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Criminal Appeal No. 39-C of 1981, decided on 24th May, 1981.

----S. 412-Appeal (criminal)----Notwithstanding judgment proceed ing from accused's plea of guilty, convict, held, not debarred from questioning prosecution itself if facts alleged against him make out no case.

----S. 2, cl. (s) read with Notification No. S. R. O. 1426 (1)/1973, dated 5th October, 1973-"Smuggled goods", determination of-- Nothing to show any notification having listed glassware/crockery or padlocks as goods import or export whereof prohibited or restrict ed-Goods, held, not covered by definition of "smuggled goods" as defined in cl. (s) of S. 2 of Customs 'Act.-[Words and phrases].

----- S. 410 read with Customs Act (IV of 1909), S. 2, cl. (s) read with Ss. 156 (1) (89) BSc 174-Appeal (criminal)-' Smuggled goods", determination of-Nothing to establish offending goods exceeding Rs. 1,000 in value so as to bring same within mischief of cl. (s) of S. 2 of Customs Act-Jurisdictional fact having not been established prosecution, held, unwarranted-Conviction and sentence set aside, in circumstances.-[Jurisdiction].

Ch. Masood Zakaria for Appellants.

Sh. Maqbool Ahmed-II for the State.

Date of hearing: 24th May, 1981.

Three persons, namely; Mubarik Ali and Muhammad Rafique appel lants and Muhammad Nawaz, were prosecuted upon recovery from their possession on 21st February, 1980 at 5.50 p.m. of 22 dozen bonus playing- cards, 31 dozen Chinese made padlocks and a water-set consisting of 16 glass tumblers and 2 jugs. During the trial, they were charged as follows:-

"That on 21^stFebruary, 1980 at 5-50 p.m. without lawful excuse at Moghalpura Road, you all were found in possession of playing cards, locks water sets etc. of foreign origin worth Rs. 4,000 for which you all could not satisfactorily account and thus you all committed an offence under section 156 (1) 89 read with section 178 of the Customs Act."

All the three accused pleaded guilty to the charge in the following words:-

"I confess my guilt."

upon the plea, that trial Court convicted them of the offence under clause (89) of section 156 (1) read with section 178 of the Customs Act and imposed a sentence of fine of Rs. 300.00 on appellant Mubarik Ali, of Rs. 500.00 on appellant Muhammad Rafique and of Rs. 200.00 on their co-accused Muhammad Nawaz. Of the three only Mubarik Ali and Muhammad Rafique have appealed. Their case is that two of the three items, namely, locks and water-sets, are not notified goods and that the playing-cards is the only item notified in the list but the same was less than rupees one thousand in value and as such the offence of smuggling was not established against them.

2. A question has been raised by learned counsel for the State as to the maintainability of this appeal inasmuch as the judgment proceeds from the appellants plea of guilty. Section 412, Cr. P. C. does not an appeal from conviction on a plea of guilty to the extent or legality of the sentence only. Nevertheless the convict is not debarred from questioning the prosecution itself if the facts alleged against him do not make out a Criminal case. For example, a convict under section 188, P. P. C. is not debarred from challenging his conviction on the ground that the complaint had been initiated by a police officer for violation of an order under section 144, Cr. P. C. passed by a District Magistrate. Similarly, he can challenge the trial on the ground that the Magistrate, who had tried him, had no jurisdiction. Moreover, the plea of guilty of an accused will not warrant that the trial Court apply the law incorrectly. Even if a particular offence be mentioned in the charge, the Court has yet to examine and hold that the offence was established notwithstanding the plea of guilty Generally what an accused confesses in a case of the kind before me is the factum of recovery and not that he had in law committed the offence mentioned in the charge. It is for the Court to examine on the face of the accused's plea whether the offence had actually been committed.

3. Under clause (89) of section 156 (1) of the Customs Act, a person is liable to prosecution before the Court if he has been found without lawful excuse to have acquired possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, ox in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods. The essential ingredient of the offence, therefore, is that the goods recovered from the accused be "smuggled" or "goods with respect to which there may be reasonable suspicion that they are smuggled goods". This brings us to the definition of smuggling which is contained in clause (s) of section 2 of the Customs Act. According to this definition, "smuggle" means to "bring into or take out of Pakistan, in breach of any prohibition or restric tion for the time being in force, or evading payment of customs-duties or taxes leviable thereon . . . . any goods notified by the Federal Govern ment in the official Gazette, in each case exceeding one thousand rupees in value, etc". Learned counsel for the State has not been able to show any notification listing glassware or crockery or padlocks as goods, the import or export of which has been prohibited or restricted for the purpose of the above definition. The only notification, which is available, is S. R. O. No. 1426 (1)/73, dated 5th October, 1973, which has only one of the items. i.e., playing cards shown at Serial No. 15. The objectionable goods for the purposes of the definition of smuggling is, therefore, the playing cards. I have asked learned counsel for the State if there is any law by which the definition of smuggling in section 2 (s) has been enlarged, extended or supplemented. He has not cited any. Even in the Prevention of Smuggling Act (XII of 1977), the definition of smuggling is the same as contained in section 2 (s) of the Customs Act. The breach of every pro hibition of import or export will not amount to smuggling unless the breach is shown to be covered by the definition of the term smuggling. There are many breaches of the restrictions placed on the import and export of goods which are only to be dealt with by the Customs authorities. Such breaches will not warrant the taking of the case before the Special Judge.

4. In the instant case, the charge gives the value of the goods recovered as Rs. 4,000.00. I have gone through the record with the help counsel for both sides but I have not found any material on the basis of which this valuation has been incorporated in the challan and later in the charge, No specific question had been put to the appellants as to the value of the playing cards. There is, therefore, no reason to hold that the value laced on the goods is to be accepted. There is also nothing to show the value of the items separately. Therefore, it cannot be said as to what was the value of the playing cards, which is the only offending item. In fact there is nothing on the record to controvert the assertion made on behalf of the appellants that the value of the said article was less than one thousand rupees. The quantity of the playing cards was 22 packets, of a dozen each. It was, therefore, the duty of, the prosecution to have estab lished that their value exceeded rupees one thousand. In the absence of any material on the record, it is not possible to hold that their value exceeded rupees one thousand. The jurisdictional fact having not been established, the prosecution was unwarranted.

5. I, therefore, accept their appeal, set aside their conviction and sentence and direct that the amount of fine, if paid by them, be refunded to them.

Appeal allowed.

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