P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑--I agree with the opinion delivered by my brother Rahman, but wish to add a few words. Item 81 to section 167 and section 177‑A, which were inserted in the Sea Customs Act by Ordinance III of 1954, have to be read together because they were the principal provisions of the Ordin ance which was promulgated in order to meet the emergency arising by the large scale smuggling which was being carried on at the time of the passing of the Ordinance. Item 81 makes the possession of goods chargeable with a duty which has not been paid or the importation or exportation whereof is for the time being prohibited or restricted by or under Chapter IV of the Act an offence, and the goods possessed liable to confiscation. If this item were read without reference to section 177‑A, the result would be that the possession of the goods the importation of which is restricted would be an offence even if the goods had been imported under a valid licence. This could certainly not be the intention of the legislature, and it seems to me that the possession of such goods becomes an offence only where the burden imposed by clause (b) of section 177‑A has not been discharged. To make the goods liable to confiscation or the possessor thereof liable to penalty or imprisonment, the prosecution will first have to show that the goods are chargeable with a duty which has not been paid or that their importation is for the time being restricted or prohibited under Chapter IV of the Act. Under section 177‑A, however, the possessor of the goods is entitled to raise the question (a) that duty has been paid or secured in respect of the goods; or (b) that the goods have been lawfully imported. On such defence being raised the burden shall be upon the person in whose possession the goods were found to show that duty had been paid or secured in respect of the goods or that the goods had been imported under a valid licence or before the imposition of the restriction, it being implied that on that burden being discharged the liability created by Item 81 shall not be enforceable. If that burden be not discharged, the liability would be enforceable against the person found in possession even though item 81 does not expressly say so. Where goods have been seized which can only be imported on payment of duty or under a licence, the initial duty of the prosecution is to prove that the goods are chargeable with duty or that their importation is prohibited or restricted under Chapter IV. This means that the prosecution shall have to show that the goods are of a foreign origin and the fact that they were found in the possession of a person in Pakistan would mean that they had at one time or another been imported. The importation being thus proved, it will be for the possessor to show that they were imported either before any restrictions were imposed on them or in accordance with such restrictions. If the two provisions are not read in the manner indicated above, they would lead to the absurd result that mere possession of the goods would be an offence even where they were imported in accordance with the restrictions imposed. Similarly, to put the prosecution to proof, as contended by Mr. Brohi, that not only the goods were imported but that they were imported after the imposition of the restriction, and in the case of goods chargeable with duty that they were imported without the payment of duty, would completely nullify the object of the Ordinance and instead of imposing any burden on the possessor would subject the Customs Authorities to an onus which it would be impossible for them to discharge. In my opinion, these absurd results have to be avoided and the amending provisions given reasonable scope for operation and that can only be done if both the provisions are interpreted in the manner indicated by Rahman, J. SHAHABUDDIN, J.‑--I agree with my learned brother S. A. Rahman, J. CORNELIUS, J.‑-I agree with the order proposed by my learned brother S. A Rahman, J., to the extent (1) that the criminal appeals before the Court should stand dismissed, and (2) that the civil appeal should be allowed, and the order made by the Collector of Customs in the case should be quashed. It is as regards the consequential suggestions made by my learned brother that I hold a somewhat different view, and it is therefore necessary for me to state my reasons. The law under which the authorities purported to act has undergone a change in the interval since the date of the alleged offences, but the question is not purely academic for that reason. Item 81 in section 167 of the Sea Customs Act, 1878 has been replaced by a new provision of more elaborate nature, in which some of the defects which appeared in the original item 81 (which had been introduced by an Ordinance in what was presumably as emergency) have been sought to be remedied. In part, my reason for making a separate examination of the question is that despite the amendment, there still remains a mischief within the law to be rectified. The terms of item 81 aforesaid have been reproduced in the judgment of my learned brother. Regarded as a penal provision, it has all the appearance of being self‑contained. In the present cases, we are concerned with restrictions imposed under two different statutes upon the importation of certain articles, namely, gold bullion and jewellery i.e. precious stones, semi‑precious stones and imitation jewellery. By the terms of item 81, any person who is found in possession of any of these articles was liable to a penalty not exceeding five times the value of the goods or on conviction before a Court to imprisonment for a lengthy period of years, and the goods were also liable to confiscation. Rowers of confiscation and imposition of penalty are vested in authorities under the Sea Customs Act. For the purpose of exercising these powers, it was enough for them, under item 81, in its original shape, to be satisfied that a person was in possession of gold bullion or jewellery of the kinds specified above, because they were aware that by public notification, the importation of those goods had been restricted. Under the terms of this item, no question could be raised by any person as to whether or not the conditions the restriction had been satisfied. In each of the cases before us, however, a notice was issued the persons concerned to produce documentary evidence to how that the articles in question had been lawfully imported into the country and that Duty anal Sales Tax had been paid thereon The authorities thereby evinced an intention not to apply the law in its full rigour, and by their action, so it Seems, they modified the law so as to give the persons in procession of the Offending goods an opportunity of presenting a defence to the allegation. It was thus that the provisions of section 177A of the Sea Customs Act were attracted, but as it appears, more for the benefit of the prosecution than for the benefit of the accused persons. For, by section 177‑A, as it then stood, it was provided in the relevant respect that "where in any proceedings under the provisions of this Act any question arises in respect of any goods as to whether any goods have been lawfully imported, then the burden of proof shall lie upon the person in whose possession the goods are found . . . ." The restrictions in the cases were imposed under two separate Acts. In respect of gold bullion, the restriction was imposed by a notification dated the Ist July, 1948 issued by the Government of Pakistan under section 8 (1) of the Foreign Exchange Regula tion Act, 1947, and provided that no person shall bring into Pakistan any gold bullion "except with the general or special permission of the State Bank of Pakistan". As for the, jewellery, the notification is dated the 11th June 1951. No copy (at any rate, no complete copy) of this notification is available, but the purport appears from the order of the Collector in Criminal Appeal No. K.