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---Arts. 185 (3) & 199 ‑Constitutional jurisdiction of High Court-- Leave to appeal granted to consider whether Constitutional petition filed by respondent was competent having regard to the fact that an equally efficacious remedy by way of appeal and revision before statutory authority was available whic1h he had failed to avail.

(b) Constitution of Pakistan (1973)‑

‑‑Arts. 185 (3) & 199‑Constitutional jurisdiction of High Court --Leave to appeal granted to consider question whether it was fit and proper for High Court to have exercised constitutional jurisdiction and prejudge issues which were ultimately to go before a competent court of law in a criminal prosecution against respondent.

(c) Customs Act (IV of 1969)‑

‑‑ Ss. 2 (5) & 156 (8)‑"Smuggle" and "attempt to smuggle"-- Definition‑Attempt to smuggle though not defined in Act but S. 156 (8) makes attempt to smuggle also punishable‑Attempt does not make it necessary that interruption which aborts consummation of crime should be penultimate act for completion of crime‑Course of conduct of a culprit from stage of conception to consummation of crime analysed.‑‑[Words and phrases].

Attempt to smuggle has not been defined in the Customs Act, 1969 but clause (8) of section (8) makes the attempt to smuggle also punishable by virtue of the aforesaid definition of the word "smuggle" which is inclusive of an attempt to bring in or take out goods coming within the mischief of the main provisions. The classic analysis of the course of conduct of a culprit from the stage of conception to consummation of crime has laid down four distinct stages, namely (i) intention; (ii) preparation; (iii) attempt ; and (iv) completed act. The first of the aforesaid four stages, the Criminal Codes of all countries exempt from punishment. The Penal Code of Pakistan punishes the second stage of certain offences, by con stituting them separate and distinct offences. The third, namely, attempt marks a distinct advance in the development of criminality, so that it is punishable everywhere: Ordinarily then, law allows locus poenitentia only up to the second stage after which it regards the development of the scheme as too far advanced to remain unpunished. But this tins led to an important question as to when the preparation ends and an attempt begins. This is often a difficult question to resolve in the facts of a given case. The first stage is intention, and so long as the offence rests only in inten tion it is not punishable. So long as an act rests in bare intention, it is not punishable by our laws; but immediately when an act is done, the law Judges not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes Criminal and punishable. Intention is the determination of the will to act in particular manner. As such, it amounts to resolution or a settled determination that a certain thing shall be done. So long as such intention does not pass beyond the stage of mental resolve or determination, law cannot punish it, because law will not take notice of an intent without an act. But the moment it emerges from that stage, it ceases to be an inten tion and develops into a preparation.

The case in which mere preparation to commit an offence has not been made punishable present the problem to determine whether the acts or omissions committed by the culprit constitute merely preparation or amount to attempt. Often times in such cases the transition between what is preparation and as attempt is so gradual as to be almost imperceptible. The preparation to commit an offence consists in devising or arranging the means or measures necessary for the commission of the offence. It implies the taking of previous measures necessary for the crime: But it is difficult to give an abstract definition of the term "attempt" in juridical context; for it is largely a mixed question of law and fact depending upon the circumstances of each particular case.

An attempt to commit a crime is an act done with intent to commit that crime, and forming part acts series of acts which could constitute its actual commission if it were not interrupted.

The actus reus necessary to constitute an attempt is complete if the person does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime:

Held, attempt does not make it necessary that the interruption which aborts the consummation of the crime should be the penultimate act for the completion of the crime.

Even if there is undoubtedly evidence of intention to commit the offence on the part of the offender, and of preparation to carry out that intention, the law does not make the person entertaining such intention or doing such acts of preparation culpable, so far as the offence of smuggling is concerned. Because there is always in such cases a possibility of change of mind or locus poenitentia to give up the prosecution of the criminal intent beyond the stage of preparation.

