In a case of smuggling, Ch. Nazir Ahmad, Magistrate section 30, Kasur convicted and sentenced 11 persons, vide his judgment, dated 2 September 1967. Another accused person named Ghulam Rasul absconded after the conclusion of the evidence but before the arguments in the case. He, however, was apprehended soon thereafter. The same learned Magistrate convicted him by a separate judgement, dated 19 September 1967. Three separate appeals have been filed by the 12 convicts. Musta, Nur Muhammad, Shingara Singh, Shabbeg Singh, Kartar Singh and Balbir Singh are appellants in Criminal Appeal No. 633 of 1967 and challenge their conviction and sentence of five years' R. I. Each under section 167 (8) of the Sea Customs Act. In the same appeal, Barkat Ali and Umar Din have challenged their conviction and sentence of one year's R.I. Each under section 9 of the Opium Act, to run consecutively with the sentences under section 167 (8) of the Sea Customs Act. In Criminal Appeal No. 668 of 1967, Ghulam Rasul has challenged his conviction and sentence of five years' R. I. Under section 167 (8) of Sea Customs Act. As all the three appeals arise out of the same case and same evidence, therefore, they are being disposed of together by this judgment.
2. Briefly stated, the facts are that in the evening of 18 March 1966, the S. H. O. Of Ganda Singhwala Police Station organised a raid party consisting of some men from the police force, some from the Rangers headed by a Sub-Inspector and three other persons from the surrounding locality. The purpose was to arrange a nakabandi at a place about three furlongs from the Indian border on the way from a village named Bhikiwind which is at a distance of about a mile from that place. This raid party was headed by a D. S. P. Of Police. At about 7.30 p.m., 12 persons who were subsequently tried as the accused persons in this case were seen coming from the side of village Bhikiwind. Each one of them was carrying a bundle on his head. When they reached near the place of nakabandind th th they were encircled by the raid party. Barkat Ali appellant was leading. He shouted 'the following expression of surprise and fear;- "Umar Din we have been caught". '
Umar Din is another appellant who was at the rear end of the accused party. He threw his bundle and ran away. But before he could effect his escape, he was identified by Allah Bakhsh (P. W. 5) and Qaim Din (not produced) in the torch light which was thrown at the run away accused by one of the police party. The remaining accused appellants were; arrested at the spot. From the bundle carried by Barkat Ali appellant, 18 seers of non-excise opium was recovered while the bundle thrown away by Umar Din appellant contained another weight of 18 seers of the same commodity.
All the other ten accused appellants were found to be carrying about one maund of cinnamon each. All the 12 bundles were taken into possession in due course, ride various recovery memo. The details of which need not be given here. Two samples of opium were taken out from each one of the two opium bundle mentioned above. On chemical analysis, that commodity has been proved to be non-excise opium.
At the trial, seven witnesses were examined by the prosecution. Two of them are formal. Bakhsha (P. W. 3) and Allah Bakhsh (P. W. 5) are non-official witnesses of the raid, nakabandi and the recoveries from the appellants. Muhammad Baqar Khan, A. S. I. (P. W. 4) was produced for cross- exami--nation but the defence declined to cross-examine him. S. I. Ch. Bashir Ahmad (P. W. 6) was in charge of the raid party, of course under the supervision of a D. S. P., and Haji Parvez Ahmad (P.
W. 7) is the Sub-Inspector Rangers, Commander of B. Company, with headquarters at Ganda Singhwala. The eye--witness account fully implicates all the appellants and is consistent with the prosecution version.
The various defence pleas taken by the appellants at the trial are as follows:- Umar Din simply denied the occurrence and the recovery and said that the case against him was false. He, however, produced two defence witnesses to show that the recovery of all the bundles took place from the Dari of village Bhikiwind; and that after a talk of about 15 minutes by the son of Dari with the Sub-Inspector of Police, all the Muslim accused persons, were called and arrested by the police. The Sikh accused persons were not present then, but were subsequently brought in the village by the Rangers. None of the other appellants produced any defence. Barkat Ali, Noor Mohammad, Ahmad Din and Musta appellants simply denied the allegations and said that they were innocent and the case was false. They did not give any other explanation for implication in the case. Nabi Bakhsh, Ghulam Rasul and Inayat appellants, however, apart from pleading general denial, also suggested that they have been involved in a false case due to enmity with Dart. One of them, i.e., Inayat appellant, pleaded that the recovered property belonged to Dari. All the four non- muslim accused belonging to various villages in the Saddar Police Station of Ferozepur (India) pleaded general denial and further that they had entered the Pakistan territory under a mistaken belief that the area, they were in was still with India after the Indo-Pakistan War. And that they were arrested by the Pakistan Rangers at Annoki Post which post was occupied by India during War but was reoccupied by Pakistan before this occurrence. This set of accused persons, however, did not produce any defence. It may be mentioned here that all the four accused persons in this set were also convicted under section 4 of the Pakistan Control of Entry Act, 1952, in respect of their entry in the territory of Pakistan, in a separate trial.
3. The learned Magistrate believed the entire prosecution evidence and convicted and sentenced appellants as stated above. The learned trial Magistrate has dealt with about half a dozen discrepancies and contradictions in the prosecution evidence pointed out by the defence in the arguments before him. The learned counsel appearing in support of these three appeals did not consider it necessary to read the evidence before me, probably because they thought that they would not gain any point from the statements made by the witnesses. I, however, in order to satisfy myself, have gone through the entire evidence and the statements made by the accused persons and have also seen the other document proved during the trial. I find nothing which could be treated as an error committed by the learned Magistrate, in so far as the appreciation of the evidence is concerned. Therefore, in so far as the findings on the factual side are concerned, the reasons given by the learned Magistrate in support thereof are unexceptionable.
