JUDGMENT M. S. H. Quraishi, J. 1.-Appellant Abdul Salam has appealed from the judgment dated 11- 3-1981 of the Special Judge, Customs, Lahore, whereby he was convicted of an offence under clause (8) of Section 156 (1) of the Customs Act and sentenced to suffer rigorous imprisonment for 5 years and two lashes.
2. The case against the appellant arose from recovery of 5 kilograms of silver from his attache case at the time of custom examination at the Lahore Airport where he had gone to board a plane for Dubai. The prosecution case brought out by Muhammad Amin D. S., Customs P. W. 1 and Bashir Anjum, Inspector, Customs P. W. 3 is that the silver had been recovered in 5 bars from his luggage which had been examined by them when he had appeared at the customs counter after he had checked in at the P. I. A. Counter and obtained a boarding card. There is no evidence that the appellant had been asked by the Customs officers to make a declaration or that he had made any false written or verbal declaration or had evaded to make a declaration. There is also no evidence that the silver bars had been concealed in a manner so as to avoid detection in the course of the ordinary inspection of the luggage. The case of the appellant who had denied the charge was that he had declared about the presence of the silver in his luggage to the Customs authorities and had sought their advice as to whether he could take it to Dubai. He had further stated that in case the Customs authorities would disallow the taking of the silver to Dubai, he would return it to his relatives. However, such suggestion when put to the prosecution witnesses, had been denied by them. The learned trial Judge did not believe that the appellant had sought the advice of the Customs officers and held that he had in fact attempted to smuggle the silver out of Pakistan within the meaning of Section 2 (s) of the Customs Act.
3. Learned counsel for the appellant submitted that the mere recovery of the silver would not amount to smuggling or attempt to smuggle within the meaning of Section 2 (s), that irrespective of the fact brought out in the evidence, the decision in the case would hinge upon a proper interpretation of the term ' attempt" and that in the light of the provision of sections 139 and 142 of the Customs Act, no attempt to smuggle nor any other offence under the Customs Act can be said to have been committed. He added that when the appellant had not been asked to submit any written or verbal declaration and he had submitted his goods for examination, then the mere recovery would not incriminate him.
4. Under Section 139 of the Customs Act, the owner of a baggage is required to make a verbal or written declaration of its contents in such manner as may be prescribed by the rules to the appropriate officer and to answer such questions as the said officer may put to him with respect to his baggage. Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited or restricted and in respect of which a true declaration has been made under Section 139, the appropriate officer, as provided in Section 142, may at the request of the passenger, detain such article for the purpose of being returned to him on his leaving Pakistan.
These provisions show that the mere presence of an article, which is dutiable, or the import or export of which is prohibited or A, restricted, is not an offence as long as a true declaration has been made under Section 139. It is also not in dispute that Form F. M. Which had been prescribed for such declaration in respect of passengers leaving Pakistan, was discontinued by Notification No. C.
No- 1/2/-SS(CV)/73 dated 20-1-1973. The Notification does say that a declaration will not be obtained on F. M. Form only as regards currency which forms Item 'A' of the Form and does not speak of the other items. It is to be noted that silver bullion forms part of Item 'C' of this Form. This would mean that the outgoing passengers would make a declaration in respect of items other than 'A' in the Form F. M. But the Customs officials conceded that the use of the Form F. M. Was discontinued altogether and no written declaration was ordinarily obtained from any passenger.
5. The question that arises, therefore, is whether in the absence of any declaration, written or oral having been obtained, the recovery of silver from the baggage of a passenger at the time of search constituted an offence under Section 2 (s) of the Customs Act. Since the article had not yet left the country, the offence of smuggling had not matured. But since an attempt to smuggle also amounts to smuggling, it is to be seen whether the occurrence constituted an attempt. "Attempt" has been defined in Halsbury's Laws of England, Third Edition, Volume 10, pages 307-308, to mean :- "Any overt act immediately connected with the commission of an offence, and forming part of a series of acts which, if not interrupted or frustrated, would end in the commission of the actual offence, is, if done with a guilty intent, an attempt to commit the offence. A person may be guilty of an attempt to commit an offence though that offence could not, in the circumstances, have been committed ; but steps on the way to doing something which is in fact done, and which when done does not amount to a criminal offence, cannot be regarded as an attempt.
An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence. Merely to make preparations for the commission of an offence is distinct from an attempt to commit the offence" (Underlining is mine: here in Italic words).
In order to constitute an attempt, there has, therefore, to be some overt act on the part of the offender which if not frustrated, would lead to the commission of the offence.
This is also supported by the two illustrations appended to Section 511 P.P.C. In Crown vs. Muhammad Rafique Safdar (P.L.D. 1952 Sind 28), where the accused acting in concert, intended to cross the border with prohibited goods and declared that intention when stopped ; had bought the goods and procured the lorry in Karachi in order to carry this intention,, and were the owners of the goods, the owners of lorry, and their spokesman : had provided themselves with a permit for export by rail of certain medical stores, and tried with this permit to bluff the Deputy Collector into- believing that the goods and their export by lorry were covered by the permit ; had travelled 360 miles, leaving only 35 miles to go, and there was. No evidence that there was at the border any barrier or custom house, it was held that upto the stage they had gone, the accused were not punishable under the law because they had not done any criminal act. Reliance had been placed from Salmond on Jurisprudence at page 528, which said :- "An act, which is in itself and on the face of it innocent, is not a criminal attempt and cannot be made punishable by evidence aliunde as to the purpose with which it is done."
6. We may now examine if the appellant before me had done an overt act which may constitute an attempt. He had asserted in his statement under Section 342 Cr. P.C.,- "I had told Mr. Afzal within the hearing of Bashir Anjum who was at a short distance whether I could take silver to Dubai with me or not. There was a great rush and Afzal passed on my attache-case to Bashir Anjum. On account of rush my request was not heard by anyone and I was arrested." The assertion is not supported by any credible evidence and the relevant suggestion put to the two witnesses had been expressly denied. However, there is no evidence also produced by the prosecution to show that the appellant had been asked to make any declaration or that he had otherwise himself made any false declaration or bad avoided to answer any question or tried to put off the Customs officers. The evidence only shows that the appellant on reaching the customs counter had presented his baggage which was routinely searched and the silver was recovered.
There is also no evidence that the silver had been kept in a manner as to avoid detection in the ordinary course of search.
7. Mr. S.M. Arif, Assistant Collector, Customs who appeared to assist this Court during the hearing, conceded that in case an outgoing passenger makes a true declaration as to the contents of his baggage, he is not liable even if his baggage contains some article which is dutiable or the export of which is prohibited or restricted. On the principle of Section 142 read with Section 139, the mere fact of his baggage containing such article is not punishable as long as a true declaration has been made. In Writ Petition No. 10296 of 1980, where the Customs authorities had confiscated certain articles of gold of a passenger in spite of a true declaration, a learned Judge of this Court had held the confiscation to be without lawful authority and of no legal effect and had directed the restoration of the articles to the passenger.
8. It must, therefore, follow that the fact that a passenger has brought some banned item in his baggage upto the customs point, will not constitute the offence of attempt to smuggle in the absence of evidence that he had given a false declaration or refused to make a declaration or had secreted the goods in a manner as to avoid detection. As already pointed out, there is no such evidence.
9. For these reasons, I am unable to sustain the judgment passed by the trial Court. I accordingly set aside the appellant's conviction and sentence. He shall be set at his liberty forthwith if not wanted in any other case. The silver recovered shall be returned to him.