‑1 of 1957 (Collector of Customs v. Haji Usman Haji Ghani and others) to be that by this notification the import of these articles was made subject to a licence issued under section 3 of the Imports and Exports (Control) Act, 1950. The gold in these cases was in the form of 100‑tola bars, which, we were informed, are only manufactured in this country, as all gold bullion that is imported comes in the form of 10‑tola bars. These bars are therefore the result of treatment of gold received by the refiners in other forms, which may be in the form of jewellery or other articles made of gold or may be bullion imported or otherwise. Even if they are the result of melting down of foreign imported bullion exclusively, it is possible that that bullion may have been imported before the year 1948. None of the accused persons in the 23 criminal appeals was an importer of gold bullion. When asked to show cause, it appears that they gave full details of the sources from which they had procured the gold. They were dealing in the gold openly in the bullion market, making their purchases through the Karachi Bullion Exchange. In the civil appeal of Messrs S. A. Haroon, 33 bars of gold are involved, and these were bought after due notice to the authorities sent by a number of dealers in what is known "forward bullion". With regard to the particular transaction in which Messrs S. A. Haroon were involved, it is on the record that it was a transaction subject to settlement at the end of a month commencing from 15th January 1955, vide Exh. A. The gold was bought from a named source, and it was deposited with a reputable bank, namely, the Eastern Bank Limited, who on being referred to by the authorities reported that they held the gold bars on account of Messrs S. A. Haroon and that all the bars "bear the stamp of the Karachi Bullion Exchange" vide, Exh. G/1. As for the criminal appeals, other than Criminal Appeal No. X‑1 of 1957, the accused persons in each of these cases had obtained a licence from the State Bank of Pakistan to send gold from Karachi to East Pakistan, and the parcels containing their consignments which were in conformity with the licences obtained, were seized at the Karachi air port. It is thus clear that there was no secrecy about the operations of the accused persons in any one of the criminal appeals. Gold bullion is a commodity in which transactions between merchants both for immediate delivery as well as for forward settlement take place in great numbers every day in all the major capitals and other cities of the world. Gold being still the basis of all the major currencies of the world, its price has a determining effect in relation to prices of commodities in general, as well as to the standing of different currencies. A forward transaction is normally entered into as a kind of speculation on the rise or fall of prices within the period of settlement. As for the other transactions, the object presumably was to take advantage of the price differential between the markets of Karachi and Dacca. Every external appearance conduces to the belief that each of the 23 merchants involved in the civil appeal and the criminal appeals other than Criminal Appeal No. K‑1 of 1957, were innocent of all knowledge as to the source of gold which they were trading in. The Karachi Bullion Exchange through whom the purchases were made is a body approved by and registered with the Government, and it is permissible to assume that bullion dealers engaged in buying and selling of gold for the sake of the difference in price, when dealing in gold bought through the Karachi Bullion Exch ange, do so on trust as to the origin of the gold. And as has been mentioned already, the gold which they deal in is Pakistan bullion in the sense that it is composed of gold which has under gone treatment in this country. Now, gold as a commodity is indestructible. It may be consumed i.e. it may go out of circulation as bullion through being converted into ornaments or similar valuable objects, but it loses nothing in the process in point of quantity. In so large a country as Pakistan, with a civilization going back for several thousand years, it is a very lively possibility that a considerable proportion of gold in circulation in the country, even as bullion, has been in the country almost from pre‑historic times. Gold ornaments have been discovered in excavations of cities which flourished as long as four thousand years ago. Moreover, the melting down of gold jewellery for conversion into other forms of jewellery is a process which is repeated over and over again through the centuries. It is quite possible that gold which was in circulation in this county at the period of, say, Alexander the Great, may have been since then melted down and re‑refined some two hundred times or more. In the process, the degree of purity must undoubtedly improve, and where the refinement is effective, there one would expect that over a number of centuries, the degree of purity achieved would improve to the point of almost perfec tion. I say this with reference to the view which has been expressed by a certain authority that the question whether an ingot of gold found in the country is composed of imported foreign gold or of ornaments melted down in this country, can be determined by the degree of fineness or purity which it shows. The suggestion was that the degree achieved in foreign countries is a great deal higher than that obtainable here. To that the answer might be, that if a process of refinement is repeated a great many times, even if that process be defective, the eventual product may be equal in purity with that resulting from the application of some more modern and thorough‑going process of refinement in Europe. So much for the gold bullion. As for the jewellery, that too being composed of diamonds, real, cultured and imitation pearls and some precious and semiprecious stones, has the quality of imperishability and it does not appear that anything intrinsic is available to determine whether those articles were imported into the country before or after the year of 1951. They were found in the shop of Messrs Haji Usman Haji Ghani at a raid conducted on the 13th September, 1955. It is said that the Customs authorities had received credible information that there was a quantity of smuggled goods in the jewellery shop of the accused persons. Yet, the Customs authorities in prosecuting the case appear not to have been able to produce any evidence of smuggl ing, but were content to rely upon the failure of defendants to carry the burden thought to be imposed upon them by section 177A of the Sea Customs Act. In each of these cases, the Customs authorities have