4. Ch. Abdul Haq, the learned counsel for the appellants, (in Criminal Appeals Nos. 648 and 668 of 1967) has, however, pointed out some features of the case which, he thought, were improbabilities and that, therefore, the prosecution case was a concoction.
He argued that it was unbelievable that all the accused persons should proceed from village Bhikiwind to the Indian border in a single line at about 7-30 p.m. Because they could have realised that, in this way, detection was possible I was also pointed out that there is a check post Rangers in village Bhikiwind. It was month of March and according to the witnesses, at the time of actual raid the darkness had set in. Therefore, keeping in view the peculiar needs o people, who indulge in the act of smuggling, to say that the would not in any case, have selected that time for transferring the goods across the border, will just be a surmise and cannot be s4pported by any cogent reason. It is true. That P. W. 7 has admitted that there is a Rangers Post in village Bhikiwind itself, but he has also stated that the person/persons manning that post were not informed about the raid and nakabandi operations. Therefore, there is nothing impossible in the accused persons sneaking out of the village in groups of threes or fours and, at the same time, taking care not to be detected by the Rangers in the Post who might be busy, at that time, in their usual evening activities including taking of meals. Moreover, it is not the prosecution case that all the accused persons, in fact were coming from village Bhikiwind. The prosecution case is that they were caught red-handed at the place of nakabandi. In this very connection, the learned counsel also pointed out that the prosecution version that all the accused persons were coming in a single lines makes the story all the more improbable, because the criminals would not behave in that manner. The learned counsel has not correctly read the evidence. It is true that one witness stated that all the accused persons were coming in a line, but, another witness said that they divided themselves into groups of threes and fours. Both the statements can be consistent as the. Accused persons could remain in groups of threes and fours and still be only one deep in a single line. This method of crossing an inter--national border appears, to me, to be most practical and safe. The defence version of, at least, some of the appellants also cuts at the argument raised by the learned counsel. According to them the recoveries took place from village Bhikiwind from Dari smuggler. It is also in the defence plea that there are two factions in Bhikiwindi village, one of the Muslim accused persons and the other of said Dari. If their version of the story is to be believed, even then a smuggler of Bhikiwind was keeping this almost a cart load of to be smuggled goods in the same village where there is a Rangers Post. Therefore, to say that the existence of a Rangers Post is a sure answer to any activity as to smuggling in a village, is not a sound argument. I may also mention here that there was no reason for a police-cum---rangers raiding force of about two dozen persons manned by, at least, four officers and supervised by a D. S. P., to have allowed Dari and his son, the allegedly real culprits, to go scot-free and to falsely implicate all the Pakistani, accused persons alongwith four Sikh accused persons who had, admittedly, nothing to do with said Dari smuggler. It has already been mentioned that the defence with regard to recovery from Dari has not been raised by many Pakistani accused persons, in their statements under section 342, Cr. P. C.
5. The learned counsel next contended that it was a dark night and the identification of Umar Din appellant was not possible. There are four items of evidence of identification against Umar Din, namely---
(i) shouting the name of Umar Din by Barkat Ali appellant at the time of raid.
(ii) throwing the torch light by a police officer at the run--away culprit. There being a torch with some police officer is not, at all, improbable and throwing of light at a running _ culprit is also not improbable. In fact, it was quite natural.
(iii) the identification of Umar Din, in that light, by Qaim j Din (not produced) and Allah Bakhsh (P. W.
5). Both these persons knew Umar Din appellant, and if the torch light was thrown at Umar Din it was quite possible that he might have been identified by the said witnesses. The statement of Allah Bakhsh has been believed by the trial Magistrate and so have the statements of police and ranger officers been believed. This shows that the said two persons. Did, in fact, identify Umar Din at the time of the raid and did inform the police officers about this identification soon after the raid.
Therefore, their statements being relevant, in respect of the identity of Umar Din and having been believed, there is nothing in law which could be said as being against the adoption of that course, at the trial.
(iv) All the facts mentioned in the above three items of evidence were stated by Ch. Bashir Ahmad, S. H. O., in the report Exh. P. A. Which was prepared at 1000 p.m. On the same day, of course after weighing whole of the quantity of the opium and cinnamon contained in all the bundles. This report was formally registered as F. I. R. (Exh. P. A./1) at 11-30 p.m. At the police station. The contents of the F. I. R., are, therefore, in corroboration of, at least, what was stated by the S. H. O. At the trial.
The above evidence, to my mind, is sufficient to prove the identity of Umar Din as being the person who accompanied all the appellants at the time of raid and that he was carrying a bundle of non- excise opium. I The learned counsel, in this connection, also referred to the fact that Qaim Din, one of the persons who identified Umar Din, has not been produced. There is nothing wrong in it. Allah Bakhsh, one of the two persons, has been produced, and it has been stated by the P. Ws. That Qaim Din also in fact identified the appellant. The conduct of Qaim Din identification, at and soon after the raid, is relevant under section 6 of Evidence Act and the same having been proved by other witnesses, his non-produc--tion as a witness was not such a circumstance so as to become fatal to the case.
Therefore, I find no force in this contention either. No other point was urged in so far as the facts and the conviction on merits of the case is concerned. Some arguments were raised in respect of sentence which I will deal within the last part of the judgment.
