M.S.H. Qureshi J. 1-This order will dispose of three petitions, namely, Cr Misc. Nos. 530-Q/79, 531- Q/79 and 532-Q/79, all filed under section 561-A, Cr. P.C. And seeking quashment of the case against the respective petitioners under the Customs Act now pending before the Special Judge, Customs, Lahore.
2. The petitioners had, against import licences issued in 1974, imported 7 mm. Ammunition which is said to have been duly cleared in 1975 by the Customs at Karachi on payment of the duty and the sales tax. After the release of the goods, the F.I.A, however, investigated the matter, in the result of which it found that the ammunition was of job-lot and stock-lot quality and accordingly the Deputy Director, F.I.A., filed a complaint in 1978 before the Special Judge, Customs, Lahore, for prosecuting the petitioners under section 156(1), (8), (9) Customs Act, 1969, read with section 420 P.P.C. The petitioners were charged on 18th June, 1978 only for the offence of smuggling falling under section 156(1)8 of the Customs Act. The petitioners, however, sought dismissal of the complaint on the ground that the violation, if any, was of paragraph 5 of the Import Policy Order, 1974, which violation did not amount to "smuggling" within the meaning of section 156(1) (8), and as defined under section 2(s) of the Customs Act. Thereafter, they moved another application and although arguments were heard on the point, the learned Special Judge deferred the decision on the point and finally, on 10th July, 1979, ordered that the petitioners' application be filed with the direction that they may raise objection regarding the jurisdiction at the time of final arguments.
Hence these petitions.
3. I have already mentioned that the petitioners were charged under item (8) of section 156(1) of the Customs Act. This item relates to the offence of smuggling goods into or out of Pakistan, which offence, besides inviting other actions, is also triable by a Special Judge. Smuggling is defined in clause (s) of section 2 of the Act, and means:- "to bring into or take oat 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 other 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 expressions shall be construed accordingly. "
4. Admittedly, only clause (a) is relevant and not (b). For the purposes of clause (a), the Federal Government issued Notification No.S.R.O. 1426(I)/73, dated 5th October, 1973, specifying 29 items of goods which included "Arms and ammunation" at item No. 26. Arms and ammunition, therefore, could not be imported above the specified value except against an import licence. Such a licence had issued in favour of the petitioners. The ammunition, however, imported by the petitioners was allegedly of job-lot and stock-lot quality, the import of which was prohibited by paragraph 5 (2) (i) of Notification No. S.R.O. 945(I)/74, dated 8th July, 1974, issued by the Ministry of Commerce in exercise of the powers under section 3(1) of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950). Clause (2) (i) of paragraph 5 of this Notification reads : "(2) Second-hand Commodities and Containers.-Unless otherwise authorised, import of the following shall not be permissible
(i) Second-hand (except second-hand clothing), reconditioned goods or factory rejects and goods of job-lot/stock-lot quality."
5. The contention advanced by Mr. Bashir Zafar, learned counsel for the petitioners, therefore, was that the goods actually imported being undeniably ammunition, the petitioners could not be charged with smuggling, but, if at all, they could be held liable for a violation of the aforesaid S.R.O.
No. 945(I)/74, dated 8th July, 1974 though it was not conceded that the goods was of job-lot or stock-lot quality. It was, therefore, urged that the case, at worst, could come under item No. (9) of section 156(1), which was a matter for adjudication by the Customs authorities and not triable by the Special Judge.
6. Sh. Maqbul Ahmad-II, learned counsel appearing for the State, urged that the question whether the matter was triable by the Special Judge or would fall for adjudication by the Customs authorities, was already before the Special Judge and should be left for his decision. He pointed out that arguments on the controversy had already been addressed there and as.
Such it would be proper that the petitioners should await the decision of the Special Judge before invoking the inherent power of this Court to intervene.