acted under item 81 aforesaid and have imposed large penalties besides confiscating the gold and the jewellery, the total value of which amounts to a very considerable sum. I have already mentioned that the accused persons in the gold cases were prepared to furnish full information of the source of the gold in which they were dealing, but the authorities were content to proceed on the basis that they had failed to prove that the gold had been lawfully imported into the country. In the jewellery case, detailed explanations were offered by Haji Usman Haji Ghani as to the source of all the goods found in their shop. The diamonds were said to have been left with them by a wealthy mill-owner of Karachi, for being made up into ornaments, and the pearls and precious stones had been brought from Bombay by the accused persons at the time of partition, i.e. about the year 1947. The cultured pearls were said to have been received from Japan as samples and had been duly cleared through a regular channel, in 1955. The Collector of Customs, however, finding no licence, concluded that the accused persons had failed to prove that the goods had been lawfully imported and therefore they were guilty. In the earlier case of Sardar Ali (P L D 1959 S C (Pak.) 25), where the goods found consisted of artificial silk, kept in the godown of the accused persons a similar question arose as in the present cases and it was held as follows:‑ "The position then appears to be that item 81 of section 167 creates a new substantive offence in respect of certain class of goods, which was not contemplated by item

8. By virtue of the new section 177‑A, if any question arises in respect of such goods inter alia as to whether duty has been paid or secured in respect of then, or whether they had been lawfully imported, the burden of proof would lie upon the person in whose possession the goods were found or from whose premises they were recovered or who claimed their ownership". This view has been maintained and elaborated by my learned brother S. A. Rahman, J., in his judgment in this case. In effect the interpretation which this Court accepted in Sardar Ali's case combines item 81 of section 167 with section 177‑A of the Sea Customs Act so as to make a workable provision of law, where a restriction exists, for the satisfaction of which item 81 by itself makes no express provision. Although somewhat unusual, such a process of interpretation is not entirely unknown. It might be thought to fall within the category of beneficial construction of which the object always must be to suppress the mischief and to advance the remedy in the interests of justice. Where the goods found are of perishable nature and are clearly new, such as the art silk piece goods found in the case of Sardar Ali, the doctrine of res ipsa locuitur clearly applies, and the Customs authorities would be perfectly right to assume that the fact of importation R at a recent date is prima facie established, for which reason the burden lies upon the person in possession to establish that the importation was lawful. Such a burden is often imposed upon accused persons by provisions of law applying controls to various branches of trading and other activity. In such cases, it is now settled law that the duty of showing that the condition of a licence or a permit or other machinery by which the control is exercised, has been satisfied, falls upon the accused person. Even if the accused person was himself not the importer of goods such as recently imported art silk piece goods, if he came by them in the way of trade, it can reasonably be expected that before he acquires them and takes possession, he takes care to satisfy himself that they have been lawfully imported. Therefore, I am of the opinion that upon its own facts the case of Sardar Ali (to which I was a party) was correctly decided. But where the commodities in question are of the nature found in the present cases, the doctrine of res ipsa locuitur has no application whatsoever. In the gold cases, what has happened may be put, I hope not unfairly, in this fashion. The restriction having been imposed in 1948, the Customs authorities were minded seven years later to enforce it in order to discover to what extent the gold in the country was unlawfully imported gold. They did so by a sudden swoop upon a number of merchants engaged in the bullion trade. Parcels of gold which were about to be trans ported under authority of the State Bank of Pakistan, were seized as well as gold which was the subject of a forward trans action in the ordinary way of business. I feel no hesitation in saying that such action by the authorities is not conducive to the ascertainment of truth or to the administration of justice. It is as if in a search for a malafactor in, say, a stock exchange, a guillotine should suddenly be dropped on the heads of the persons collected together in the exchange, and justice were thought to be done by chopping off any heads which happened to be in the way. It is no consolation to the persons upon whom the blow has fallen in the gold cases that they have the facility of proving that the gold they were dealing in was lawfully imported, for the trade was such that they were content like every other trader to accept gold through the Karachi Bullion Exchange on trust. That trade is an approved trade and is indeed a. very necessary trade in the interests of the general economy of the country both in respect of money as well as of commodities. A proper step for the just enforcement of the law and the notification might be to apply some form of governmental supervision over the availability of gold bullion through the Karachi Bullion Exchange. But to allow transactions to proceed in great numbers from day to day over a period of seven years and then suddenly to halt the whole process in respect of certain traders, not selected on any basis of information, but by pure chance as it seems, is in my opinion a method of enforcement which cannot be approved. I conceive that to enable such an operation in question to be practised, upon an interpretation of so plainly defective a penal provision as item 81 of section 167, Sea Customs Act, is not only not in the interest of justice, but would positively enable the perpetration of injustice. The jewellery case arises in respect of stock found in a jeweller's shop, and the above considerations do not apply to it, but in that case as well, it is a matter for anxious consideration whether justice can be duly administered by the executive authorities. On examining the relevant law, it appears that even under item 81, as it stood when the alleged offences were detected, the matter could have been placed before a Court, for among the punishments provided, there was included the following, viz., "or on conviction before a Court to imprisonment for any term of less than three years, or to fine, or to both". I conceive that, in certain forms, the _gold cases could also have been taken before Courts under sections 8 and 23 of the Foreign Exchange Regulation Act, and the jewellery case under sections 3 and 5 of the Imports and Exports (Control) Act. As was clearly indicated by this Court in Sardar Ali's case, where the law places the burden of proof upon any party, the implication is that such party is entitled to an opportunity of producing