6. The learned counsel also raised the following legal contentions:-
(i) thattheoffence committed by the appellants was under section 5 of the Import and Exports (Control Act, 1950; therefore, no Court could take cognizance thereof without a complaint bya Customs Collector or any officer of Customs authorised in writing in this behalf by him, as provided in section 6 of the said Act. The report under section 173, Cr. P. C. In this case was submitted by Ch. Bashir Ahmad, S. H. O. Ganda Singhwala Police Station. Therefore, accord--ing to the learned counsel, the learned Magistrate could not take cognizance of the offence.
(ii) that the offence committed by the appellant, though punished by the learned Magistrate under Sea Customs Act of 1878, falls under the Land Customs Act. 1924; and because the punishment provided in section 7(3) of the Land Customs Act is only six months R. I. Or fine up to Rs. 1000 or both together with confiscation of the goods, therefore the appellants could not be sentenced to six years' R. I. Which is provided only under section 167(8) of the Sea Customs Act. In this connection, the learned counsel argued that the addition of the words "and the trial of offences" in sub-- section (1) of section 9 of the Land Customs Act which enacted certain provisions of the Sea Customs Act by reference, was only in respect of the trial and not with regard to the punishment which, according to the learned counsel, does not form part of the trial.
(iii) that though Ch. Nazir Ahmad, the learned Magistrate who convicted and sentenced the appellants, was a section 30 Magistrate and was, under the Criminal Procedure. Code, empowered to award a sentence of more than two year's R. I., yet he was not specially empowered by the Provincial Government, under section 193-B of Sea Customs Act, to award a sentence of more than two years; therefore, the trial held by the learned Magistrate is illegal and in any case, the sentence, passed by him of more than two years' R. I. Is a nullity.
7. Before dealing with the contentions of the learned counsel it may be mentioned that on my specific question, as to whether there was any objection in respect of the- prohibition of export of cinnamon from Pakistan, the learned counsel first stated that the offence was only technically proved, provided a notification was produced; but he immediately then said that the prohibition must be there and that this matter need not be taken note of by me. However, I called upon the learned counsel for the State who was assisted by a learned counsel representing the Customs Department, to show me the relevant notification. It is admitted that- cinnamon is not produced in Pakistan and is an imported item. Notification No. S. R. O. II, dated 15th January 1959, issued by the Ministry of Commerce, Government of Pakistan under subsection (1) of section 3 of Imports and Exports (Control) Act, 1950, prohibited. The export to any place outside Pakistan of any goods of the description specified in the Schedule annexed thereto. Item No. 1 in the Schedule is "All imported goods in their original or unprocessed forms". Similarly, a notification issued under the same provision and printed at page 359 of the Pakistan Customs Manual, complied under the provisions of section 204 of the Sea Customs Act, by the Central Board of Revenue (1956 Edition) shows that the Government has prohibited the import by sea, land or air from any country outside Pakistan ,of any goods of the description specified in the' Schedule annexed / thereto. At item No. 26 of Group P-6 at page 373 of the same Manual "spices, all sorts, not otherwise specified" are mentioned as such goods. Admittedly, cinnamon is included in spices and its import being prohibited, its export is also prohibited by virtue of the notification mentioned earlier. Subsection (3) of section 3 of the Imports and Exports (Control) Act, 4'950, provides that all goods to which an order under subsection (1) of section 3 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, and all the provisions of that Act shall have effect accordingly, except section 183 thereof which will apply with substitution of the word "may" for the word "shall" used therein. Section 183 of the Sea Customs Act is not relevant for the present discussion.
The effect of the above mentioned provisions and the orders/notifications is that if any person exports or attempts to export any goods, the export of which is for the time being prohibited or restricted by or under the Sea Customs Act, of course read with section 3(3) of the Imports and Exports (Control) Act, 1950, he commits an offence defined in section 167 item (8) of the Sea Customs Act which is punishable with six years' imprisonment and to a fine not exceeding five times the value of the goods, and in addition shall also be liable, if the Magistrate in his discretion so orders, to the punishment of whipping. The cinnamon being a commodity within the above mentioned prohibition, its export or attempt therefore is an offence under section 167(8) of the Sea Customs Act. With regard to the opium as well, it may be mentioned that it is a dangerous drug as defined in section 2(h) of the Dangerous Drugs, Act, 1930. Section 7 of the same Act prohibits the export from Pakistan of any dangerous drug, of course in a form other than `prepared opium' and save-in accordance with rules made under subsection (2) of section 7 and with the conditions of any licence for that purpose. Section 38 of the same Act provides that all prohibitions and restrictions imposed by or under the said Act, on the import into or export from Pakistan, shall be deemed to be a prohibition and restriction imposed under section 19 of the Sea Customs Act.
Therefore, the non-excise opium which was recovered from Barkat Ali and of the Umar Din appellants also falls within the mischief of the offence defined in section 167(8) of the Sea Customs Act. The result of the above analysis of the various provisions, in brief, is that all the appellants were correctly charged of having committed an offence under section 167(8 of the Sea Customs, Act. I will now proceed to examine the arguments raised by the learned counsel, in the light of the above finding with regard to the offence committed.
8. The first two contentions raised by the learned counsel mentioned in paragraph 6 of this judgment, can be considered together. Tamjid Ali and others v. The State (1969 P Cr. L J 324) was cited in support of the contention that a Magistrate could take cognizance of an offence punishable under section 5 of Imports and Exports (Control) Act, 1950, and section 167(8) of the Sea Customs Act, on the report of the police or East Pakistan Rangers, and that the report must be of a Customs Collector or any officer authorised by him in this behalf. Additional Advocate --General v.
