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Special Criminal Acquittal .Appeal No. 38 of 1984 and Special Criminal Revision Application No. 7 of 1984, heard on 8th July, 1986.

‑‑‑S. 265‑K‑‑Customs Act (IV of 1969), S. 156(1)(89) & 178‑‑Appeal against acquittal‑‑ Customs staff raiding house of accused M.I ' intercepted car driven by accused 'M.A.' coming out of house‑‑Ten V.C. Rs . and 168 Cassettes seized from car‑‑Accused 'M.A.' pleading guilty while accused 'M.I.' pleading not guilty--Accused 'M.I.' not accompanying coo‑accused‑‑No evidence showing goods to be concealed to house of M.I.'‑‑No evidence available showing his possession of seized goods Accused pleading guilty not implicating co‑accused‑‑No adverse presumption held, could be drawn under S. 178, Customs Act against accused 'M.I.' and no useful purpose would be served even if re‑trial was ordered.

P L D 1978 Kar. 774; 1984 P Cr. L J 3096; 1980 P Cr. L J 349; 1981 P Cr. L J 66 and Bulo Khan and another v. The State PLD 1967 Kar. 608 ref.

‑‑‑Ss. 2(s) & 156(1)(8) Plea of guilty‑‑Conviction whether can be set aside‑‑Revisions for enhancement of sentence‑‑V.C.Rs. and cassettes recovered from car driven by accused‑‑Accused pleading guilty‑‑V . C . Rs and cassettes not specifically notified under S. 2(s)‑‑Subsequent notification superseding earlier one mentioning V . C . Rs and cassettes‑ Possession of seized goods not notified under S. 2(s), held, could net constitute offence under S. 156(1)(8)‑‑Charge, trial and conviction for possession of such goods would be unlawful and without any legal consequence‑‑Conviction and sentence set aside in circumstances.

P L D 1978 Kar. 774; 1984 P Cr. L J 3096; 1980 P Cr. L J 349; 1981 P Cr. L J 66 and Bulo Khan and another v. The State PLD 1967 Kar. 608 ref.

Abdul Sattar for Appellant.

S.M. Aamir Naqvi for Respondents.

Date of hearing: 8th July, 1986.

The Criminal Acquittal Appeal and Criminal Revision Application are directed against the judgment of the Special Judge Customs and Taxation, Karachi, dated 30‑7‑1984, delivered in Case No. 206 of 1983. Both were disposed of by a single short order, dated 8‑7‑1986. The following are the reasons in support of the said order.

2. The brief facts leading to Case No. 206 of 1983 are, that on 18‑8‑1983 at about 4 p. m. in pursuance of an information, a Customs party, headed by Preventive Officer, Mr. Laiq Ahmad, reached near the residence of Muhammad Irfan, (the respondent in Acquittal Appeal) in North Nazimabad, Karachi. The Customs party noticed a Mazda Car bearing registration No. 905‑776 emerge from this house and dash towards city. The Customs party intercepted the said car in block "C" in North Nazimabad, Karachi. The car was being drivers by Muhammad Azam (respondent in Criminal Revision Application). On the search of his car the customs party secured 10 V.C.Rs and 168 Cassette which were seized. Muhammad Azam was arrested and notice under section 171 of Customs Act was served upon him. Such F.I.R. was lodged and after investigation both the respondents were challaned before the learned Special Judge Customs and Taxation, Karachi. The learned trial Judge framed charge under section 156(1)(89) read with section 178 of the Customs Act to which respondent Azam pleaded guilty and prayed for mercy. Respondent Muhammad Irfan, however, pleaded not guilty and moved application under section 265‑K, Cr.P.C. By the impugned judgment, the learned trial judge acquitted Muhammad Irfan under section 265‑K Cr.P.C., but convicted Muhammad Azam and sentenced him to undergo imprisonment till rising of the Court and to pay fine Rs.40,000 or in default to further undergo imprisonment for four months. The State, being dissatisfied with the judgment, filed appeal against acquittal of Muhammad Irfan and also filed Revision Application for enhancement of the sentence passed against Muhammad Azam.

3. I have heard the learned counsel for the State, Mr. Sattar and the learned counsel for both the respondents Mr. Aamir Naqvi. I have also perused the record of the trial Court.

