1979 P (PLP)

Usman Ghani Rashid, Addl. A: G. for the State. Abul Khair for Custom (Coast Guards). Dates of hearing : 24th and 25th September 1978. This is a petition antler section 561-A, Cr. P. C. for quashment of the proceedings of a criminal case for offence under section 156(8) (77)(89) of the Customs Act, 1969 in the Court of Special Judge, Customs & Taxation, Karachi. The facts in brief are that there were some civil suits pending between Eastern Film Studios Limited, Karachi and Petitioner Saifuddin Contractor. On 23-6-1973 M. Subhan Siddiqui, Accountant Eastern Studios Limited, Karachi sent information to Headquarter, Pakistan Coast Guards, addressed to the Director-General that the petitioner indulged in smuggling of goods ; that he evaded payment of Income-tax and he lent money at exorbitant rates of interest; that he was financing film productions tend smuggling timber ; that if his business premises and residence were searched further evidence would become available regarding the acts and deeds of the petitioner. The house and bank-lockers of the petitioner were accordingly searched and articles presumed to have been smuggled were recovered, namely, Indian films, gold, cloth and wine of the total value of Rs. 14,000.

2. The petition was originally filed on the legal grounds that the Pakistan Coast Guards were not competent under the law to arrest, investigate and challan the petitioner for these offences in the law Courts; that the cognizance taken on the charge-sheet was, therefore, without jurisdiction. A number of petitions had been filed on the same ground that the Coast Guards could not investigate into the Customs Offences or sent up charge-sheets with regard to the incidents which occurred within the city limits of Karachi. These petitions came up before a Division Bench of this Court. By Judgment dated 19-7-1978 in Const. Petitions No. 444/74 etc. it was held that the Coast Guards had jurisdiction to investigate cases within the municipal limits of Karachi outside the Port area and they could also send up charge sheets in respect of customs offences occurring in Karachi, outside the limits of the Port area.

3. These points having thus been decided Mr. Muzaffar Hussain Shah on behalf of the petitioner has now urged that the Special Judge (Customs) had taken cognizance in respect of this charge-sheet without jurisdiction because the petitioner had already been prosecuted and acquitted by the competent Courts in respect of almost all the items said to have been recovered from his possession. It has been pointed out that the Indian films recovered from the possession of the petitioner were (i) Rakhi and (ii) Chalti ka naam gari. That the petitioner was prosecuted before the military Court in 1963 and convicted for the possession of these two films but the conviction was set aside by Commander Ist Corps and he was acquitted. These films were returned to him which were subsequently recovered as subject-matter of this fresh case. Mr. Muzaffar Shah has categorically stated that besides these two films there are no other films recovered by the Coast Guards from the petitioner. The learned counsel for the petitioner has then stated that there were two books meant for the married people called marriage Manual. For these books also the petitioner was prosecuted in the Court of Assistant Commissioner & S. D. M., Nazimabad & S. D. M., Nazimabad, and he was discharged on 24-10-1973. It has been pointed out that 180 U. S. Dollars were recovered on search of the house of the petitioner. In respect of this foreign currency the petitioner had already been prosecuted before the F. E. R. Tribunal, Karachi and he was acquitted by judgment dated 26-8-1965. There would thus remain the items of gold, cloth and wine. The learned counsel for the petitioner has stated that by gold was meant some gold coins belonging to the wife of the petitioner; the cloth was in fact the wearing apparel of his wife consisting of lungies and sarhies and stitched suits. That the petitioner's wife had retained her Iranian nationality and she could keep the foreign exchange and such articles without a declara tion in those days.

4. It has thus been argued that under section 403, Cr. P. C. a person who has been tried by a Court of competent jurisdiction and convictr6 or acquitted cannot be liable to be tried again for the same offence, or on the same facts for any distinct offence for which a separate charge might have been made; that such prosecutions are also barred on the principle of doubt jeopardy under Article 13 of the Constitution and section 26 of the General Clauses Act. Mr. Muzaffar Hussain Shah has then argued that criminal prosecutions cannot be launched in respect of any goods of foreign origin found in possession of a person without payment of the customs duty. That under section 2-S of the Customs Act smuggling has been defined, "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". The learned counsel has shown that only such items can be subject-matter of smuggling which are notified as such under section 2(S) as held in P L D 1978 Kar.

774. That a notification under section 16 bf the Customs Act restricting importation and exportation of goods was semething different from a notification under section 2(8) enumerating the goods which could be subject-matter of smuggling as held in the above decision; that wine not having been notified as such at the time of the alleged recovery could not thus be included as an item of smuggled goods in charge sheet for offence under section 156 (89). This was specially so because under a subsequent amendment the value of such goods should exceed Rs. 5,000 before a person could be prosecuted for the said offence. A condition precedent to the taking of cognisance would be a certificate of valuation issued by the competent customs authority.

5. Mr. Abul Khair on behalf of Pakistan Coast Guards has argued that besides the two films for which the petitioner was prosecuted there were 5 other films said to have been recovered from one Zahiruddin. Mr. Abul Khair has not, however, been able to show whether Zahiruddin has been sent up as a co-accused or whether he has been made a witness against the petitioner in respect of those films. Regarding the books and the foreign exchange Mr. Abul Khair has nothing to say. He is, however, of the view that for possession of foreign cloth and wine the case should be maintainable. But according to Mr. Muzaffar Shah the foreign cloth consists of wearing apparel of the wife of the petitioner and one suit piece of 3 yards, while the so-called wine consists of about 3 bottles. As held in Shafi Ahmed v. The State (1977 P Cr. L J 717) a person could not be held liable for possessing 15 thans of foreign cloth valued at Rs. 1,

350. In view of the amendment of section 156 (89) imposing a limit of valuation of such goods to be above Rs. 5,000 in those days. Similar view was taken in Musharaf Khan v. The State (P L D 1978 Pesh. 113) where there was no material on record to show that the value of seized goods exceeded Rs. 5,000, possession of such goods was held not to be a criminal offence triable by Special Judge.

6. Even on principle, any information against a person coming from interested quarters should be acted upon after proper care and caution so that no one is unnecessarily harrassed by indiscriminate searches. A person's home is his castle. Privacy of a home should not be violated as it is safeguarded even under the Constitution. The taxation laws enacted for prevention of smuggling and collection of due taxes from tax evaders cannot be used in a manner that may interfere with the peaceful life of the citizens. This would amount to stretching the law too far. Under these circumstances the present prosecution filed against the petitioner in the Court of the Special Judge, Customs, 'would appear to be hasty, vexatious and without jurisdiction. The petition is accordingly accepted and the proceedings are hereby quashed. Petition accepted.