Hamtho (1968 P Cr. L J 886) was cited in support of the contention that the words "and the trial of offences" in section 9 of the Land Customs Act did not include the punitive provisions (as to sentence) of Sea Customs. Though the contention raised by the learned counsel in this case was not the matter being dealt with in that case, yet the learned counsel sought to take support from the observations made at page 888 of the report. It is pointed out, with respect, that it appears that a ruling by their Lordships of the Supreme Court on the precise questions, cited by the learned counsel for the State before me, was not brought to the notice of the learned Judges who decided the above mentioned two cases. It is Noor Hussain v. The State (PLD 1966 SC 89). The appellant in the case before their Lordships of the Supreme Court was convicted and sentenced to two years' R.
I. Under section 167(8) of the Sea Customs Act for having imported into Pakistan 30 seers of cardamon, in contravention of the prohibition contained in the Sea Customs Act. Leave was granted to consider the following two questions:- "(1) Whether the complaint was itself competent by reason of the fact that it had not been made by Customs Collector or an officer of the Customs Department duly authorised in that behalf?, and
(2) Whether the Magistrate, who tried the case, had jurisdiction to try the offence which at the relevant time was punishable with a maximum sentence of 10 year's rigorous imprisonment and, as such, triable only by a Sessions Court or by a Magistrate exercising powers under section 30 of the Code of Criminal Procedure."
The argument raised before their Lordships with regard to point noted at No. (l) above was that the Sea Customs Act was not applicable to the case and the appellant was wrongly convicted under section 167 (8) thereof and that the offence was under Imports and Exports (Control) Act, 1950, or.
The Land Customs Act, 1920. Their Lordships observed as follows:- "It is admitted in the present case that there was a notification under subsection (1) of section 3 of the Imports and Exports (Control) Act prohibiting the import and export of spices save upon a licence issued in that behalf. In terms of subsection (3) of section 3 of the Imports and Exports (Control) Act. This notification was to be deemed to be also a notification under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act applied except for those of section 183 thereof. The contention, therefore, that the offence committed by the appellant could not come within mischief of the Sea Customs Act is without any substance, for the notification under the Imports and Exports (Control)Act made the provisions of the Sea Customs Act applicable, as- it was also to be deemed to be a notification under section 19of the Sea Customs Act.'
The above observation was with regard to the argument raised on the- basis of the provisions of the Imports and Exports (Control) Act, 1950. With regard to the argument raised on the basis of the provisions of the Land Customs Act, their Lordships observed, at page 93 of the report as follows: "The argument that ' an offence under the Land Customs Act could only be taken cognizance of on the complaint of a Land Customs Officer and not a police officer is wholly irrelevant, for, the prosecution in the present case was under the Sea Customs Act and not under the Land Customs Act."
The ratio decidendi, as it appears from the above quoted observations, is that even if the act done in the case before their Lordships was an offence under section 5 of the Imports and Exports (Control) Act, 1950, or one under the Land Customs Act, 1.924, this would not deprive the State of prosecuting the offender under the Sea Customs Act, 1878, if the same act did not fall within the definition of an offence under the latter Act. And if the State prosecutes the offender under the latter Act only, procedures or other considerations with regard to the prosecutions under the former two Acts would be wholly irrelevant. Therefore, the contentions of the learned counsel based on the fact that, no complaint was lodged under section 6 of Imports and Exports (Control) Act, 1950, or the lesser punishment provided in an offence under the Land Customs Act, are not relevant in this case because the appellants were prosecuted, charged and convicted of an offence under the Sea Customs Act and not under the two other Acts.
9. Though the discussion for the decision of this case on the first two contentions raised by the learned counsel is, to my mind concluded by reference to the ruling of their Lordships in the case of Noor Hussain, yet it will not be out of place to make some comments on those contentions.
The offence under the Imports and Exports (Control) Act, 1950, is defined in section 5 thereof which has "penalty" as its heading. It is provided in this section that if any person contravenes any of the provisions of this Act, or any order made or deemed to have been made under the Act or the rules made thereunder, or makes use of an import or export licence other--wise than in accordance, with any condition in that behalf imposed under this Act, he shall, without prejudice to any confisca--tion or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878, as applied by subsection (3) of section 3 of the former Act, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. Section 6 reads as follows :-- "6. o Court shall take cognizance of any offence punish--able under section 5 except upon complaint in writing made:-
(a) in the case of an offence which is punishable both under this Act or the rules made thereunder and also, whether by confiscation or otherwise, under the Sea Customs Act, 1878, by a Customs Collector or by an officer of Customs authorised in writing in this behalf by a Customs Collector, or
(b) in the case of any other offence, by the, Chief Controller or by an officer authorised by him in writing in this behalf It is clear from above that the limitation on taking of cognizance by a Magistrate is only in respect of an offence punishable, under section 5 of .The same Act. " This prohibition cannot, by any principle of interpretation of statutes, be extended to the cogni--zance of an offence under section 167 of the Sea Customs Act. The reference, in sub-clause (a) of section 6, to punishment by confiscation or otherwise under the Sea Customs Act, 1878, is only a reiteration of the binding effect of the provisions contained in the opening part of section 6, meaning thereby the even if an act is punishable under the Sea Customs Act, that fact will not obviate the necessity of the filing of a complaint by the specified officer, if in addition to the prosecution under the Sea Customs Act the same person, for the same act, is intended, to be prosecuted for an offence under section 5 of the Imports and Exports (Control) Act, 1950. ' This supposition is further streng--thened by the use of the words "he shall without prejudice to any confiscation or penalty which he may be liable under the provisions of the Sea Customs Act, 1878" in section 5. This means that the Legislature, while enacting section 5 was conscious that a person may be liable to a penalty under the Sea Customs Act and without prejudice to that may also be liable to the penalty under section 5, The learned counsel tried to argue that the use of the word "penalty" in section 5 is only with reference to the penalty by way of fine, etc. By the Customs Authorities and not the penalty of punishment for an offence. As mentioned above, the use of the word "penalty" in section 5 has a direct connec--tion with the subject dealt with in that section, because that subject is described as "Penalty". Moreover section 167 of the Sea Customs Act falls under Chapter XVI which relates to "offences and penalties". Not only this, the Schedule under section 167 has its third column of "penalties" and against item No. (8) the penalty mentioned is, as stated above, of punishment by way of imprisonment, fine or whipping. Therefore, there is no force in the argument of the learned counsel that the penalty mentioned in section 5 is not the punishment provided in item No. (8) of Schedule to section 167 of the Sea Customs Act.