Sir H. S. Gour, in his commentary on the Penal Law of India Davey v. Lee (1968) 1 Q B 366 ; Stephen's Digest of the Criminal Law, 5th Edn., (1894) ; Archbold's Criminal Pleading, Evidence and Practice quoted.

(d) Customs Act (IV of 1969)

---Ss. 2 (5) & 156 (8) ‑Smuggle and attempt to smuggle‑Prosecu tion‑Confiscation proceedings‑Nature ‑Both prosecution and con fiscation proceedings, held, were concurrent remedies but each was independent of other and therefore could not be deemed to be mutu ally exclusive ‑‑Both proceedings could proceed simultaneously and could not remain under suspension for sake of other.

Criminal prosecution of a person who commits an offence under the Customs Act, 1969 in relation to the goods which are seized under the said Act by the Customs Authorities, falls in a separate category. While the confiscation proceedings taken by the Customs Authorities are in the nature of departmental proceedings in condemnation of goods for the purpose of revenue, the proceedings for criminal prosecution of a person who commits an offence under the Act in relation to those goods, are judicial proceedings for determination of the guilt of the person concerned for commission of the alleged offence and entailing the punishment for the same. Both are concurrent remedied but each is independent of the other and therefore they cannot be deemed to be mutually exclusive. They can proceed simultaneously and neither can remain under suspension for the sake of the other.

Adam v. Collector of Customs P L D 1969 S C 446 quoted.

Raza A. Khan, Deputy A.‑G. for Appellants.

Zaheer Ahmad Khan, Advocate Supreme Court and Ijaz Ahmad Man, Advocate‑on‑Record for Respondent.

Date of hearing : 3rd November, 1985.

ZAFFAR HUSSIAN MIRZA, J.‑

This appeal by leave arises out of the judgment, dated 19th June, 1984, by a Division Bench of the Peshawar High Court, Peshawar, whereby a constitutional petition filed by respon dent Khan Muhammad was accepted and order, dated 10th October,, 1983, passed by the Collector, Central Excise and Land Customs, Peshawar, confiscating the foreign currency of they respondent was set aside with a direction that the seized currency be returned to him.

2. Briefly stated the facts are that the respondent, who, is a citizen of Afghanistan, arrived at Torkham Land Customs Station, from Afghanistan on 13th March, 1903. He was in transit to U. K. through Pakistan. According to him he declared foreign currency at the aforesaid Customs Station and the Customs Officer on duty issued to him the relevant to of declaration. It is stated that as the respondent had to go to U. K. via Dubai, he travelled to Islamabad and the foreign currency in his possession was checked by the Customs Authorities at Islamabad, but as the papers relating to his visa were left behind at Peshawar he could not continue his journey onwards from Islamabad. He returned to Peshawar and booked a seat from Peshawar to Karachi for 18th March, 1983. On the said date at about 5 00 p. m. as be was proceeding to the aircraft for embarkation, he was intercepted by the Peshawar Custom s Authorities. On a search of the bag in his possession, it was revealed that he was carrying foreign currency which was seized and a show‑cause notice was issued to him. On 20th March, 1983, he was arrested but was released on bail subsequently.

3. The show‑cause notice which was issued on 15th July, 1983, under clauses (8), (77), (81), (82) and (89) of subsection (1) of section 156 of the Customs Act, 1969, by the Collector of customs, Peshawar, appellant No. 2, it was alleged that the foreign currency, seized from the respon dent was in excess of the amount declared by him, and further that the currency was not imported from Afghanistan but was locally collected, that the respondent was not the owner of the currency and that the currency was being smuggled by him as a carrier to Dubai. The respondent submitted his reply to the show‑cause notice in which he asserted that, he, was a businessman in Kabul and the foreign currency belonged to him as well as to some other merchants of Kabul. The Collector Central .Excise and Land Customs, Peshawar, however, by his order, dated 10th October, 1983, confiscated the foreign currency under section 1566 (1), clauses (8) and (89) of these Custom, Act, 1969, and also imposed a personal penalty of Rs.50, 000 on the respondent. Being aggrieved by the said order the respondent challenged the same in the Constitutional jurisdiction before the Peshawar High Court on the ground, inter alias that the Import of foreign currency into Pakistan was no offence in view of the Notification No. F. E. I/78‑SB, dated 11th May, 1978, issued by the State Bank of Pakistan and that the respondent had not even attempted to struggle the foreign currency out of Pakistan.

