1. S. A. NUSRAT, J.-This judgment will dispose of three Criminal Appeals Nos. 158, 159 and 160 of 1979 which arise out of a common judgment of the Lahore High Court, dated 24-7-1979, involving common questions of fact and law, by which three criminal miscellaneous applications filed by the respondents under section 561-A read with section 439 of Code of Criminal Procedure were accepted and the proceedings pending against them in the Court of Special Judge, Custom, Lahore were held to be unwarranted by law and accordingly quashed.
2. The brief facts of the case are that the respondents imported 7mm cartridges against the licences issued to them in this behalf under the Import Policy Order, 1974 and the relative consignments thereof were cleared in 1975 by the Custom Authorities, Karachi after having been found that the imported ammunition was in accord with the description of Invoices, Bills of Lading, Import trade classification, Import licences and other relevant documents. The goods were released on payment of requisite Custom duty any sales tax. After the release of the goods, however, the F. I. A.
3. Entered upon the investigation of the said import and in the result concluded that the ammunition imported by the respon--dents was in contravention of the Import Policy Order, 1974 published vide Gazette Notification No. S. R. O. 945(1)/74, dated 8th July, 1974 as it was of "joblot and stocklot" quality which could not be imported. Accordingly the Deputy Director, F.I. A. Filed complaints against the res--pondents before the Special Judge, Customs Lahore, under section 156(1)8/9, Customs Act, 1969 read with section 420, P. P. C. However, the res--pondents were ultimately charged by the learned Judge by his order, dated 18-6-1978 only for the offence falling under section 156(1)/8 of the Custom Act, 1969. The respondents moved an application on 18-7-1978 before the learned Special Judge stating that upon the alleged facts of the case the charge framed against them could not be sustained and consequently he had no jurisdiction in the matter. The learned Judge however by his order, dated 30-7-1978 filed the application observing that let the case proceed but the respondents would be at liberty to raise the said objection at subsequent stage of the proceedings as the point involved was one of law. In view of such order passed by him the learned Special Judge proceeded to record the evidence and when the entire evidence was finally recorded by him and the case was closed by the prosecution, the respondents filed another application before him reiterating therein their previous objection to the effect that he had no jurisdiction in the matter. By his order, dated 19-7-1979, the learned Special Judge rejected the said application holding that since all the evidence had been brought on the record he would rather proceed to decide the case on merit and also decide the question of his jurisdiction in the judgment. The respondents thereupon filed three criminal miscellaneous applications under section 561-A read with sec--petition 439, Code of Criminal Procedure which were accepted as per impugned judgment and in the result the proceedings against them pending in the Court of Special Judge, Lahore, were quashed.
4. The allegation that the ammunition imported by the respondents was of "joblot and stocklot" quality was denied by the respondents and it was contended by their learned counsel before the High Court that even if the goods imported by them were of the alleged quality, their case would fall under item 9 of section 156 of the Customs Act, respecting which the Customs Authorities alone would be competent to adjudicate into the matter, and not under item 8 of the said section so as to empower the Special Judge Customs to try them for an offence of smuggling as defined in section 2 (s) of the Customs Act. After examining the relevant provi--sions of the Customs Act, the reproduction of which is not necessary, the learned Judge felt impressed by the contention urged before him by the learned counsel for the respondents and consequently quashed the pro-- ceedings against them pending in the Court of the Special Judge Customs, Lahore. In support of his findings, the learned Judge relied on Muhammad Bashir v. The State and others (1978 P Cr. L J 837), S. Ch. Niaz Ahmed and others v. The State (PLD 1978 Kar. 774) and Syed Shabir Ahmad Shah v. Pakistan through Secretary to the Government of Pakistan, Ministry of Interior Defence, Islamabad and others (PLD 1979 Kar, 68).
