PLD 1952 Sind 28 (PLP)

AGHA, J.‑The‑three opponents in this case were convict ed by the District Magistrate, Sukkur, under section 3 (2) of the Sind Essential Commodities (Control) Ordinance of 1947, which has since been replaced by an Act with a correspond ing name. On appeal, the Additional Sessions Judge, Sukkur, acquitted them on the ground that the facts proved did not amount to 'attempt', but mere 'preparation.' The Advocate -General for Sind then, under the orders of the Government of Sind, appealed against this acquittal. The appeal was heard by My Lord the Chief Judge and my learned brother Constantine, J. There was, however, a difference of opinion between them, My Lord the Chief judge being of opinion that the acquittal of the opponents was proper ; while my learned . brother Constantine, J., held that the facts proved amounted to an attempt, and not preparation only. The appeal has, therefore, been referred to me for decision. I have heard the Advocate‑General for the Crown and Mr. Brohi for the opponents. The established facts are, as said by my learned brother Constantine, J., in his order :‑ "That the accused, acting in concert, intended to cross the border with prohibited goods and declared that intention when stopped : they had bought the goods and procured the lorry in Karachi in order to carry this intention, and were the owner of the goods, the owner of the lorry, and their spokesman : they had provided themselves with a permit for export by rail of certain medical stores, and tried with this permit to bluff the Deputy Collector into believing that the goods and their export by lorry were covered by the permit ; they had travelled 360 miles, leaving only 35 miles to go, and it is nowhere suggested on the record that‑ there was at the border any barrier or customs house." A large number of authorities were quoted before the Hon'ble the Chief Judge and Constantine, J., and those have been discussed by them in their dissenting orders. Almost all the cases referred to by them, however, are cases under section 511 of the Penal Code, which reads : "Whoever attempts to commit an offence punishable by this Code with transportation or imprisonment or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no provision is made by this Code for the punishment of such attempt, be punished. Section 7 of the Essential Commodities (Control) Act, 1947, which makes the act of 'attempt' in this case punishable however, reads : "Any person who attempts to contravene any order made or deemed to be made under section 3 shall be deemed to have contravened that order." In the arguments before me it was conceded that section 511, Penal Code, will not apply in terms to the present case; though the decision in the cases falling under section 511, I. P. C., would be helpful in construing what are the general principles applicable in deciding whether the acts committed amount to a 'preparation' or have proceeded beyond that stage to the stage of 'attempt.' There can be no doubt that in every crime there are four stages‑intention, preparation, attempt and completion. The acts amounting to the first two stages, namely intention and preparation, are not made punishable by law. It is only after the acts have gone beyond the stage of 'preparation' that they are made punishable as 'attempt.' Mr. Brohi, who appears for the opponents in this case, has quoted Salmond on jurisprudence from page 528, where the learned Commentator has said what are the 'criminal attempts', discussing which he has said : "Although every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, notwithstanding the criminal purpose of the doer, I may buy matches with intent to burri a haystack, and yet be clear of attempted arson ; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt. The intent to commit a crime is one thing; to get ready to commit it is another ; to try to commit it is a third. We may say, indeed, that every intentional crime involved four distinct stages‑intention, preparation, attempt and completion. The two former are commonly innocent. The will and the deed must go together. Even action in pursu ance of the intent is not commonly criminal if it goes no further than the stage of preparation. I may buy a pistol with felonious purpose, and yet remain free from legal guilt. There is still a locus poenitentiae. But the last two stages in the offence, namely, attempt and completion are ground of legal liability. What is the distinction between preparing to commit a crime and attempting it ? This is a question to which English Law gives no definite or sufficient answer. An attempt to commit a crime', says Sir James Stephen in his Digest of the Criminal Law, 'is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission, if it were not interrupted. The point at which such a series of acts begin cannot be defined, but depends upon the circumstances of each particular case... A criminal attempt bears criminal intent upon its face ....An act, on the other hand, which is in itself and on the face of it innocent, is not a criminal attempt, and cannot be made punishable by evidence aliunde at to the purpose with which it is done." In Halsbury's Law (cf. Vol. IV, Art. 41, page 41) 'attempt' is defined as : "Any overt act immediately connected with the commis sion of an offence, and forming part of a series of acts which, if not interrupted or frustrated, would and in the commis sion of the actual offence, is, if done with guilty intent an attempt to commit the offence ....An act: in order to be criminal attempt, must be immediately, and not remotely, connected with and directly standing to the commission of an offence : Thus, it is not an attempt to commit an offence to procure the means to commit the offence when such procuring is a neutral act and may be of an innocent nature, e.g., to buy matches for the sake of setting fire to a house is not an attempt to burn the house, but to light a match for the purpose of setting fire to a house might be a criminal attempt. For a person to have in his possession the means of committing a crime, even though he has the intent to commit it, is not of itself an offence at Common Law." My learned Brother Constantine, J., relies on a passage quoted from the judgment of Knox, J., which reads : "Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act, attempted (sic) does not cease to be a criminal attempt, in my opinion, because the person committing the offence does or may repent before the attempt is completed." I quite agree with these remarks. The main thing, however, in this is that a criminal act must have been done, or in other words, the person intending to commit a particular offence must have done one or more criminal acts forming part of the criminal transaction towards the immediate commission of the intended offence. As said above, section 511, I. P. C., will not be applicable to this case, because that is applicable only to offences committed under the Indian Penal Code. The Sind Essential Commodities (Control) Act, 1947, does not define what is attempt and, therefore, the general principles will be applicable to this case. From the facts, it is clear that the opponents intended to export certain articles which were prohibited by the orders of the Government passed under section 3 of the Act. It is also true that they had travelled a long distance from Karachi, and had only 34 miles to travel to reach the border. But up to that stage whatever they had done was not punishable under the law, because they had not done any criminal act. Taking of these commodities from Karachi right up to the borders of Sind is not at all punishable by any law as the movement of these articles within the Province was not prohibited. The fact that they intended to transport these articles out of the Province, does not make the opponents liable to be punished, because no one is to be punished for his intention. It is only the acts of a person which if they amount to criminal offence can be punished. As said by Salmond in his Jurisprudence : "An act, which is in itself and on the face of it innocent, is not a criminal attempt and cannot be made punishable by evidence aliunde as to the purpose with which it is done." It has to be remembered that, to quote Lord Halsbury, "a case is only an authority for what it actually decides and that every judgment must be read as applicable to the particular facts proved or assumed to be proved, and that the general expressions which may be found therein were to be regarded as governed and qualified by the particular facts of the "case in which such expressions are to be found." The facts of this case clearly show that the opponents, up to the stage when they were stopped by the Deputy Collector, had not done any criminal act. Their taking the goods in a lorry from Karachi up to that place was an innocent act, and the fact that there was no barrier or customs house at the border which might have deterred the opponents from crossing the border with these goods, does not make the act of the opponents in going up to the point where they were stopped by the Deputy Collector, criminal. In my opinion, it is not at all material what the accused intended to do, or would have done if not stopped : but what is material is, whether up to that stage they had done any act which would be criminal and which would form part of the offence intended to be committed. I, therefore, agree with My Lord, the Chief Judge, that the act of the opponents in this case had not proceeded beyond the stage of 'preparation' and there was no attempt made by them to transport the goods outside the Province of Sind. I, therefore, dismiss the appeal. A. H. Appeal dismissed.