4. In the High Court on behalf of the appellants no exception was taken to the assertion that there was no restriction on the importation of foreign currency into Pakistan, but it was contended that the case against the respondent was not of importation of any foreign currency from Out side Pakistan. It was submitted that the respondent h, ad purchased the currency seized from his possession inside Pakistan and had in collusion with the Customs Officer posted at the Land Customs Station, Torkham, prepared a bogus declaration form of foreign currency. This contention was rejected by the learned Judges of the Division Bench as unsupported by any evidence, particularly in view of the fact that the concerned Officer of the Customs Department was charged for this irregu larity but the charge could not be proved against him. The learned Judges were of the view that in absence of any other material, the case of the respondent was fully supported by the declaration form that he had brought the currency from Afghanistan, which he could import without any restriction. The appellants also supported the impugned order of confiscation on an argument that the facts established on record con stitute an attempt on the part of the respondent to smuggle foreign currency out of Pakistan. In this connection the learned Judges observed :‑

"He had not boarded at Islamabad any flight going out of the country. Actually he had not boarded any flight at Islamabad. He had retur ned to Peshawar and from there he intended to go to Karachi, for which purpose he had booked a seat from Peshawar to Karachi by domestic flight PK‑329. This flight was to terminate at Karachi. Even if he had boarded this flight from Peshawar, he would not have committed any offence of smuggling because he had to leave that fight at Karachi and the intended to go out of Pakistan, then he was bound to get a Looking in some other flight which was to go out of Pakistan. It cannot be concluded by any stretch of imagination that a person going from Peshawar to Karachi had committed the offence of smuggling any goods out of Pakistan for the simple reason that be was still in Pakistan and had not made any attempt to go out of Pakistan. His arrest at Peshawar on the allegation that he was attempting to smuggle foreign currency out of Pakistan was uncalled for and illegal. At that stage there was neither any attempt at or actual smuggling out of Pakistan. At the most it could be a preparation towards the commission of the offence of smuggling but it was neither attempt at or actual smugg ling till that, stage.

In view of the aforesaid findings the learned Judges of the Division Bench came to the conclusion that the foreign currency seized from the possession of the respondent was net liable to be confiscated and accep ted the constitutional petition of the respondent with the result as already stated.

5. Leave was granted by this Court in order to consider whether the constitutional petition filed by the respondent was competent having regard to the fact that, an equally efficacious remedy was available to the respon dent under the law by way of appeal and revision before the statutory authorities which he had failed to avail. The other question for con sideration was whether it was fit and proper for the learned Judges of the High Court to have exercised constitutional jurisdiction and prejudge then issues which were ultimately to go before a competent Court of law in a criminal prosecution against the respondent.

6. Learned Deputy Attorney‑General frankly conceded that the law as it stood n the relevant date there was no prohibition or restriction on the importation of foreign exchange into Pakistan. He, however, urged that on the; established facts on record the Collector of Customs was justified in holding that the respondent was guilty of offences falling under section 156 (8) and (9) of the Customs Act, 1969. The main con tention on the learned Deputy Attorney General was that the word "smuggle', as defined by section 2 (5) of the said Act includes an attempt to smuggle and the case of attempt was fully brought home to the respondent.