7. Normally, I would have hesitated to entertain the petitions as the matter was already before the trial Court. I am also aware that the trial Court is possessed of power under section 265-K, Cr.P.C, for acquitting the accused "at any stage of the case if it considers that there is no probability of the accused being convicted of any offence''. I have also in mind the observation of the Supreme Court in Khushi Muhammad and 4 others vs. The State (1979 SCMR 94) to the effect that an alternative remedy being available to the accused, namely, the provision of section 249-A, Cr.P.C, (provision available to a Magistrate similar in terms to section 265-K Cr.P.C, available to the Court of Session or the Special Judge here), resort to the provision of section 561-A, Cr.P.C, should not be made.
Unfortunately, however, in the matter in hand, the petitioners' repeated plea of lack of jurisdiction has eluded a decision and has now, been deferred to the final stage of the trial. The petitioners' assertion that even if the goods were assumed to be of job-lot or stock-lot quality, no offence, as envisaged under item No. (8) of section 156(1) of the Customs Act, was constituted, required hardly any evidence and could have been disposed of by now by the learned Special Judge. If that Court could come to a finding by examining the law and the rules on the subject that no such offence triable by the Special Judge had been committed, there was no point in prolonging the agony of the petitioners by dragging them until the termination of the trial.
8. It is obvious, and has also not been denied, that the goods imported was ammunition. The S.R.O.
No. 1426(I)/73, dated 5th October, 1973, speaks only of "Arms and ammunition" and not of ammunition of job-lot or stock-lot quality. It is not the State's case that the import licence issued to the petitioners itself had expressly prohibited the importation of job-lot or stock-lot quality. If the petitioners, therefore, did import goods of that quality, they could not be held guilty of smuggling, but could be liable for violation of the prohibition contained in if S.R.O. No. 945(I)/74, dated 8th July, 1974]. Every breach of a condition of the licence or the rules cannot, automatically, be said to instituted an offence triable by the Special Judge. That is not the scheme of the Act, for all the offences itemized in section 156 have not been made triable by the Special Judge. The instances where such trial is warranted are clearly indicated in column No. 2 against each item, whereas for the offences not so triable, the power has been given under section 179 to the Customs authorities.
The matters which are to go before the Customs authorities are the ones liable to "confiscation of goods" or "imposition of penalty". It is possible, and section 156 indicates so, that certain offences can go both before the Special Judge as well as before the Customs authorities and the offence under item No. 8 is one of such kind. For an offence under item No. 9, the prescribed penalty is confiscation of goods and penalty not exceeding two times the value of the goods. The power to impose such penalty is possessed by the Customs authorities under section 179. It is, thus clear, that a case of a violation of the rules or the laws relating to importation of goods, can be taken before
1. It contained Import Policy Order, 1974.
The Special Judge only if there is a clear provision for it, otherwise it would go before the Customs authorities for dealing with the goods and the violation. Prima facie, a breach of the prohibition contained in S R.O. No. 945(1)74, dated 8th July, 1974, has taken place which appears to be punishable under item No. (9) of section 156 (1) which is to be dealt with by the Customs authorities and not by the Special Judge. Precedents are not lacking to support the view I have taken. In Muhammad Bashir vs. The State etc, (1978 P. Cr. L.J. 837), it had been held that the mere fact of importation or exportation of certain goods being prohibited by any law will not amount to "smuggling" in the absence of notification under section 2 (s) of the Customs Act. In this case, the goods involved was Charas which did not figure in the notification issued under section 2 (s) of the Customs Act, and was found not covered by the prohibition contained in section 16. It was, therefore, held that "the offence at best could fall under clause (9) of section 156", and consequently the proceeding before the Special Judge was quashed. A similar view had been taken by a Division Bench in two other Karachi cases reported as Ch. Niaz Ahmed etc, vs. The State (PLD 1978 Karachi 774) and Syed Shabhir Ahmad Shah v. Pakistan through the Secretary to the Government of Pakistan Ministry Interior I Defence Islamabad etc. (PLD 1979 Karachi 68).
9. In the result, the proceedings before the Special Judge, Customs, Lahore against the petitioners are not warranted by law and are accordingly quashed.