The result is that notwithstanding the punishment provided under section.167 of the Sea Customs Act, the offender can, in addition, also be prosecuted and tried under section 5 of the Imports and Exports (Control) Act, 1950. This type of legislation with regard to offences is not only found in the laws relating to import, export, customs and smuggling but also with regard to offences relating to corruption. By an amendment in 1953, in subsection (4) of section 5 of the Prevention of Corruption Act (11 of 1947), it was provided that the provisions of section 5 there-- of shall be in addition to and not in derogation of any other law for the time being in ford and nothing contained therein shall exempt public servant from any proceeding which might, apart from those under that section, be instituted against him. I had an occasion of interpreting this provision vis-a-vis the provisions contained in section 409, P.P.C., in Muhammad Sadiq Javed v. The State (PLD 1969 Pesh. 12) and had held that the Prevention of Corruption Act saved the trial of an offender under two different laws, one being the Prevention of Corruption Act and the other the ordinary law contained in the Penal Code. Though the circumstances of that case and the discussion of the question relevant thereto are different from the present case, bet the analogy can be drawn that a penal statute, by creating a fresh or new offence, can save the operation of earlier statutes to respect of similar offence if con--stituted of the same facts. In the present case, as observed earlier, ate intention of the Legislature was never that if a persons prosecuted under the Sea Customs Act, that fact will prejudice his liability to be prosecuted and dealt with under the Imports and Exports (Control) Act, 1950, nor does it mean that if a person is prosecuted under the Sea Customs Act, he must at the same time prosecuted under the Imports and Exports (Control) Act, 1950. The tenor of section 5 of the latter Act is clearly to the contrary. It is open to the State not to prosecute an offender the said enactments. This is in line with the contained in section 26 of the General Clauses Act. It provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enact--ments but shall not be liable to be punished twice for the same --offence. The use of the words "shall be liable to be prosecution and punished under either or ran of those enactments" is very significant. It clearly means that if an act falls under the defini--tion of various offences tinder different enactments the offender may be prosecuted and punished for either or any of those offences. The only limitation is that he shall not be liable to be punished twice for the same offence. Therefore, if the State prosecuted the appellants; in case, only under the Sea Customs Act and did not prosecute them under the Imports and Exports (Control) Act, 1950, no illegality has been committed. And if that is so, the prosecution and conviction under Sea Customs Act has to be looked into with regard to the procedural or other provisions con--tained therein, unless some provision in any other statute has been made directly applicable to it which as already observed is not the case here.
10. The argument of the learned counsel with regard to the application of the Land Customs Act, 1924 for the purpose of the quantum of punishment, also appears to be misconceived for more than one reason.
Subsection (1) of section 9 of the Land Customs Act reads as follows :--- "The provisions of the Sea Customs Act, 1878, which are specified in the Schedule, together with all notification, orders, rules or forms issued, made or prescribed thereunder, shall, so far as they are applicable, apply for the purpose of the levy of duties of land customs and the trial of offences under this Act in like manner as they apply for the purpose of the levy of duties of customs on goods imported or exported by sea."
The words "and the trial of offences" were inserted by the Customs Acts (Amendment) Ordinance, 1963. It is to be noted that the prohibitions and restrictions on import and export, as contained in the Sea Customs Act not only apply to sea but also apply to land and this is clear from various provisions contained in the Sea Customs Act itself, some of them being sections 18 and 19 thereof.
But it appears that the Legislature, in its wisdom and may be in order to cover all possible situations, enacted the provisions as to the "trial of offences", by means of reference to Sea Customs Act, in the Land Customs Act. Contrary to the reality, it appears that it was assumed that the provisions of the Sea Customs Act as to prohibitions etc. Did not apply to goods imported or exported by land. The preamble of the Land Customs Act shows that this Act applied only to the import or export by land but the prohibitions contained in sections 18 and 19 of the Sea Customs Act, as provided in those sections, definitely applied to import and export through land or sea.
Therefore, an act which is an offence under the Sea Customs Act, and falls within the amendment mentioned above may also be an offence under the Land Customs-Act, and there may still be some offences which may not be covered by the Sea Customs Act and may be punished only under the Land Customs Act. With regard to the former category of the offences, section 26 of the General Clauses Act leaves it open to the State to prosecute an offender under either or any of the two statutes.
In any case, I do not agree with the learned counsel that the expression "and the trial of offences" does not include the quantum of punishment. In Basil Ranger Lawrence v. Emperor (AIR 1933 P C 218), it was held that the trial of an offence included the sentence also there-- fore, an alteration and recording of the sentence in absence of the accused was not legal. The word "trial" in section 9 has been used in a wide and general sense. Therefore, it cannot be held that the punishment provided in section 167 (8) of Sea Customs Act, which section is mentioned as one of the adopted provisions in the Schedule attached to the Land Customs Act has, by means of the amendment, reduced from imprisonment for six years/fine/whipping to the sentence of imprisonment of six months or fine not exceeding one thousand rupees or both, as provided in subsection.(3) of section 7 of the Land Customs Act, with regard to the offence defined in subsections (1) and (2) there--of. It was never the intention of the Legislature, otherwise i1 would have been expressed in clear words.
