This is an appeal against the judgment of Mr. Hidayat Hussain, Foreign Exchange Tribunal (Tribunal constituted under section 23 of the Foreign Exchange Regulation Act) Karachi, whereby the appellant was convicted under section 8 (1) of the Foreign Exchange Regulation Act read with section 23 of the said Act, and sentenced to imprisonment till rising of the Court and a fine of Rs.
50,000 in default R. I. For one year.
Briefly stated the facts of the case are that on 9-10-1969 the appellant reached Karachi by s. s. Kampala. While on board the appellant had been given F. M. Form by the purser of the ship to be filled in. This four provides for a declaration of currency, jewellery and precious stones. It is admitted case that the appellant disclosed only an amount of its 2,666 as the amount in his possession at the time of his arrival in Pakistan. In the Customs Shed, Syed Badar Alam, the Preventive Officer examined the baggage of the appellant. There are then two versions of the case, one coming from the prosecution and the other from the appellant. While the; prosecution states that a sum of Rs.
53,965 and gold ornaments weighing about 45 tolas were seized by search of a crockery box brought by the appellant to Karachi, the version of the appellant is that the seizure was not in consequence of a search but that he himself had disclosed the possession of Pakistan currency and gold. The appellant has gone on to say that although he had filled up the F. M. Form he was not aware whether the law required declaration of Pakistan currency and he therefore asked the Customs Officer if he had to declare currency notes also. It appears, from the record that it is a case of appellant, that he was under the impression that he was not to declare Pakistan currency but only travellers cheques car drafts. He had therefore declared the same but had omitted to declare Pakistan currency and gold in the F. M. Form. However, the Pakistan currency and gold was seized by the Customs Officer under Mashirnama Exh. 8 in presence of mashirs, Angaro and Ishaque. Angaro has been examined in Court and he has substantially supporter) the prosecution case.
3. The appellant in his statement did not deny the recovery of Pakistan currency amounting to Rs.
53,965 and 45 tolas of gold and even before me his learned Advocate has not contested the fact of possessor of gold and currency, In fact the defence of the appellant at pre-trial stage in answer to notice under section 23 of the Act was that he had not declared the amount and gold in the F. M.
Form on account of ignorance of law, which to say the least, is no defence in law. However, the appellant has stated and that appears to be his case right from the beginning when he was asked to submit an explanation to the State Bank that he had informed Badar Alam, the Customs Officer with regard to possession of Pakistan currency and gold. Such suggestion was made to Customs Officer in cross---examination but the same has been repelled by him. Even mashir Angaro has been cross-examined on this point but he has stated that he did not hear any talk that might have taken place before the seizure. The appellant, however, examined 2 defence witnesses Muhammad Ashraf and Bashir Ahmed. As far as Muhammad Ashraf's evidence is concerned he has stated that he travelled to Karachi along with appellant by the same boat. His evidence is that the appellant asked the Customs Officer to permit him to include Pakistan currency and gold in the F. M. Form.
This witness has not been relied on by trial Court and in my view rightly. Admittedly the appellant had gone to Kotli a place situated in the province of Punjab and had brought this witness for the purpose of giving the evidence. This defence witness has also said that he had stayed in Kampala for 41 years. The presence of this defence witness was not disclosed at any stage earlier than the stage for production of defence evidence and the appellant did not mention his name in his statement. This defence witness goes to the length of saying that the F. M. Form was filled in Customs Shed when the appellant himself stated in the explanation that the Form was filled on board. The other defence witness is Bashir Ahmed whose evidence appears to be absolutely untrue. This witness has stated that F. M. Form was given to the appellant by the Customs Officer but it is the consistent case of the prosecution and it is also stated by the appellant that the said form was, given to him by the purser of the ship when he was on board. Moreover he appears to be closely connected to the appellant as he had gone to receive him.
4. The very circumstance that the appellant had kept a sum exceeding half a sum of rupees and gold ornaments weighing 45 Colas in a crockery box is not without significance. The appellant had stated in his explanation under section 23 of the Act that he kept the same in the crockery box so that bad characters may not steal the money and the gold while he was on board. The explanation is fantastic because if the appellant really wanted to keep this property secured he could have easily kept the same on his person and that would have been more safe. At the trial he did not give any explanation for keeping this property in a crockery box. I am in no doubt whatsoever, that this seized amount of money and gold was kept in the crockery box with the intention of escaping any suspicion or attention of any Customs Authority who might have searched him. Badre Alam, the Customs Officer has stated that on inquiry the appellant had before seizure stated that he had no currency or gold.