5. Leave to appeal from the above judgment and order of the Lahore High Court was granted on 10th October, 1979 relying upon an earlier leave granting order of this Court, dated 12-10-1978 passed in Civil Petitions for Special Leave to Appeals Nos. K-159 to 161 of 1978, which now stand converted to Civil Appeals Nos. K-100, K-101 and K-102 of 1978. The said appeals arise out of a common judgment of the learned High Court of Sind reported as Syed Shabbir Ahmed Shah and others v. Pakistan (PLD 1979 Kar, 68). Although it was directed in the leave granting order that these appeals will be heard alongwith the above appeals, which involve similar questions of law, but after hearing the learned counsel for the parties we have chosen to dispose of the appeals independently on merit without going into the legal questions.
6. Mr. Munir A. Shaikh, learned Deputy Attorney-General, appearing on behalf of the Appellants, referred to the definition of word "smuggle" as given in clause (s) of section 2 of the Customs Act, 1969 which reads as follows
(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 ;
(a) gold bullion, silver bullion, precious stones, currency, manufactures of gold or silver or precious stones or any other goods notified by the Federal Government in the official Gazette, in each case exceeding one thousand rupees in value ; or
(b) 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 expression shall be construed accordingly."
7. According to the learned counsel in addition to the items mentioned in clause (a) above any other goods notified by the Federal Government in the official Gazette also qualified to be treated as smuggled and such notification need not be necessarily one issued under the above section alone but would also include any notification issued under any other law as well.
8. On these premises it was contended that the ammunition imported by the respondents was of stocklot quality, the import of which was prohibited vide Notification No. S. R. O. 945(1)/74, dated 8- 7-1974 (Import Policy Order, 1974) issued by the Ministry of Commerce in exercise of the powers conferred by subsection (i) of section 3 of the Imports and Exports (Control) Act, 1950 and as such the said goods fall within the definition of the word "smuggle" as defined in clause (s) of section 2 of the Customs Act, 1969. The relevant clause 2(1) of paragraph 5 of the said Notification Import Policy Order is as follows
(2) Second-hand Commodities and Containers.-Unless otherwise autho--rised, import of the following shall not be permissible :-
(i) Second-hand (except second-hand clothing), reconditioned goods or factory rejects and goods of joblot/stocklot quality.
9. It was however admitted by the learned Deputy Attorney-General that no Notification prohibiting import of any goods of joblot or stocklot quality had been issued under clause (s) of section 2 of the Customs Act, 1969. On the basis of the admitted position on the record it was admitted by the learned Deputy Attorney-General at the leave granting stage that the respondents had imported the ammunition in question against valid licences issued to them in the year 1971 but the only objection raised was that as a result of the investigation conduct-d into the matter by the F. I. A.
10. The same was found to be of joblot and stocklot quality and could not be imported as it was a banned item under the Import Policy Order, 1974.
11. Now without going into the legal question raised by the learned Deputy Attorney-General regarding the interpretation of clause (s) of section 2 of the Customs Act, 1969, reproduced hereinabove, the prosecution could succeed only if it was established that the ammunition imported by the respondents was in fact of joblot and stocklot quality as alleged in the complaint.
12. Mr. Shaikh Shaukat A.I, learned counsel for one of the respondents, apart from reiterating the arguments which were raised on behalf of the respondents and accepted by the learned High Court, referred to the evidence brought on the record and contended that even on merit no case was made out against the respondents not only of the charge of smuggling but also for any adjudication under item 9 of section 156(1) of the Customs Act. It was pointed out by the learned counsel that the terms joblot stocklot quality were not defined in the Customs Act or the Import Policy Order, 1974 or any other allied Laws. It was only after the enquiry made by the F. I. A. That Chief Controller of Import and Export Islamabad had defined the said terms vide Circular No. 1(6)
13. 75-Py, dated 8-3-1976 which is reproduced hereunder :- Classifications of the definitions of Joblot/Stocklot.-According to paragraph 5(2) (i) of the Import Policy Order, 1975, import of 'Joblot/Stocklot' quality of goods is not permissible. A number of references have been received asking for the definition of "Joblot/Stocklot". These terms as they are understood in common parlance in Trade and Commerce are defined as follows
(1) Joblot.-"Joblot" is a collection of goods and ends total sale as one lot. Normally these are goods of inferior quality. To cater to the needs different customer's supplies varies specifica--tions, colour-schemes, etc. It is a normal practice to produce alight wore than the order placed as that after rejection, damage etc. There is still enough quantity left to meet the demand of the customer.