7. Now clause (8) of section 156 deals with the offence of smuggling goods into or out of Pakistan and clause (89) provides for punishment for requiring possession of or in any way being concerned in carrying, removing, depositing, harbouring, keeping .or concealing any smuggled goods or any goods with respect to which there may be reasonable sus picion that they are smuggled goods. The learned Judges of the High Court have referred to notification No. F. E. 1/78‑SB. dated 11th May, 1978, issued by the State Bank of Pakistan by which any person could bring into Pakistan from any place outside Pakistan without limit, any currency notes or bank notes other than unissued notes or notes legal tender in Pakistan. The learned Deputy Attorney‑General has not been able to bring to our notice any notification superseding the aforesaid notification of the State Bank of Pakistan putting any embargo on the import of such currency notes. In the circumstances he has not pressed the case as that of illegal importation of foreign currency by the respondent. Indeed the findings of the Collector of Customs in the adjudi cation proceedings were also that the respondent had not brought any foreign currency from outside Pakistan but according to him the respon dent had collected the foreign currency seized from his possession locally. In view of this the learned Deputy Attorney‑General was unable to press the charge under clause (89) of section 156, for the simple reason that if there was no restriction or prohibition on the import of foreign currency notes, the possession of such notes cannot be said to be the possession of smuggled goods or goods with respect to which there may be reasonable suspicion that they are smuggled goods. As regards clause (8) of section 156 also, in view of the admitted position that there was no prohibition on the importation of foreign currency notes, there would be no question of smuggling the same into Pakistan The only question to be considered and indeed pressed by the learned Deputy Attorney‑General is whether the respondent had trade an attempt to smuggle foreign currency notes out of Pakistan so as to attract the mischief of clause (8) of section 156 of the Customs Act, 1969.

8. Now smuggling has been defined in section 2 (s) of the Customs Act, 1969, as follows:

"smuggle" means 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,‑

(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances ; or

(ii) manufactures of gold or silver or platinum or palladium or radium or precious stone, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed five thousand rupees in value ; or

(iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs‑station.

and includes an attempt, abetment or connivance of so bringing in or taking out of such goods ; and all cognate words and expressions shall be construed accordingly".

Attempt to smuggle has not been defined in the Act but clause (8) of section 156 makes the attempt to smuggle also punishable by virtue of the aforesaid definition of the word "smuggle" which is inclusive of an attempt to bring in or take out goods corning within the mischief of the maim provisions. The classic analysis of the course of conduct of a culprit from the stage of conception to consummation of crime has laid down four distinct stages, namely, (i) intention; (ii) preparation; (iii) attempt; and (iv) completed act. As observed by Sir H. S. Gour, in his commentary on the Penal Law of India, the first of the aforesaid four stage, the Criminal Codes of all countries exempt from punishment. The Penal Code or Pakistan punishes the second stage of certain offences, by constituting them separate and distinct offences. The third, namely, attempt, marks distinct advance tit the development of criminality, so that it is punishable everywhere. Ordinary then, law allows locus poenitentia only up to the second stage aster which it regards the development of the scheme as too far advanced to remain unpunished. But this has led, as the reports of cases indicate, to an important question as to when the preparation ends and art attempt begins. This is often a difficult question to resolve in the facts of a given case. The reason why intention alone cannot be punished has been explained by Gour in the following manner :‑

"The first stage is intention, and so long as the offence rests only in intention it is not punishable. So Lord Mansfield, C. J., "So long as an act rests in bare intention, it is not punishable by our laws: but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal the act becomes criminal and punishable." Intention is the determination of the will to act in a particular manner. As such, it amounts to resolution or a settled determination that a certain thing shall be done. So long as such intention does not pass beyond the stage of mental resolve or determination law cannot punish it, because law will not take notice of an intent without an act. But the moment it emerges from that stage, it ceases to be an intention and develops into a preparation."

