1. ASLAM RIAZ HUSSAIN, J.-This petition is directed against the judgment of a learned Single Judge of the Lahore High Court, dated 23-5-1979 whereby the petitioner's application for quashment of criminal proceedings under section 156(1), clauses 77, 89, 90 of the Customs Act, 1969, pending against him in the Court of the Special Judge (Customs), Lahore, were sought to be quashed.
2. The case relates to the smuggling of Mercedes Benz Model 1972 car into Pakistan. According to the prosecution it was first got registered by Sajjad Hussain, co-accused, under the fictitious name of Salim Khan. Alongwith the application for registration, a forged `No Objection Certificate was also filed by the said accused. This car was then mortgaged by the afore-mentioned Sajjad Hussain (under the fictitious name of Salim Khan) to one Muhammad Javed, a dealer in second hand cars, at Lahore. The allegation against the present petitioner Zulfiqar is that he signed the mortgage deed as a witness. The car then changed many hands and was ultimately recovered from the house ofKhalid Munir co-accused on 30-10-1977. All of them including Zulfiqar the present petitioner are being prosecuted in that connection, for the offence under the above provisions of the Customs Act, 1969.
3. The learned counsel for the petitioner contended inter alia that the ca in question cannot be said to have been "smuggled" within the. Definition of section 2(s) of the Customs Act and as such be cannot be prosecuted for smuggling, although the car might be liable to confiscation. He argued that under section 16 of the Customs Act, Federal Government is authorised to issue Notifications to prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description.
4. This section is reproduced below for facility of reference :- "S. 16-The Federal Government may, from time to time, by Notifica--petition in the official Gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land."
5. The Federal Government is also authorised to issue similar Notifica--tions under section 3(1) of the Imports and Exports (Control) Act, 1950.
6. By virtue of subsection (3) of section 3 of the Imports and Exports (Control) Act, 1950, all Notifications issued under subsection (1) of section 3 of the said Act are deemed to be Notifications issued under section 16 of the Customs Act. Violations of the Notifications issued under section 16 of the Customs Act, or under section 3(1) of the Imports and Exports (Control) Act 1950, are punishable under section 156(1) (9) of the Customs Act by confiscation of the goods in question and imposition of pecuniary penalty on the importer/exporter. These violations, however, would not constitute "smuggling."
7. A Notification (No. S. R. O. 1426(1)/73, dated 5-10-1973) has been issued under section 2(s) of the Customs Act but a `motor car' is not mentioned as one of the prohibited items therein, and as such, the import of a motor car into Pakistan would not constitute smuggling within the meaning of the definition of that word under section 2(s).
8. The learned counsel argued further that the violation of a Notification issued under section 2(s) is punishable by imprisonment by the Court of Special Judge (Customs). But since cars are not mentioned in the afore--mentioned Notification issued under section 2(s) of the Customs Act, the legal position would be that while a car imported in violation of the restriction imposed by Notification under section 16 of the Customs Act and section 3 (1) of the Imports and Exports (Control) Act, 1950, can be confiscated by the Customs the importer cannot be prosecuted in the Court of Special Judge (Customs).
9. He pointed out further that the prosecution under section 156(1).(77) of the Customs Act is also not competent, because the allegations would constitute an offence under section 156(1) (14) as the latter is the specific provision which will exclude the general provision contained in sec--petition 156(1) (77). Under section 156(1) (14) only car can be confiscated and pecuniary penalty imposed but there is no provision for prosecution under this clause. He contended further that prosecution under section 156(1) (90) of the Customs Act will also not be competent, because the clause too provides only for confiscation of the goods and personal penalty but not for prosecution. The petitioner does not challenge proceedings before the Customs officers, which are continuing but he challenged the prosecution before the Special Judge (Customs) as without jurisdiction, on the grounds mentioned above.
10. The aforementioned legal contentions need consideration. Leave is, therefore, granted in this case.
11. Security for costs Rs. 1,000 (rupees one thousand). The appeal arising out of this petition may be heard along--with other appeals in which similar points are involved i.e. Appeals arising out of C. P.
12. Nos. 28-32 and 44 of 1975 and 412 to 414 of 1979.
13. S, Q.