There is another aspect of the matter. If the contention of the learned counsel, that subsection (3) of section 7 only, is applic--able to the case of the appellants, is accepted, then there is no justification for not applying mutatis mutandi the provisions con--tained in-subsection (2) of section 7. That subsection provides that any Land Customs Officer can file a complaint before the Magistrate while, according to the learned counsel, the provisions with regard to complaint, which should have been applicable, were section 6 of the Imports and Exports (Control) Act, 195Q which prescribes the filing of a complaint by a Customs Collector. It was agreed by the learned counsel from both the sides, of course with reference to various notifications, that all police officers and ranger officers not below the ranks of a Head Constable or Hevaldar, respectively, are Land Customs Officers (within Tehsil Kasur District Lahore). In this case, admittedly, the complaint/ report under section 173, Cr. P, C. Was lodged by a Sub-Inspector of Police who is SHO of Police Station Ganda Singhwala falling within Tehsil Kasur. Therefore, the complaint was proper under section 7
(2) of the Land Customs Act. But the learned counsel would not accept this supposition because, according to him (but without any reason) the complaint should have been under section 6 of the Imports and Exports Control) Act, 1950. This aspect of the matter, it may be clarified, has been taken note of only to demonstrate the fallacy of the arguments raised by the learned counsel qua the application of the Land Customs Act and the Imports and Exports (Control) Act.
Lastly it is necessary to mention -that in the case of Noor Hussain before their Lordships of the Supreme Court, an argu--ment was raised on the basis of the provisions contained in section 7 of the Land Customs Act. Though it was in a different context i.e., the necessity of the complaint by a specified person, yet it cannot be said that on the same line the argument as to quantum of punishment raised by the learned counsel, in this case, could not be raised before their Lordships. It appears that either this argument was not raised before their Lordships, or it was not worth noticing because, as quoted above, their Lordships clearly observed that the offender having been charged with an convicted under the Sea Customs Act, the argument with regard to provisions contained in the Land Customs Act (section 7) was wholly irrelevant. Therefore, support can be gained, for the view that I take in respect of the effect of section 7 (3) and sec--tion 9 (1) of Land Customs Act, from the ratio decidendi of the case of Noor Hussain; decided by their Lordships of the Supreme Court.
In the light of the above discussion, I find no merit in the first two contentions raised by the learned counsel.
11. The third legal contention raised by the learned counsel is based on the provisions contained in section 193-B of the Sea Customs Act which reads as follows :- "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 any Magistrate of the first Class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person convicted of an offence mentioned in items 8 and 81 in the schedule to section 167."
The appellants have been tried by a Magistrate 1st Class who has been invested with powers under section 30, Cr. P. C. A Magistrate 1st class is empowered, under sections 30 and 3.4, Cr. P.C., to pass any sentence authorised by law, except a sentence of death or of transportation for a term exceeding seven years or imprison--ment for a term exceeding seven years. Section 29, Cr. P. C.
Provides that subject to the other provisions of the Code an offence under any other law shall be tried by a Court mentioned in that law. Section 187 of the Sea Customs Act provides that all offences under that Act, other than those cognizable under section 182 by the officers of the Customs, may b;, tried summarily by a Magistrate provided that the cases under sec--tion 167 items (8) and (81), so far as they concern special goods, shall be tried by a Court having powers not inferior to those of a Magistrate of the First Class. In view of the above provisions contained in the Sea Customs Act and the Criminal Procedure Code, it is admitted by the learned counsel that the trial by a Magistrate 1st Class would have been legal, if he would have passed a sentence of two years only, which is the maximum sentence a Magistrate 1st Class can pass under section 32, Cr.P.C. However, it is argued that in this case Magistrate of 1 has passed a sentence of six year's R.
L. Therefore, the trial well as the sentence is illegal. So far as the question of legality of the trial, in such circumstances, is concerned, the answer is con--tained in ruling of their Lordships of the Supreme Court in the case of Noor Hussain, wherein a similar argument was raised. At page 93 of the report, their Lordships observed as follows :-- "It will be observed from this that the quantum of the punishment does not by itself take away the power of taking cognizance of or trying a case, which could have been done under section 187 of the Sea Customs Act itself The limit on the powers of awarding punishment does not affect the com--petence of a Court-to try the case."
In that case, the trial, it appears, was held by a Magistrate not specially empowered under section 30, Cr. P. C. And the sentence awarded by him was two year's R. I. . Therefore, their Lordships further observed that that Magistrate was duly competent to try the case, but all that he could not do was to impose a sentence in excess of his powers. And because the sentence imposed was only two years' R. I. Which was within the powers of a Magistrate of the 1st Class under the Criminal Procedure Code, therefore, their Lordships did not specifically decide the question relating to the interpretation of section 193-B of Sea Customs Act, which related to the enhanced powers of a Magistrate Ist Class After a brief reference to this section, their Lordships held". In the present case, it is unnecessary to refer to this amendment, as the sentence imposed was within the ordinaryst powers of a Magistrate of the Ist Class" and, therefore, no illegality was committed in that case and the offence was petently taken cognizance of and tried. In spite of the observation herein immediately before quoted, it cannot be said that their Lordships were not of the view that if a Magistrate Ist Class is empowered under section 30, Cr. P. C., he could not be considered as a Magistrate special empowered by virtue of section 193-B of Sea Customs Act. This supposition is with respect pointed out, is based on another very clear observation by their Lordships on the same page of the report which is as follows :-- "The next contention advanced on behalf of the appellant is that on the date on which the Magistrate took cognizance of the case, namely, the 11th of November 1963, he could not have done so, as the offence under section 167 (8) of the Sea Customs Act was then punishable with a maximum of imprisonment not exceeding ten years. Such a punishment could only have been imposed by a Court of Session or a Magistrate empowered under section 30 of the Code of Criminal Procedure. A Magistrate of the 1st Class not empowered under section 30 had therefore, no power to impose this punishment or to try a case so punishable."