The case in which mere preparation to commit an offence has not been made punishable present the problem to determine whether the acts or omissions committed by the culprit constitute merely preparation or amount to attempt. Often times in such cases the transition between what is preparation and an attempt is so gradual as to be almost imperceptible. The preparation to commit an offence consists in devising or arranging the means or measures necessary for the commission of the offence. It implies the taking of previous measures necessary for the crime. But it is difficult to give an abstract definition of the term "attempt", in juridical context, for it is largely a mixed question of law and fact depending upon the circumstances of each particular case. Lord Parker, C. J., in Devey v. Lee ((1968) I O B 366) has pointed out that the term has been described variously in the authorities but he has preferred to adopt the definition given in Stephen's Digest of the Criminal Law, 5th Edition (1894), which is as follows:

"An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which could constitute its actual commission if it were not interrupted."

Another definition referred to in this case was from Archbold's Criminal Pleading, Evidence and Practice, which reads as under :‑

"It is submitted that the actus reus necessary to constitute an attempt is complete it the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not 6 merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other pur pose than the commission of the specific crime."

It seems that the modern view of attempt does not make it necessary that the interruption which aborts the consummation of the crime should be the penultimate act for the completion of the crime.

9. Applying the aforesaid principles to the present case we are of the firm view that the acts done by the respondent before he was intercepted at Peshawar Airport did not constitute attempt to smuggle the alleged foreign currency out of Pakistan but at best the stage reached was that of mere preparation to commit that offence. As already discussed even if there is undoubted evidence of intention to commit the offence on the part of the offender and of preparation to carry out that intention the law does not make the person entertaining such intention or doing such acts of prepara tion culpable, so far as the offence of smuggling is concerned. Because there is always in such cases a possibility of change of mind or locus poenitentia to give up the prosecution of the criminal intent beyond the stage of preparation. We, therefore, agree with the learned Judges of the High Court, that the mere act of boarding internal flight from Peshawar to Karachi was not an act of such an approximate nature as would amount to an attempt to smuggle, although it might constitute preparation to commit that offence. The act of boarding a flight at Peshawar which terminates at Karachi is not an act forming part of series of acts which could constitute actual commission of the crime of smuggling if it were not interrupted. If any further acts had been done by the respondent to board a plane which would have taken him out of the country alongwith the contraband goods, there might have been a case of an attempt. But before he could embark upon any such act, he was intercepted at Peshawar, so that tile act attempted by him does not satisfy 'the test that the doing of the same cannot reasonably be regarded as having any others purpose than the commission of the specific crime.

10. For all these reasons there is no merit in the contention advanced by the learned Deputy Attorney‑General that the facts established on the record made out a case of attempt to smuggle foreign currency by the respondent.

11. The other contention advanced by the learned Deputy Attorney General was that the prosecution proposed to be launched against the respondent on the same facts has been seriously prejudiced by the High Court having interfered with the adjudication proceedings taken against the respondent. The apprehension entertained by the learned Deputy Attorney‑General is legally unfounded and untenable. It has been held by this Court in Adam v. Collector of Customs (P L D 1969 SC 446) that the criminal prosecution of al person who commits an offence under the Sea Customs Act in relation to the goods which are seized under the said Act by the Customs Authorities falls in a separate category. While the confiscation proceedings taken by the Customs Authorities are in the nature of departmental proceedings in, condemnation of goods for the purpose of revenue, the proceedings for criminal prosecution of a person who commits an offence under the Act in relation to those goods, are judicial proceedings for determination of the guilt of the person concerned for commission of the alleged offence and entailing the punishment for the same. It was held that both are concurrent remedies but each is independent of the other and therefore the cannot be deemed to be mutually exclusive. They can proceed simul taneously and neither can remain under suspension for the sake of the other. This decision is sufficient to dispel any doubt entertained by the department in proceeding with the trial of the accused concerned with the goods involved in this case.

12. No other argument was advanced by the learned Deputy Attorney General. The result is that this appeal fails and is dismissed with costs.

M. B. A. Appeal dismissed.

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