present case, those Items must be regarded as still being in an unamended form. The act in question was certainly not punishable under these Items as they stood before the amendment, in the face of Article ,5 of the Constitution and it could not be made punishable by a measure enacted even with the object of turning the illegal provisions into conformity with the Constitution, in the face of Article 6. 9. It must follow from the above discussion that the proceedings taken by the Customs authorities in the present case were wholly void and must be quashed. We order accordingly and direct that the confiscated goods be returned to the petitioner. As the case involved a complex question of law, we make no order as to costs. 10. In Writ Petition. No. 506 of 1957, Khwaja Abdul Majid and others have come with a grievance against the Collector, Central Excise and Land Customs, Lahore, and the Superinten dent of Police, Sialkot. Certain parcels of cloth sent to the peti tioners from East Pakistan in July 1955, were seized by the police at the instance of the District Food Controller Sialkot in September 1955, and retained pending adjudication under section 167 (8) and (81) of the Act by the Customs authorities. On 6th April 1957, a notice was issued to petitioners from the Collector, Central Excise and Land Customs Lahore, requiring them to show cause why penal action under section 167 (8) and (81) of Act read with section 9 of the Land Customs Act be not taken against them. The observations made above in Writ Petition No. 365 of 1957 apply of mutatis mutandis to this case as well. We, therefore, quash the proceedings taken by the Customs authorities who have, given a notice to the petitioners under section 167 of the Act and direct that the goods in question be restored to the petitioners. There will be no order as to costs. 11. In the criminal revision case, Abdul Ghani was sentenced to two years' rigorous imprisonment under section 167 (8) of the Act, by Sheikh Ajaz Ahmad, Magistrate 1 st Class with section 30 powers. Lahore, by order dated 29th February 1956, for attempt to smuggle Pakistani currency notes valued at Rs. 10,000 across the border of Pakistan and India. The currency notes were ordered to be forfeited by the learned Magistrate. The appeal of the convict was dismissed by the learned Sessions Judge, Lahore on t2th October 1956. In view of the legal position as expounded above, the revision petition must be allowed and the conviction and sentence set aside. We order accordingly. The confiscated money must be returned to the petitioner unless it can be retained by the authorities under any other provision of law. A.H. Order accordingly