5. On the facts I have no doubt that the allegations of the prosecution are proved beyond any reasonable doubt and that the appellant did not declare the currency and gold that he illegally imported.
6. However, the contention of the learned Advocate for the appellant is that import of jewellery is not prohibited in view of the provisions under section 8 (1) of the F. E. R. Act. The learned Advocate has invited my attention to the provision of section 8 (2) of the same Act wherein jewellery is specifically mentioned. The learned Advocate has therefore, by comparison of the two provisions argued before me that if the intention of the Legislature had been to include jewellery in the definition of "any gold" in section 8 (1) of the Act the same word "Jewellery" would not have been specifically mentioned in section 8 (2) of the Act.
7. This brings me to the consideration whether gold will include jewellery in a case where jewellery consists of ornaments made of gold. The words in section 8 (1) are "any gold". The word "any" is significant and could not be considered to be mere tautology. Webster's Dictionary defines gold as meaning "made or consisting of gold". Chambers Dictionary defines gold as "article made out of gold, made of or like gold", Stroud defines gold as "not merely what appears gold but what is in common parlance called gold". In the case of Goldsmith Co. v. Wyall ((1907) 1 K B 95) Farwell L. J.
Considered a case where the rival contentions were whether gold and silver w etch b cases imported in that country could be considered to be gold and a silver plate and the learned Judge held, reversing the judgment of Challnel, J. In the case reported in (1905) 2 K B 586; that gold and silver watch cases forming parts of finest watches imported in England would be considered as gold and silver plate. In the case of Scott v. Solomon ((1905) 1 K B 577) a somewhat similar question arose. In that case the appellant had sold packets of tea containing some prize coupons which were interchangeable with gold watches. It was held that this amounted to dealing in plate for which a licence was required.
8. The definition of gold in section 2 (f ) in the F. E. R. Act runs as follows:- "Gold includes gold in the form of coin, whether legal tender or not, or in the form of bullion or ingot, whether, refined or not."
9. The learned Advocate's contention is that on this definition jewellery could not be deemed to have been included in the words "any gold". Such an interpretation would be clearly misconceived.
Merely because some species of gold are specifically mentioned in the definition would not imply that the definition as contained in the Act was complete and comprehensive. On the other hand gold in common parlance would mean and include jewellery or ornaments made out of gold. In several cases such a position has been considered. In the case of Commissioners of Sales Tax v.
Abdul Razzaq (PLD 1912 Lah, 773), a Division Bench of Lahore High Court interpreted the word "include". The learned Judges held that word "include" is used with a view to enlarging the meaning of the word, by clothing it with the connotation given to it in the interpretation clause in addition to the sense which it conveys in common parlance, In the case of Col. Muhammad Amin Khan and others (PLD 1966 Lah, 111), the word "include" was interpreted. This interpretation of the word "include" was made in juxtaposition with the word "means" which is used to restrict the scope of the word to what is stated in the clause and to deprive it of any other meaning that it may have in the English language, but the word "include", on the other hand, is used with a view to enlarging the meaning of the word by also clothing it with the connotation given to it in the interpretation clause in addition to the sense which it conveys in common parlance.
10. Even on general principles of interpretation of words, in as enactment a word has to be interpreted in a manner that should advance the object of law. The object underlying the provisions of the Foreign Exchange Regulation Act is to restrict illegal import. The word gold there-- fore must necessarily be interpreted in a manner as would be consonant with the abject of the Act itself; for, to hold otherwise, that gold does not include jewellery or ornaments made of gold will be setting at naught, the provisions of the Act itself and open the gates of mischief. It would then mean that a person only needs to get some rough and raw ornaments made of gold and circumvent the law. Such interpretation will revolt against as the rules of interpretation,
11. Mr. Haider A.I Pirzada appearing for the respondent has also invited my attention to the provisions of Passenger Beggages (Import) Rules, 1958. These Rules have been framed under the Sea Customs Act. Under section 8 (3) of the Foreign Exchange Regulation Act the restrictions imposed under the section are to be deemed to have been imposed under section 19 of the Sea Customs Act and subsection (3) of section 8 makes violation of such restrictions indictable under section 23 of the Foreign Exchange Regulation Act. Rule 4 of the Passenger Baggages (Import)
Rules 1958, permits import of personal jewellery or imitation jewellery of the value not exceeding Rs.