14. After selling the goods to buyers, the supplier has an assortment of goods, of inferior quality with slight modification or differences. These when put into a lot are called "joblot" and are generally sold at low prices.
(2) Stocklot.-The goods of this description are different from goods of "joblot" in the sense that these are not-different in sizes, specifica--tions or colours, etc. There are the goods which are kept in stock unsold because of change in tastes, market conditions or slight depreciation in quality because of age etc."
15. The learned counsel then referred to the statement of Tariq Bukhari, Section Officer, Ministry of Commerce, Islamabad who was examined in all the three cases against the respondents. The said witness had stated in his cross-examination in the case of respondent Salim A.I as follows "I have brought the relevant file from the Ministry of Commerce containing a letter regarding the definition of words `stocklot' and 'joblot'. Its photostat copy is Exh. P. U. (admissibility of this document is objected to by the. Defence counsel. It will be decided at the time of argument). The original letter of Exh. P. U. Was written by me in reply to the query of the F. I. A. Made in their letter dated 26-9-1975, I had written this letter under the orders of the Joint Secretary, Ministry of Commerce. XXXN by the counsel. Before giving the definition of word `stocklot' we had consulted law books, notifications, dictionery and other relevant books and literature but could not find the definition of `stocklot'. We therefore, consulted on telephone the iron and Steel merchants of Rawalpindi who told us that `stocklot' meant 'dharmal'. It was on the basis of this information that we formulated the definition of the words --stocklot'. It is correct that before consulting these merchants I did not know the definition of `stocklot'. The Director F. I. A. Had written in his letter that he needed a comprehensive definition of the terms 'joblot' and `stocklot'. -It is also obvious from the letter of the F. I. A. That the Controller of the Import and Export, and Collector of Customs, Lahore were also asked about the said definition but they were not able to give it. No Notification regarding the definition of these terms `joblot' and 'stocklot' has so far been issued by the Government of Pakistan or any Department."
16. He further referred to the statement of Muhammad Idrees in the same case who had signed the recovery memos. It was categorically stated by this witness that the ammunition at the time of recovery was found to be in original packing and each packet contained printed matter to the effect "production 1973". He also admitted that some of the packets were opened and the bullets were found to be new. Reliance was also placed on the statement of Muhammad Boota (P. W. 9) inspector F. I. A. Who had investigated the case, This witness in his cross-examination admitted that on the packets of ammunition it was printed that the ammunition was of 1973 and there appeared no sign to show that the same was old. Another prosecution witness Abid Hussain, Appraiser Custom House, had stated that the goods were released by the Shed Staff after physical verification with reference to the relevant documents attached to the bill of entry. According to him the ammunition found to be in accordance with the relevant documents and as no discrepancy was found the goods were released without any further action. The statement of P. W. Tariq Bukhari in the other two cases was identical to what he had stated in the case of respondent Salim A.I.
17. Likewise in the other two cases P. Ws. Shaukat A.I and Muhammad Idrees were examined as recovery witnesses and their - statements were similar to the statement of Muhammad Idrees and both the witnesses had categorically stated that the ammunition secured was brand new. In view of the above evidence we asked the learned Deputy Attorney-General to refer to any evidence on the record to show that the prosecution had succeeded in proving the allegation that the imported ammunition was of joblot and stocklot quality to which he frankly admitted that there was none.
18. Thus from the evidence on record it is clear that B the prosecution had failed to establish the allegation against the respondent that the ammunition imported by them was of joblot and stocklot quality and as such the question of the goods having been imported in contravention of paragraph 5(2) of the Import Policy Order, 1974 did no arise.
19. For the reasons mentioned above no interference is called for as the appeals must otherwise fail on merit. The same are dismissed according with the observation that as a result of the above finding there is no ca left for adjudication in the matter under item 9 of section 156(1) of the Customs Act, 1969 and it would not be therefore, in the interest of justice to prolong the agony of the respondents who will be at liberty to apply to the Customs Authorities for the -release of the goods.
20. M. Z. M.