evidence. Now, as has been pointed out by my learned brother S. A. Rahman, J., the Collector of Customs is not empowered to receive evidence, which in the case of oral evidence means state ments made on oath. Moreover, the placement of the burden of proof in a proceeding inter partes is a task of some delicacy, requiring for its just performance, a careful and clear appreciation of the evidence and circumstances which are made to appear as the case proceeds. The burden of proof is not a line in stone; it is subject to shifting in the course of proceeding. To observe and apply the relevant rules is a task which cannot be accomplished without judicial experience, in complicated cases, such as the present. As an instance, I may cite Article 104 in Stephens Digest of the Law of Evidence (12th Edition) which lays down a principle of general application, and reads as follows:‑ "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proving the fact shall lie on any particular person; but the burden may in the course of a case be shifted from one side to the other, and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively". The present cases furnish excellent examples of the necessity to ascertain the "opportunities of knowledge‑possessed by the parties", for the criminality of these acts cannot be judged on any absolute basis, irrespective of the situation of the parties in respect of the possession charged against them. If it were a simple case of a person walking out of a customs‑shed with say, a radio set on which it appeared, prima facie, that duty had not been paid, the burden might immediately be laid upon him to prove payment of duty by furnishing the necessary documents. The case would be similar where the deficiency appearing is as to the requisite of an import permit or licence. But in the circumstances surrounding the present transactions, which have been recounted above, no simple document can avail as a defence, nor can it be expected that any such documents should be available, to the accused persons. Difficult questions as to knowledge, or means of knowledge, or duty to enquire are certain to arise. The Collectors of Customs in these cases have not concerned them selves with questions of "knowing" or "having reason to believe". The acts performed by the accused persons being lawful acts, performed in the course of a legitimate trade of buying and selling of commodities obtained through a legitimate and reputable source, these questions relevant to "the opportunities of know ledge" were of the greatest importance, in the application of the law. It is true that if a law prescribes an absolute prohibition against the doing of a certain act, as a general rule mens rea is not a constituent of the offence. But here the absolute prohibition relieved only by the requirement of a licence, is against the act of importation, and in these cases, importation is not charged. As my learned brother S. A. Rahman, J., has observed, the law in item 81 was "found necessary in order to deal with the evil of smuggling which had assumed large proportions in the country". The Act was extended, by this item, from the point of entry of the smuggled goods, i.e., goods imported contrary to the law govern ing actual import, and from the person so importing, to any place where, and any person in whose possession, such goods, may be found. But that does not mean that such possession was pro hibited, in the same absolute sense that the import was prohibited, and therefore, in ascertaining the criminality attending such possession, mens rea must necessarily be regarded and ascertained. That is a task for which (speaking with all respect) Customs Officers are not sufficiently equipped. The penalties of the law, which are placed in the hands of these officers, are, as these cases prove, capable of assuming extremely onerous proportions. The dispensation of justice in these matters requires, in my considered opinion, that they should be entrusted to the only really com petent authorities, namely the Courts, for resolution in accordance with law. It is in this aspect that I consider the new item 81 to suffer from deficiency. It is more intricately and comprehensively worded than the original item 81, and appears to impose certain burdens upon the prosecution to show facts on which a prima facie case may be settled against the accused person, but the penalties now provided all lie in the hands of Customs Officers, for the reference to conviction by a Court is excluded. It may be of advantage if 1 repeat here that where the subject is liable to be mulcted in property under law unless he proves certain specified matters, questions of discharging burdens of proof arise, which necessarily require the reception of evidence, and that in all but the simplest cases, such questions can only be decided, without danger to the safe dispensation of justice, by the Courts. It may also be of advantage to mention the parallel provisions in the English law, upon which to a great extent, the Sea Customs Act, 1878, is based. By section 259 of the (English) Customs Consolidation Act, 1876, relating to "defendant's proof in smuggling cases" it is provided that where goods are seized "for non‑payment of dues, or any other cause of forfeiture", and a dispute arises "whether the same have been lawfully imported''. then "the proof thereof shall be on the defendant". But by section 218, "all duties, penalties and forfeitures . . . . . may be sued for, prosecuted, determined and recovered by action in the High Court of Justice in England", and in a number of other Courts in descending order of importance, ending with "one or more justice or justices in the United Kingdom, the Isle of Man or the Channel Islands". These Courts are, presumably, well equipped to determine questions relating to the replacement and discharge of the burden of proof created by section

259. AMIRUDDIN AHMAD, J.‑--I agree with my learned brother S. A. Rahman, J. S. A. RAHMAN, J.‑--This order will deal with Criminal Appeals Nos. K‑1 and K‑ Z to K‑23 of 1957 and Civil Appeal No. 81 of 1958, in which common questions of law have been raised relating to the correct interpretation of section 167, item 81 and section 177‑A of the Sea Customs Act, 1878 (referred to as the Act in the sequel). In Criminal Appeal No. K‑1 of 1957, the Collector of Customs, Karachi, is the appellant and Haji Usman Ghani and his brother, Haji Aboobakar Haji Ghani, are the respondents. In Criminal Appeals Nos. K‑2 to K‑23 of 1957, the appellants are the Federation of Pakistan and the Collector of Customs, Karachi, and the respondents are Qasim Ali and others. In Civil Appeal No. 81 of 1958, the appellants are Messrs S. A. Haroon. Muhammad Sharif, a partner of that firm, and Muhammad Anwar, a partner of Messrs Islam Commercial Corporation, whereas the Collector of Customs, Karachi, is the respondents. In all these cases, certain movable properties were seized from the possession of the various respondents in the criminal appeals and the appellants in the civil appeal, and confiscated by orders of the Collector of Customs, Karachi, on the ground that the possessors thereof had failed to prove their lawful import into the country. In lieu of confiscation the owners or the possessors of the property in question, were given the option of paying heavy