4. The only evidence against respondent Muhammad Irfan is, that the Mazda Car, from which the V . C . Rs . and V C . R . cassettes were secured, was found by the Customs party to come out from the residence of Muhammad Irfan. He is charged to be liable of the substantive offence under section 156(1)(89) by virtue of section 178 of the Customs Act 1969. Section 176 reads as under:---

"If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if goods were found on such person."

5. The prosecution story as related above, does not disclose, that Muhammad Irfan was found together in the company of Muhammad Azam when the goods were seized from the car. As a matter of fact, Muhammad Irfan was not seen by the Customs party at all, but only they allegedly saw the car coming out from his residence. No presumption adverse to him can be drawn by applying section 178 of the Customs Act.

6. There is no evidence, that the goods were concealed or deposited in the house of Muhammad Irfan. Nor there is any proof that he was in possession of or had any concern with the said goods. Goods were found from the car which was being driven by Muhammad Azam. Muhammad Azam pleaded guilty to the charge and in his statement in the Court, he does not implicate co‑accused Muhammad Irfan. The mere fact, that he claims to be nephew of Muhammad Irfan would not make Muhammad Irfan liable for the offence. As already pointed even ray application of section 178 he cannot be made liable for the offence, if any, committed by Muhammad Azam. The mere fact, that the car came out of his house would not raise any presumption, that he was in possession of said goods or that he was in any way concerned with deposit or removal of the said goods.

7. The learned counsel for the state, Mr. Sattar candidly conceded, that prosecution has not been able to collect sufficient evidence against Muhammad Irfan, so that even if retrial is ordered by this Court, the case can end in conviction. Under the circumstances, no useful purpose will be served by setting aside the judgment acquitting respondent Muhammad. Irfan or ordering ,retrial of the case.

8. Mr. Aamir Nanvi, learned counsel for the respondent has urged, that no offence of smuggling is made out against either respondents as the goods viz. V C.Rs and V.C.R cassettes wee not notified articles under section 2(s) of the Customs Act. Section 2(s) which define smuggling reads as under:‑

"2(s) '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 paychotropic substances; or

(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones 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

"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."

8. The bare reading of this provision of law would show, that the goods in question are not specifically mentioned in this subsection but if they were notified by the Federal Government in official Gazette then any act of taking them out of Pakistan or bringing them in Pakistan in breach of any prohibition or restriction or without payment of customs duty would constitute an offence of smuggling The alleged offence has taken place on 18‑8‑1983. At the relevant time, the Federal Government's notification issued under S.R.O. No. 1426(1)/73, dated 5‑10‑1973 was in force under which certain goods were notified under section 2(s) of the Customs Act. V . C . R . or V . C . R . cassettes are not specifically mentioned in this notification but item No. 12 of this notification 'reads as under:‑‑----

"'Electrical and electro‑thermic domestic appliances including air‑conditioners refrigerators."

This notification has now been superseded by another notification vide S.R.O. No. 4491(1)/85, dated 23‑5‑1985, which notifies fresh list of articles under section 2(s). Articles shown against item Nos. 17, 18, 19, 20 and 21 are relevant and are reproduced as under: ‑---

"(17) Electrical and electro‑thermic domestic appliances.

(18) Air conditioners.

(19) Video recording and reproducing apparatus.

(20) Audio cassettes and Video cassettes.

(21) Heads of V.C.Rs. V.C.Ps. or tape-recorders".

9. It is argued by Mr. Aamir Naqvi, learned counsel for the respondents, that prior to this notification of 1985 the V . C . Rs . , or cassettes were not notified articles. He argues, that if these articles were included in the heading electrical and electro‑thermic domestic appliances then they would not have been notified under new heads separately in the notification 1985. He further argues, that V . C . Rs . and V . C . R . cassettes cannot be considered as domestic appliances. He further argues, that previous notification of 1973 is not clear as to whether V . C . Rs . and cassettes are included under the head electrical and electro‑thermic domestic appliances which however, specifically mentions air-conditioners and refrigerators. He further argues, that in case of such ambiguity the inference will always be drawn in favour of accused persons. He further argues, that under Customs Tariff, the V‑C" R. is shown as musical instrument and not as electrical goods. He hall produced the photostat copies of the relevant provisions of the classification of Customs Tariff. The Video recordings or reproducing apparatus is shown under item No. 92.11 under heading Gramophones etc. The electrical goods are shown under item No. 85.01 and the electro mechanical domestic appliances are shown at item No. 85.06. The V . C . Rs . and V . C . R . cassettes are not mentioned under item No. 85.01 or item No. 85.06.