5,000 provided it is neat imported for sale, exchange or gift. This relaxation is in the nature of allowance to tourists and passengers. A note appearing under rule 4 (2) (Iii) provides that in case of deck passengers this allowance to the extent of Rs. 5,000 tray be reduced at the discretion of the Custom Collector. In the present case the gold ornaments that were brought could not be termed personal jewellery. The ornaments consist of 30 bangles, 2 karas (bracelets) two necklaces, one chain etc. By the very nature of these ornaments the same could not be termed as "personal jewellery" of the appellant and for that reason also he would corns within the mischief of section 8
(3) of the Foreign Exchange Regulation Act. The learned Advocate for the appellant has however, relied on the provision of Para. 248 of Exchange Control Manual. This para. Is reproduced at page 138 of the book "Lave of Foreign Exchange in Pakistan--" by Dr. Kutubuddin Ahmed. This provision reads as follows:--"248, Impart of Jewellery.----There are no restrictions under the Foreign Exchange Regulation Act 1947 on the import of jewellery. The import of jewellery is however, subject to the Import Trade Control Regulations:--
12. Mr. Hyder A.I Pirzada appearing for the State Bank of Pakistan has informed me that the above- quoted para. In the State Bank of Pakistan Manual is merely in the nature of instruction issued by the State Bank o Pakistan. On the other hand the learned Advocate for the appellant ha not been able to point out any provisions of law under which such instruc--tions may nave been issued. If these are mere instructions the same cannot override the provisions of section 8 (1) of the Act or Baggage Import Rules, 1958, issued under Sea Customs Act. However, even this provision cannot help the appellant because the effect of this provision is not to take out gold ornaments from the definition of gold of to relax the provisions contained in section 8 (1) of the Foreign Exchange Regulation Act. This point does not advance the case of the appellant. I therefore, hold that the appellant has infringed the provision of section 8 (1) of the Foreign Exchange Regulation Act and thereby exposed himself to the punishment under section 23 of the said Act.
13. With regard to import of Pakistan currency the legal position was not challenged by the learned Advocate for the appellant. In fact notifications issued by the State Bank under Foreign Exchange Regulation Act clearly prohibit the bringing of any Pakistani currency within Pakistan from abroad without a declaration. These Notifications bearing No. F. E. 4/61-SB dated the 11th May, 1961 and No. F.
1 (8)-EF/49 dated 2nd May, 1949, clearly state that no person shall be allowed to bring any State Bank of Pakistan E notes into Pakistan unless he makes a declaration to the Customs Authorities at the time of entry in the form prescribed by the State Bank of Pakistan in that behalf. The latter notification also provides that in any case currency notes of denomination higher than Rs. 100 could not be brought into Pakistan at all. The bar is complete. In this case the appellant has brought currency even of the denomination of Rs. 500. Faced with this situation the learned Advocate for the appellant has confined his argument only to the point that he made a declaration. I have in the earlier part of this judgment held that the appellant did not declare this amount of Rs. 53,965 and the sum along with gold ornaments was concealed in crockery box to escape attention of Customs Officers. I am clearly of the view that the appellant did not declare this currency that he was carrying with him.
14. For the above reasons I would dismiss his appeal. The learned Advocate has however, prayed for reduction in the sentence. I am not inclined to reduce the sentence of fine as there is no sentence of imprisonment. However, the sentence of one year's imprisonment imposed for default in payment of fine is illegal. The maximum term of imprisonment as provided in section 23 of the Act is two years and by reason of section 65 o the Pakistan Penal Code the imprisonment in default of payment of fin cannot exceed one-fourth of the said term. In that case the maximum sentence that an accused is liable to suffer for non-payment of any fine p that might he imposed could not be in excess of six months' R. I. Looking to all the circumstances, including the fact that the appellant has lost a huge amount of about Rs. 65,000 on account of confiscation of currency and gold, I am of the view that a sentence of 3 months' R. I. In default of payment of fine Rs. 50,000 will meet the ends of justice and I direct accordingly.
15. In the result the appeal of the appellant is dismissed but the appellant shall suffer only 3 months' R. I. In case he fails to pay the fine of Rs. 50,000.