fines within a period of four months, and, in addition, personal penalties ranging between a few thousands and a lakh of rupees were imposed on them. The aggrieved parties approached the High Court of West Pakistan, Karachi Bench, for redress, invoking the extraordinary jurisdiction of that Court for appropriate writs. The cases were first heard by Muhammad Bakhsh and Rahim Bakhsh Munshi, JJ. sitting in Division Bench, but as the learned Judges differed on the question of the true interpretation of the relevant law, the point of difference was referred for resolution to Constantine, J. Muhammad Bakhsh, J. expressed himself in favour of dismissing all the writ petitions. He held that the Collector was justified in seizing the goods which, prima facie, were covered by the des cription given in the various notification, banning or restricting the import of goods of those categories, that the onus lay on the possessors of those goods to establish that they had been lawfully imported, and that the enquiries made by the Collector did not involve any violation of the rules of natural justice. Munshi, J. took the view that it was incumbent on the Customs authorities to prove not only that the goods had been imported but that they had been imported after the restriction or the ban had been imposed by the relevant notifications, and that only after these facts had been proved, the onus could be said to shift on to the possessors to show that the goods in question were lawfully brought into the country. Constantine, J. did not wholly adopt either view. His interpretation of the legal provisions involved was that the law cast a duty on the Customs authorities seizing the goods to show that they had been actually imported and not merely that they answered to the description of goods mentioned in the notifications relied upon. This would be sufficient, in his opinion, to shift the burden of proving lawful import on the possessors of the goods. In the cases which have given rise to the criminal appeals before us, it was held by the learned Judge that the Collector had erroneously assumed the goods to be imported without adducing material in support of that allegation, and that this was an error of law apparent on the face of the record, justifying interference by the High Court by the issue of writs of certiorari. In the case relating to Criminal Appeal No. K‑1 of 1957, it was found that the rules of natural justice had not been transgressed by the Customs authorities. In the other cases, pertaining to Criminal Appeals Nos. K‑2 to K‑23 of 1957, in addition to the finding that the Collector had acted on an erroneous view of the law, it was held that fair opportunity had not been given to the respondents to contradict a relevant and most important piece of evidence prejudicial to them, namely the Assayer's report from the Mint. In the result, the Collector's orders were quashed. In the case, giving rise to the civil appeal, however, the finding was recorded that the pleadings of the appellants before the Collector contained an admission to the effect that the goods to question were imported and, therefore, no illegality was involved in the order of confiscation passed by the Collector of Customs, on the failure of the appellants to affirmatively establish that the goods had been lawfully imported. Further, in the learned Judges' opinion there had been a fair enquiry by the Customs authorities which was‑not vitiated by any violation of the rules of justice. The petition for a writ in this case, was dismissed, in consequence. The Collector of Customs and the Federation of Pakistan have challenged the High Court's order, quashing the orders of the Collector of Customs in respect of the goods seized from the respondents in the criminal appeals, whereas Messrs S. A. Haroon and others have assailed the correct ness of the High Court judgment in their own case. The property involved in these various appeals may briefly be described. In Criminal Appeal No. K‑1 of 1957, we have to deal with the seizure of (a) 350 diamonds; (e) 203 tolas of pure gold; (d) real pearls worth Rs. 17,914 approximately; (f) cultured pearls worth about Rs. 3,700; and (g) precious and semi‑precious ,tones worth about Rs. 55,

000. Some 19 tolas of alloyed gold, 31 gold sovereigns and some imitation pearls worth about Rs. 50 that had also been seized along with this property, were ordered to be returned to the respondents in that case by the Collector of Customs on the ground that the explanation submitted with regard to them was, satisfactory. In the other criminal appeals, the respondents in each case had delivered gold in certain quantities to the P. I. A., Karachi, for consignment by air to Dacca, after obtaining the necessary certificates from the State Bank of Pakistan, permitting the transfer of the gold from Karachi to Dacca. The gold was seized at the Karachi Air Port by the Anti‑Smuggling Police, and later dealt with by orders of the Collector of Customs, Karachi. In the civil appeal, we are concerned with 33 bars of gold .of 100 tolas each. It was stated that Muhammad Sharif, appellant, partner of Messrs S. A. Haroon, had advanced money to Messrs Islam Commercial Corporation against the delivery of this gold which the Corporation was to purchase from certain sellers. Five bars out of 33 bars were seized from Muhammad Sharif appellant (2) and one bar from Muhammad Anwar, appellant (3). The remaining 27 bars were taken from the Eastern Bank Limited where they were in deposit on account of Messrs S. A. Haroon. By virtue of a notification issued by the Government of Pakistan, Ministry of Finance, on the Ist of July 1948, inter alia; "gold coin, gold bullion, gold sheets or gold ingot whether refined or not" could not be imported into Pakistan except with tile general or special permission of the State Bank of Pakistan and the import of other goods covered by Criminal Appeal No. K‑1 of 1957 was restricted under a notification issued by the Ministry of Commerce on the 11th June 1951. The point has been raised by the learned Attorney‑General on behalf of the Federation of Pakistan and the Collector of Customs in these cases that the Sea Customs Act was a self‑contained statute, providing for a complete machinery for redress against orders of the Collector of Customs and, therefore, the respon dents in the criminal appeals and the appellants in the civil appeal (hereinafter referred to collectively as the aggrieved parties) should have been confined to the remedies available to them under the Act and their writ petitions ought to have been dismissed on that ground alone. Section 188 of the Act gives a right of appeal against an order of the Collector of Customs to the Board of Revenue (the Chief Customs Authority), whereas a further revision lies to the Central Government under section 191 of the Act. In Criminal Appeal No. K‑1 of 1957, it is conceded that an appeal is actually pending with the Board of Revenue, on behalf of the respondents. It had apparently been filed during the pendency of the proceedings before the High Court by way of abundant caution, but, as all the relevant documents were in that Court, the appeal could not be heard by the Board. In the other cases, however, the plea has been taken that the appeal and revision provided by the Act did not furnish an equally efficacious