MUNAWAR AHMED MIRZA, J.--1. Facts briefly stated are that pursuant upon credible information received by Pakistan Coast Guards, about smuggling huge quantity of Pakistani and foreign currency from Pakistan to Dubai through sea, that mobile patrolling party headed by Lt. Col. Moeen-ud-Din, Commandant 1 Battalion was launched on the coastal area of their responsibility. It is alleged that towards 5-30 a.m. On 30th April, 1989 patrolling party saw a vehicle and a Hora standing near the sea shore, they rushed towards that direction. The smugglers, sitting in the 'Hora' fired at patrolling party of Coast Guards, whereupon firing was exchanged. However, Hora', managed to escape; but 3 persons namely Asghar Ali, Jawad Ali and Muhammad Bakhsh who intended to deliver currency to persons in 'Hora' were apprehended. Two poly- proplyne bags were recovered from accused Jawad Ali which contained Pakistani currency of Rs. 1,09,99,400 (Rupees one crore nine lacs ninety nine thousand and four hundred). While searching Toyota Land Cruiser, stated to be driven by petitioner Asghar Ali, huge quantity of foreign currency of various countries concealed in cavities alongwith a short-gun and cartridges, were recovered. After necessary investigation, petitioners alongwith other co-accused were challaned before the Special Judge Customs, Khuzdar to face trial under section 156(1)(8)(89) of the Customs Act. It appears that on the commencement of trial towards July, 1989 petitioner Asghar Ali submitted an application under section 265-K, Cr.P.C, which was rejected by means of order dated 20th December, 1989. The same is reproduced below.
"This order will dispose of an application filed on behalf of the accused under section 265-K, Cr.P.C, who are facing trial before this Court under section 156(1)(8)(89), Customs Act.
Heard counsel for the accused and Mr. Farooqi for Pakistan Coast Guards and have seen the record of the case.
It is the case of prosecution that the accused were attempting to smuggle out of Pakistan a huge quantity of Pakistani, as well as, foreign currency which is in Crores and were apprehended near sea shore. The counsel for accused stressed that no case is made out against the accused under section 2(s) of the Customs Act. As no witness has yet been examined, it is premature to say that the accused are innocent. Such huge quantity of foreign currency can not be foisted by the prosecution with mala fide intention. The application is premature which is accordingly dismissed.
2. Present petition now challenges aforementioned order of Spacial Judge Customs, Khuzdar.
3. M/s. Basharatullah and Sheikh Ghulam Ahmed learned counsel for petitioner vehemently contended that stated allegations do not constitute offence of smuggling within the purview of section 2(s) of the Customs Act, 1969. They urged that circumstances do not constitute either abetment or attempt or connivance on the part of petitioners for smuggling. Therefore, according to them petitioner was entitled to acquittal without trial.
4. On the other hand Mr. Muhammad Riaz Ahmed learned standing counsel strenuously opposing the petition, contended that petitioner was driving Toyota Land Cruiser from which huge quantity of foreign currency and shot-gun concealed in the cavities was recovered. He further pointed out that there is common intention of all the accused persons for attempt to smuggle Pakistani and Foreign Currency which is supplemented by the presence of 'Hora' on the sea shore and exchange of firing by the persons sitting therein. According to him connivance and attempt for the offence of smuggling was fully established from the record. It was further submitted that trial Court is seized of the matter and two witnesses namely (i) Lt. Col: Moeen-ud-Din and Maj. M. Shabir Ahmed have already been examined in the case, who have given positive statement implicating the petitioner Asghar Ali and co- accused, therefore, exercise of revisional jurisdiction at this stage is not justified.
5. I have carefully considered arguments addressed by learned counsel for parties. It may be seen that smuggling has been defined by section 2(s) of Customs Act, 1969. For ready reference said definition is reproduced below:-- "(s) "smuggling" 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,-
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substance; or
(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which in each case, exceed five thousand rupees in value; or
(iii) 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 expressions shall be construed accordingly."
6. Bare perusal of above definition suggests that even attempt, abetment or connivance for taking away Pakistani currency in breach of any prohibition or restriction, like any other items, specified in the law, constitutes act of smuggling. It may further be noticed that scope of smuggling is very wide, encompassing all possible factors which may connote attempt, abetment or connivance for bringing in or taking out of country any of specified goods including currency. Evidently abettor is a person who instigates, promotes, commands or procures commission of crime. It presupposes that such person may merely command, advise, instigate or encourage another to do the crime, and thus would be equally responsible with main culprit. Whereas attempt as defined by Law of Lexicon Fourth Volume suggests intentional act which a person does towards the commission of offence, but which fails in its object through circumstances independent of such violation. It is obviously an effort of the person to accomplish illegal action which otherwise is frustrated by the happening of certain events. Whereas connivance has been described by Black's Law Dictionary revised Fourth Edition at P-375; "Secret or indirect consent or permission of one person to the commission of an unlawful or criminal act by another. Winking at; voluntary blindness; and intentional failure to discover or prevent the wrong;................................................. Forbearance or passive consent to co-operate secretly with; or to have secret or clandestine understanding with, to look upon with secret favour: it implies both knowledge and assent, either active or passive."
7. The prosecution has obviously made serious accusations against petitioner, supported by recovery of huge currency. An attempt was made to show some procedural defects regarding competency of Coast Guard to apprehend petitioner and goods from 'Sapat Bunder' but said objection apparently has no legal sanction. Furthermore, it may be seen that when application under section 265-K, Cr.P.C, was submitted before trial Court, all the? Accusations existed on record, which certainly constitutes a prima facie case. Therefore, considering broad definition of smuggling embracing attempt, abetment and connivance for the commission of offence; trial Court rightly rejected the application moved by petitioner. I am fully satisfied that there is no illegality in the impugned order. Besides, it may be mentioned that normally jurisdiction under section 265-K, Cr.P.C, can only be exercised by the trial Court if petitioner was being prosecuted without proper material implicating or connecting him with the commission of any offence. This position obviously does not exist in the instant case. It is also well-settled that revisional jurisdiction cannot be invoked for interrupting or diverting the normal criminal proceedings or for throttling the prosecution. Therefore, keeping in view circumstances discussed above the petition even otherwise is not competent.
8. Additionally, now two witnesses have been examined by the trial Court who have narrated the incident specifying presence of 'Hora' in the sea shore and exchange of firing with Coast Guards.
9. Since for the above reasons, I propose to reject the petition, therefore, it is expedient to refrain from making any comments on merits. However, suffice it to observe that petition is highly misconceived, as such directed to be dismissed.