10. Mr. Sattar, the learned counsel for the State, argues, that V . C . Rs . and cassettes will be deemed to be electrical domestic appliances as notified under head No. 12 in Notification of 1973, but concedes that it is not clear from the said notification, as to whether these goods are included in the item No. 12 or not. He concedes, that atleast V . C . R . cassettes cannot be considered as electric or electro thermic domestic appliances. He has also not been able to explain why in the Notification of 1985 the V . C Rs. and cassettes are given separate heading. He has also not been able to explain as to what led the Government to clarify it by notifying them separately in the Notification of 1985.

11. The V . C. Rs . and V . C . R . cassettes are admittedly not specifically mentioned in the Notification of 1973 which was in force at the time of the alleged commission of the offence. The 1985 Notification which supersedes the Notification 1973, specifically mentions V . C . Rs . and V . C . R. cassettes as notified articles. This can lead to only one conclusion that before the Notification of 1985 was issued, these articles were not notified by the Federal Government under section 29(s) of the Customs Act. This Court has time and again quashed the proceedings taken against the accused persons for smuggling articles which articles were not notified. Reference may be made to P L D 1978 Kar. 774, 1984 PCr.LJ 3096, 1980 P Cr. L J 349 and 1981 P Cr. L J 66.

12. However, the question arises whether this Court can set aside the conviction awarded to Muhammad Azam on his own plea of guilt. Admittedly, no appeal has been filed by Muhammad Azam nor any Revision Application has been filed by him. Such question was considered by this Court in the case of Bulo Khan and another v. The State reported in P L D 1967 Kar. 608, when some convicts had filed appeals while others had not filed the appeals. It was held as under:‑‑----

"It is true that section 412 of the Code of Criminal Procedure constitutes a complete bar to the maintenance of an appeal against a conviction that has proceeded on a plea of guilty except on the point of extent and legality of the sentence.

But the "plea of guilty" which an accused person enters in a case has to be related to the facts of the prosecution case as stated against him and as established on the record. If the facts alleged against an accused person do not themselves constitute an offence, even if they are proved or admitted, the plea of guilty by an accused person in relation to those facts would amount to admission of proved facts against him, without converting those facts into a penal offence, of which each ingredient has to be satisfied according to law. Magistrates should not blindly accept the plea of guilty made by accused persons if criminal cases without carefully analysing as to what that plea actually amounts to in relation to the proved facts of the case. To convict a person on his plea of guilty the accused must be shown to have admitted distinctly each and every fact necessary to constitute an offence. Where a plea of guilty bars, the remedy of appeal under section 412 of the Code of Criminal Procedure, it does not bar a revision before a High Court under section 439, Cr.P.C. It is true that under subsection (5) of section 439 of the Code of Criminal Procedure no revision shall be entertained at the instance of a party who could have appealed where an appeal lay under the Code, but this would be an additional reason for entertaining a revision petition where an appeal is barred, such as in cases of conviction on 'plea of guilty'. As I have, held, 'that the entire prosecution case was misconceived, I must give effect to that finding, in the case of the other accused persons, namely, Usman, Muhammad Saleh and Muhammad Khan, even though, they did not appeal and have not moved a revision petition in this Court. Their convictions are set aside and the sentences of fine are remitted. The fine, paid by them, shall be refunded."

14. As the seized goods were not notified under section 2(s) of the Customs. Act, their possession even if could not proved constitute an offence under section 156(1) (89) of the Customs Act. Therefore, the charge, trial and conviction for the possession of the said goods, were unlawful and without any legal consequence. As such, the appeal against acquittal as well as the criminal revision application are dismissed and conviction awarded to respondent Muhammad Azam is set aside. The fine if paid by Muhammad Azam be refunded to him.

S. A. Appeal and Revision dismissed .

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