or convenient remedy in so far as the Board of Revenue insisted on the deposit of the penalties imposed on the persons concerned as a condition precedent to the entertainment of their appeals. Considering the large sums of penalties involved in these cases, it was represented, that it was not possible for the aggrieved persons to pursue their remedy before the Board, who declined to relax the provision with regard to deposit of penalty. In support of his contention, the learned Attorney‑General has drawn our attention to a judgment of this Court, reported as the Tariq Transport Company Lahore v. The Sargodha‑Bhera Bus Service, etc. (P L D 1958 S C (Pak.) 437). In that case, it was laid down that: "It is wrong on principle to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent". This is the general rule. At the same time it was recognised as an exception that in cases of absence or excess of jurisdiction or where the impugned order suffered from illegality, on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. It was further remarked that the rule is much more stringent in the case of mandamus than in that o certiorari. In the case of a prayer for a writ of certiorari, a certain amount of flexibility is allowed depending upon the c nature of the case. Halsbury's Laws of England, Third Edi tion, Volume II, page 130, states the position in the following terms:‑ "There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite grounds exists, certiorari will lie although a right of appeal has been conferred by statute." In most cases, Courts would act on the general common law rule "that certiorari will not lie when there is another adequate remedy by appeal, writ of error or otherwise, where an inferior Court has jurisdiction" (Ferris on Extraordinary Legal Remedies page 185). But in a proper case where the question of jurisdiction is raised; the extraordinary jurisdiction of the High Court may be successfully invoked by way of certiorari. The locus standi of the person approaching the Court in such matters is also an important consideration. As was observed in King v. Post‑Master General ex‑parte Carmichael ((1928) K B 291). "It is undoubtedly good law that if the application for a certiorari is made by a party aggrieved, then it ought to be granted ex‑debito justitiae, and the Court has not the general discretion which it would have when the application is made by one of the public who is not personally concerned." In the present cases, the question of jurisdiction is raised by the contention that the Collector of Customs had no authority to seize any particular goods, unless there was prima facie evidence to suggest at least that the goods were covered by a notification imposing any restriction or ban on its import. That was a condition precedent to the exercise of the power of seizure conferred by law and the case of the aggrieved parties is that the Collector acted without satisfying himself on this vital point. The question of interpretation of the law involved is of con siderable importance and might frequently arise. In the circum stances of these cases, therefore, I am not disposed to give effect to the technical objection raised by the learned Attorney General. The main contest between the parties centres round the construction of item 81 of section 167 and section 177‑A of the Act. It seems necessary to set out these provisions in extenso at this stage: -- "Item 81: If any person is found in possession of, or carrying, removing, depositing, harboring, keeping, concealing or in any other manner dealing with, any goods chargeable with a duty which has not been paid or the importation or exportation whereof is for the time being prohibited or restricted by or under Chapter IV of this Act. General 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 be fore a Court, to imprisonment for any term of less than three years, or, to fine, or to both. (The liability to imprisonment was removed from the punish ment column by a subsequent amendment.) "Section 177‑A. Burden of proof in certain cases:‑ Where in any proceedings under the provisions of this Act any question arises in respect of any goods as to whether: ‑ (a) duty has been paid or secured in respect of any goods; (b) any goods have been lawfully imported or lawfully unloaded from any vessel ; (c) any goods have been lawfully loaded into any vessel M. lawfully exported or lawfully water‑borne ; (d) any goods were lawfully brought into any place for the purpose of being loaded into any vessel or exported: then the burdent of proof shall lie upon the person in whose possession the goods were found or from whose premises the goods were recovered or the person claiming the ownership of the goods. The identical question fell to be considered by this Court in the Federation of Pakistan v. Sardar Ali and others (P L D 1959 S C (Pak.) 25), and the learned Attorney‑General strongly relies on the judgment in that case to support his position. It is suggested from the other side, however, that certain aspects of the law might have escaped notice while deciding that case and the effect of these legislative provisions may therefore require to be re‑assessed, in the light of the submissions made by Mr. Vellani and Mr. Brohi who appeared for the aggrieved parties. As was pointed out in Sardar Ali's case, before the enactment of Ordinance III of 1954, the position was governed by item 8 of section 167 of the Act, which was aimed at the suppression of illegal import or export, or attempts to commit such an offence or to evade payment of the duty leviable on the relevant goods. The onus of proving all the necessary ingredients of the offence rested on the prosecution at that time and further, the 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. For the first time, such possession was brought within the reach of this punitive law by the insertion of item 81 of section 167, in the Act, under the authority of Ordinance III of 1954. It was further held in that case that section 177‑A embodies a procedural rule which would affect all pending actions or proceedings and from the date of its enact ment, any one who retains possession of goods, falling within item 81 of section 167, howsoever or when so ever they might have been acquired, can do so at his peril. Equitable considerations based on the supposed harshness of the law, it was laid down, could not be allowed to defeat a clear enactment passed by a competent legislature within the field of its jurisdiction. The softening of the drastic provisions would be the function of the legislative authority and in fact by Act XXV of 1956 the rigour of these provisions has been considerably toned down. These observations were made in relation to goods seized for contravening a notification restricting import of goods. The combined effect of item 81 of section 167 and. section 177‑A of the Act was declared to be that the burden lay on the person found in possession of such goods to prove that they had been lawfully imported and that all relevant customs duties had been duly paid thereon. This view, it is contended now, was based on a too literal construction of item 81 and would create difficulties when the question of possession of goods, exportation whereof for the time being is restricted or prohibited by or under Chapter IV of the Act, is