It is clear that their Lordships, when noting the contention in this behalf, were conscious of the fact that the maximum sentence for an offence under section 167 (8) of Sea Customs Act could be awarded only by a Court of Session or a Magistrate empowered under section 30, Cr. P. C.
It was explained on behalf of the appellants that the observ--ations quoted above do not represent the view taken by their Lordships of the Supreme Court but only are the reproduction contention raised before them. It is true that the portion titled by me is an observation in the context of the contention raised before them but the fact remains that the Magistrate who tried the case, which was before their Lordship, was not empowered under section 30, Cr. P, C. Had he been empowered, it appears from the effect of all the observations and Lordships, including point No. 2, on which lease was that they meant that he, would then have been deemed to be the same Magistrate as mentioned in section 193-B.
In any event, if their lordships have not specifically decided this question, I am still of the view that mentioned in section 193-B as "any Magistrate of the Ist Class specially empowered by the Provincial Government in this behalf ", is not a different Magistrate than one whom the Provincial Government may, notwithstanding anything contained in section 29, Cr. P. C. Invest with power to try, as a Magistrate, all offence not punishablewith death, under section 30, Cr. P. C., and who thus specially empowered under section, 30 may pass any sentence authorised by law excepting a sentence of death or of transportation for a term exceeding seven years or imprisonment for a term exceeding seven years" as provided by section 34, Cr. P. C. The specific reference to section 29, Cr. P. C. Which relates to offences under other laws, in section 30, Cr. P. C. Is very significant.
Section 29 itself makes a special provision but subject to the other provisions the Code. Some such other provisions are evidently contained in sections 30 and 34, Cr. P. C. Thus there is a saving and interlocked provisions for the application of these two sections, notwithstanding the fact that offences under other laws may be tried by any Court mentioned in those laws. In other words, it can be safely said that if a Court which can try an offence undera special law is that of-Magistrate 1st Class, that Magistrate if empowered under section 30, Cr. P.-C. Would be able to impose a sentence as provided in section 34, Cr. P. C. The learned counsel argued that this would have been so if a special provision, in that behalf, would not have been enacted in section 193-B of Sea Customs Act. His precise argument is that even a section 30 Magistrate is to be, separately and twice over empowered by the Provincial Government under section 193-B, so that he may award the maximum punishment under section 167 items (8) and (81). In this context he interpreted the expression "in this behalf used in section" 193-B to mean "in relation to offences mentioned in that section". He also argued that if a section 30 Magistrate could award such punishment, there was no need of enacting section 193-B, Sea Customs Act.
The answer to the last leg of the argument above mentioned is contained in the various provisions of Sea Customs Act relating to the jurisdiction of the Magistrates to try offences thereunder.The provisions relevant for the present discussion has already been mentioned and that is section 187 which provides for the trial of certain offences under section 167 items (8) and (81) by a Magistrate 1st Class. The Legislature, while enacting section 193-B,had sections 29 and 32, Cr. P. C. In view, the combined effect of which, when read with section 187 of Sea Customs Act, would be that a Magistrate 1st Class would not be able to pass sentence of more than two year's R. I. Together with this the provisions contained in sections 1 (2), and 5, Cr. P. C. Can also be considered with advantage. They read as follows :- "1. (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
5. (1) All; offences, under the Pakistan Penal Code shall be investigated;, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All of offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
The combined effect of the last mentioned provisions is that the ` Criminal Procedure Code shall not affect the special jurisdic--tion, conferred by, and powers or forms of procedure in, other laws and that the offences under other laws shall be investigated, inquired into, tried and otherwise dealt with under the Criminal Procedure Code, except for the special provisions made in this behalf in the special laws. If the expressions "subject to the other provisions of this Code" contain in section 29 and "notwithstand--ing anything contained in section 29" used in section 30, Cr. P. C. Are not taken note of, then the effect of section 187 of Sea Customs Act read with sections 1(2), 5(2) and 32, Cr. P. C. Would be that a Magistrate of 1st Class would not be able to award a punishment of more than two year's R. I. Therefore, to my mind, the enactment of section 193-B is the reiteration of the saving provisions contained in sections 29 and 30, Cr. P. C. It obviously meant that if a Magistrate is invested with the enhanced powers by the Provincial Government as provided in section 30 read with section 34, Cr. P. C. He would be able to award the maximum sentence provided in section 167 items (8) and (81) of Sea Customs Act.