examined. It must be conceded that item 81 of section 167 of the Act has not been artistically drafted. So far as possession of, or carrying, removing, depositing, harbouring, keeping, concealing or in any other manner dealing with, any goods chargeable with a duty which has not been paid," is concerned, the meaning of the provision is plain and involves no complications. But when it comes to a consideration of the effect of the provision relating to goods, the importation or exportation whereof is for the time being prohibited or restricted, a literal construction of the item, as it stands, would, at first sight, appear to make possession simpliciter, of goods falling within this description, to be an offence, irrespective of whether the importation or exportation was with the permission of the competent authority or not. This could not obviously have been the intention of the legisla ture and a question of construction consequently arises. It is also argued that the Court should lean against giving retrospec tive or retroactive effect to a law, unless the intention of the legislature to encompass such a result was either clearly expressed or necessarily implied. It is urged that a person may be in possession of the relevant type of goods from a time before the restriction or the ban was imposed, and such innocent pos session, on the interpretation contended for by the learned Attorney‑General, would be overnight converted into culpable possession. These considerations undoubtedly require serious attention. At the same time, it is admitted that the competency of the legislature to pass a law having retrospective or retroactive effect is unquestionable. The problem, therefore, remains one of construction. 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 l 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 a far‑fetched surmise that the enactment o 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 the 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 con struction 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 inter pretations. "Individual hardship not infrequently results from enactments 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. As item 81 of section 167 was introduced into the Act at the same time as section 177‑A, by the legislative authority, some assistance may be derived in its interpretation by a consideration of the provisions of the latter section. The argument, that as section 177‑A could only apply after a proceeding had been set on foot against the delinquents and not earlier, its provisions should not be pressed into service for a proper construction of item 81, is not impressive. Section 177‑A throws some light on the type of questions that might arise in connection with the offence embodied in item

81. Reading the two provisions together, therefore, the inference follows that item 81 implies an under lying assumption that there has been some contravention or attempt at contravention, of duly issued notifications, imposing a duty or a restriction or a ban on importation or exportation of any particular class of goods. Clause (a) of section 177‑Al relates to uncustomed goods on which duty has not been paid or, secured. Provided that the goods in question answer to the description given in the relevant notification by which the duty was imposed, there would be no injustice or unreasonableness in requiring the possessor of such goods to prove that the legal J duty had in fact been paid or secured thereon. Similarly clause (b) of that section covers goods of which the import has been completed and the burden is laid on the possessor thereof to establish that they were lawfully imported. Here again, the under‑lying assumption is that the goods in question were covered by the relevant notification and were thus, prima facie, such as were in all probability brought into the country across the customs frontiers. Clauses (c) and (d) of that section pertain to goods either actually exported or with regard to which attempts ate export have been made; in contravention of a legally imposed restriction or ban. If these two clauses are read with item 81 of section 167, the legislative intent with regard to exported goods does not remain obscure. It is not then the mere possession anywhere in Pakistan of goods of which exportation has been for the time being prohibited or restricted, that would make the possessor liable to be proceeded against. On the other hand the possession of such goods, to be culpable, must be related either to an actual export, e.g., by transferring the goods into the territorial waters within the three‑mile limit across the customs frontier, or to the act of bringing them into a place or loading them into a vessel in circumstances from which the positive inference can be fairly drawn that an attempt was being made to export them in defiance of the law. This view would be consistent with the object of eradication of smuggling which appears to be the foundation for this legislation and would avoid the pitfalls which the literal interpretation of item 81, standing by itself, would appear to uncover. Mr. Brohi and Mr. Vellani, however, suggested that instead of calling in aid section 177‑A, the provisions of item 81 of section 167 should be so interpreted as to avoid the absurd result, that mere possession of goods described within this item should constitute an offence, without the defence being open that the import or export was with the requisite permission. They contended that, to obviate such an unreasonable conse quence, it should be held that the prosecution should prove under item 81 not only that the goods in question had been imported or exported, but that the act complained of related to a point of time subsequent to the restriction or the ban being imposed. This was the view which found favour with Munshi, J. but did not commend itself to the other two learned Judges who dealt with the matter in the High Court., Such a construction would, in my opinion, defeat the very object of these enactments. The public authorities could not possibly collect evidence to show that the specific goods they had seized, had been brought into the country across the customs frontiers at any particular time. To expect them to do so would be to place on them an impossible burden to discharge. If they could have access to such evidence, surely they could also marshal evidence to show that the particular imported consignment did not pass through the appointed customs barrier on the date in question and was not subjected to the payment of duty or was not covered by a permit. This would rob the provisions of section 177‑A of all efficacy and indeed make them entirely redundant. For this reason, I am unable to accept the suggestion that the phrase "forth" time being" occurring in item 81 should be equated with "the time at which the articles were imported or exported". This phrase clearly qualifies the verbs "is prohibited or restricted" and means no more than that at the time of the seizure of the articles in. question, the relevant notification was still in force. I further find it difficult to agree with Constantine, J's view that it would be incumbent on the prosecution to prove not merely that the goods seized were covered by a 'notification restricting or prohibiting import but also that the particular goods had actually been imported. As already observed, such direct evidence of import would not be available to the relevant authorities in view of the clandestine nature of the modus operandi adopted by smugglers. The suggestion made by Mr. Brohi that a separate notification should exist concerning each lot of specific goods that is seized, and that their inclusion within the class or category described generally in such notification should not justify confiscatory action, suffers from a similar infirmity. On that view, there would have to be as many notifications as the number of persons proceeded against, a situation impossible to contemplate. I see no pressing necessity to import into the provisions off 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 answer 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 barriers 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 purpose 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 those 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 restric tion, 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 the necessary permission had been obtained for their export. On this view, the decision in Sardar Ali's case does not appear to me to require reconsideration. The correct legal position does not seem to have been present to the minds of the parties in these cases. It does not appear to have been realised by the Collector of Customs that to justify action of seizure, the marshalling of facts which could aid the prosecution in relying on the evidential presumption in respect of illegal import or export was the initial duty of the customs department. A mere allegation that the goods had been imported or exported would not suffice. In either case, it would have to be shown that the goods in question were covered by the description of goods in the relevant notifications, and, in the case of illegal export or attempt to export, circumstances have to be established as indicated by section 177‑A, which would prima facie show that the goods were present at a particular place for the purpose of export. It would only be then that the possessor would be called upon to discharge the onus contemplated by section 177‑A. That is a condition precedent for the exercise of jurisdiction by the Collector of Customs. In the case of Criminal Appeals Nos. K‑2 to K‑23 of 1957, the Collector of Customs, does not appear to have applied his mind to the question whether the goods seized, fell within the category of imported goods subject to a restriction or a ban. That essential seems to have been merely assumed to exist. Moreover, as found by Constantine, J., fair opportunity was not given to the respondents to contradict the Assayer's report from the Mint as regards the fineness of the seized gold. This was not a conclusive piece of evidence and should have been allowed to be rebutted by such evidence as the respondents might choose; to adduce. I am unable to agree with Constantine, J., that there, was any distinguishing feature of the case in Civil Appeal No. 81 of 1958 in this respect. Although there may be indications in the material on the record that the appellants in that case were aware of the existence of the Assayer's report, yet the Collector's order does not on the face of it, show that he was relying on that document. It is also curious to note that the Assayer's report mentioned that 26 samples out of the 33 seized had a higher fineness than the maximum fineness achievable in Pakistan on refining gold ornaments. The Collector, however, confiscated all the 33 samples without discrimination. Even with regard to the 26 samples, I feel, opportunity should have been given to the appellants to make good their claim that the fineness found by the Assayer was not beyond the local refining processes. The gold seized in this case was in the shape of 100‑told bars whereas, we are given to understand that imported gold generally consists of 10‑told bars. Whether imported gold had been deliberately turned into 100‑told bars by way of camouflage, was a question of fact in the case. The inference drawn by Constantine, J. further that in that case the appellants had admitted that the gold was imported, does not appear to rest on any solid founda tion. All that they had said was that the gold was in circulation before the relevant date. That does not necessarily imply that it was imported gold. In Criminal Appeal No. K‑1 of 1957, the respondents had been asking time and again for an opportunity to produce account books and other evidence with a view to establish that the goods seized had not been imported, or at least not imported after the ban or restriction had been imposed. This opportunity was denied to them, though, of course, their contention that they would like to be represented by an Advocate could not be acceded to. The Collector did not constitute a judicial tribunal, though the proceedings before him were certainly of a judicial or at least quasi‑judicial character. The principles of natural justice could, therefore, be legitimately invoked by the party concerned and a fair and full hearing had to be given before action could be taken which had the result of depriving the respondents of their property. In this connection, Constantine, J's judgment contains the following observation:‑ "On this point I think that even if the opportunity of making oral representations was not given and even if the Collector said that he would send for the books of account if needed and, did not send for them, yet it cannot be said that the rules of natural justice had not been observed. The petitioners had sent in several representations and had a full opportunity of stating their case. The Collector may well have considered that their books of accounts could not advance their case further." With respect, I do not regard this view to be consistent with the position that section 177‑A placed a certain onus on the appellant and it was their legal right to be fully heard and to produce whatever evidence they desired to marshal in order to discharge that onus. This Court had occasion to remark in Sardar Ali's case on the serious consequences that might ensue in respect of personal and property rights if the correct procedure is not followed by the Customs Collector. It is true that the Collector is not bound by the technical rules of evidence in such inquiries and that he is not authorized to give oaths to witnesses p, who appear before him. But that does not mean that the material sought to be produced, whether documentary or consis ting of statements orally made, should be arbitrarily shut out. As a result of the above discussions, I have arrived at the conclusion that no interference is called for with the orders passed by the High Court in the criminal appeals and that the appellants in the civil appeal were entitled to be placed on the same footing as the respondents in the criminal appeals. I would, therefore, allow the civil appeal and quash the order of the Collector of Customs in that case. It would be open to the Collector to proceed with the enquiry in that case, in the light of the observations made above. A similar enquiry would be in order in the cases which have given rise to the criminal appeals. In view of the circumstances, I would leave the parties to bear their own costs. A. H. Order according.