The argument of the learned counsel that the expressions "in this behalf" is referable only to the latter part of the section i.e. "offence mentioned in items 8 and 81 in the schedule to sec--tion 167" is without any foundation. The language as used and the placing the expression in the whole of the section does not support the view expressed by the learned counsel. This expression immediate precedes the words "may pass a sentence of imprison--ment for a term exceeding two years and of fine exceeding one thousand rupees". In my view, the expression "in this behalf" has been used in section 193-B in the sense of "in this matter or in respect of". Such a use of this expression is permissible in English language. Shorter Oxford Dictionary can be quoted in support of this view, wherein "in this or in that behalf" have been mentioned as equal to "in respect of this or that" and "in this or that matter or aspect". Looked at the expression from this angle, the meanings to be attached to it, when used in section 193-B, become very clear, i.e., the special power should be in respect of, in the matter of, the heavier sentence. The stress is on the sentence. To borrow the expression from Oxford Dictionary, it would mean nothing else than "this aspect of the matter". The specific aspect of the matter, relating to the trial of offences under section 167 items (8) and (81), in section 193-B, is that of the enhanced powers of a Magistrate to pass a sentence of more than two years. In some dictionaries, the expression "in this or in that behalf" also means "in regard to or in reference to" which meaning also conforms to the interpretation I have put on this expression as used in section 193-B. Therefore, in my view, when the Provincial Government has specially empowered a Magistrate under section 30 read with section 34, Cr. P. C. To pass a sentence of imprisonment for a term exceeding two years and a fine exceed--ing one thousand rupees (these are the limits of the powers of a Magistrate 1st Class under section 32, Cr. P. C.), he is the Magistrate meant by section 193-B when it enacts that "an Magistrate of the 1st Class specially empowered by the Provincial Government in this behalf may pass a sentence" exceeding the very limits. The learned counsel did at one stage, also rely on the expression "notwithstanding anything contained in the Code of Criminal Procedure" contained in section 193-B to avoid the reference to sections 29, 30 and 34, Cr. P. C. This is not what is meant by that expression. As indicated above, this expression was used in the light of the provisions contained in searc--h,sections 1 (2), 5 (2) and 32,-Cr. P. C.
Read with section 187 Sea Customs Act, and if I may say so, particularly section 32, Cr.P.C. Because it limits the powers of a Magistrate 1st Class with regard to the sentence that he can pass. I have already explained the reason for enacting 193-B in the Sea Customs Act. Keeping that in view, the use of the "notwithstanding" clause in section 193-B gets explained. In the light of the above discussion, I am of the view that Ch. Nazir Ahmad, Magistrate Ist Class, with enhanced powers under section 30 read with section 34, Cr. P. C. Could validly pass the sentence of five year's R. I.
Under section 167 (8) of Sea Customs Act and could also pass the sentence of one year's R. I. Under section 9 of the Opium Act, on Barkat Ali and Umar Din appellants which he ordered to run consecutively.
12. The learned counsel urged for the reduction of sentence and particularly relied on the following circumstances :---
(l) that the appellants were only carriers and that the real culprits are the big smugglers utilising the service of such like carriers.
(2) that the commodity which was being smuggled being cinnamon could not be said to have been produced in or around village Bhikiwind. It was an imported item and must have gone from the hands of big businessm en of the bordering towns, for example Lahore. And if the big smuggler are not being punished, the sentence is too heavy for their agents.
I have given my anxious thought to the question of sentence, particularly that passed on Barkat Ali and Umar Din which under the two offences is to run consecutively. After carefully reading the material on the record, I have come to the conclusion that there is absolutely no evidence on the file to show that the appellants are only the carriers. According to the statements of some of the appellants and those of the D. Ws., the appellants belong to a particular faction in village Bhikiwind and this faction is an antagon1st of another faction of Dari smuggler. It does not appear from the sum total effect produced by the whole evidence that the appellants in any way, belong to the labourer class and that they were carrying the load only, for the sake of wages. On the contrary the impression gained is that they are themselves the smugglers. So far as the Sikh appellants are concerned, one fact is clear that they having entered Pakistan territory, were taking away the goods intended to be smuggled from Pakistan. If they had no interest of their own in the smuggled goods, they could have stayed beyond the Pakistan borders and the goods having been transported up to the border they could have then carried, the same beyond it. The fact that they together with the Muslim appellants carried the goods from or near about village Bhiki-wind, which falls fir Pakistan, were going towards the Indian border shows that they also are not simple, labourers or the carrier of goods. In any case, none of the appellants has, in hi, statement, even indirectly mentioned that he was acting only as a labourer and that he has been involved in the case without any direct fault with regard to smuggling. Therefore, there is no force in the contention of the learned counsel that the appellants are only carriers.
Similarly, there is no evidence on the file to show that there were any smugglers or big businessm en on the back of the appellants and that they were operating this smuggling of good.
No such question was put to the police officer who deposed as to the secret information received by him; nor there is anything in the statements of the appellants or the statements of the D. Ws.
Though the possibility cannot be excluded that the cinnamon may have gone from one of the big towns in Pakistan, yet that fact does not show that the commodity was not being handled by the appellants as their own property and that the gain and advantage or, for that matter, the liability, in respect of the smuggling of that commodity was to be shared by anybody else other than the appellants themselves. Thus there is no force in this contention of the learned counsel either.
The weight of goods recovered from the appellants is, in the context of the commodity being smuggled, enormous. Pakistan is a young state, at least, in economic terms. Smuggling is a scourage so far as the economy of our country is concerned. There--fore, the offence needs deterrent punishment. The mximum sentence under section 167 (8) of Sea Customs Act being six years, the sentence of five year's R. I. In the circumstances, does not appear, to me, to be in any way on the harsh side. The learned Magistrate was fully justified in imposing this sentence. In the light of what I have said above. I am of the view that no extenu--ating circumstance has been proved so as to reduce the sentence lawfully passed on the appellants.
13. Finding no merit in these appeals, I, therefore, dismiss them. Umar Din appellant is on bail. He should be re-arrested to undergo the unexpired period of his sentence.