1. JUDGMENT .
2. Facts briefly mentioned are that on 2nd December, 1990 Lt: Col. Ghulam Rasool Sabi on receipt of information about smuggling out Pakistani currency kept strict vigilance on Sea routes leading towards Dubai. At about 13 hours launch `Al- Naseem' was found cruising towards Dubai. Coast-Guard authorities gave signal to stop the launch but Sailer sped away. However, with the help of gun-boats after hot-persuit of about 30 minutes they forced the launch to stop near nine nautical miles south from Gwadur-Port. It is the case of prosecution that requisite notices under Customs Act were served 6n appellant Sabro and his companion Baloch Khan. They thoroughly searched the launch and sum of Rs.25,55,900 Pak- Currency which was allegedly being smuggled was recovered from specially designed concealed .
3. Cavities. F.I.R. No.2007/90 was lodged at Gwadur on 3-12-1990. Inventory of currency Ex.P/1-A and Ex.
4. P/1-B were prepared. On completion of investigation and carrying out necessary formalities appellant Sabro son of Mazar Sailer ( 1.4.r t; ) of launch `AI-Naseem' was sent up for trial, whereas mechanic Baloch Khan his companion was discharged. Challan No. 2/90 was submitted towards 16-12-1990 wherein Haji Din Muhammad, Khushal, Ahmad Ali, Rasool Bakhsh, Askani and respondent Muhammad Rahim were found connected with the offence and shown as abscdnders.
5. At the commencement of trial, charge was read out to appellant Sabro, who pleaded "not guilty" and claimed trial. It may be seen that trial Court without recording evidence or drawing effective proceedings, exercising powers under section 265-K Cr. P.C. Directed acquittal of the accused and allowed release of Pak-Currency in favour of respondent Muhammad Rahim. State feeling dissatisfied preferred Acquittal Appeal No.14/90 before Special Appellate Court Customs which was eventually accepted vide judgment dated 4-1-1992; when on reversal of impugned-decision directions were. Made to the Special Judge Customs for holding trial, afresh.
6. Record reveals that prosecution has examined three witnesses namely; P.W.1 Naib-Subedar Shaukat Ali, P.W.2 Major Ahmad Raza Khan add P.W.3 Lt: Col. Ghulam Rasool Sahi. They have implicitly supported recovery of Pakistani-currency amounting to Rs.25,55,900 from hidden cavities of Launch 'Al-Naseem', being sailed by appellant Sabro towards deep-sea. Deposition of P.W.2 Major Ahmad Raza Khan further discloses that respondent Muhammad Rahim used to collect.
7. Pakistan-currency from various persons for 'carrying the same to Dubai. Statement of appellant Sabro and Respondent Muhammad Rahim were recorded under section 342, Cr.P.C. On 5-1-1993.
8. They have denied all the allegations including recovery of amount from -the Launch. Appellant Sabro was also examined on oath under section 340(2), Cr.P.C., wherein he deposed that Coast Guard authorities had apprehended him from Gwadur near Askani Hotel. Similarly Muhammad Rahim in his deposition under section 340 (2) Cr. P.C. Expressed that Launch 'Al-Naseem' belonged to Syed Khalfan Khamees Saif Alaman and he was merely an attorney. Respondent Muhammad Rahim denied his ownership or connection with amount of Rs..25,55,900 recovered from the Launch. One Ali Bakhsh was produced in defence who supported appellant Sabro by stating that he was arrested by Coast Guards authorities from near Askani Hotel, Gwadur. Considering available material learned Special Judge, Customs Mekran Division at Turbat by means of judgment dated 17-1-1993 found appellant "Sabro" guilty for the offence under section 156(8) of Customs Act and sentenced him to undergo rigorous imprisonment for 3 years and fine of Rs.50,000 or in default 6 months' imprisonment and under section 156(9), Customs Act awarded fine of Rs,50,000 or in default imprisonment for 3 months. Benefit of section 382-B Cr.P.C. Was also allowed. Pakistani-currency was directed to be forfeited in favour of State. However, respondent Muhammad Rahim was acquitted of the charge.
9. Appellant Sabro feeling dissatisfied from the conviction and sentence awarded by learned Special Judge, Mekran; preferred (Customs Appeal No.3/93) before this Court on 15-2-1993. Whereas State being aggrieved from the above decision had preferred Customs Appeal No.2/93 praying for enhancement of sentence awarded to Sabro son of Mazar and conversion of acquittal into conviction and awarding of sentence to respondent Muhammad Rahim son of Shahdad Baloch.
10. Both these appeals are directed against same judgment of learned Special Judge Customs and involve identical points of facts and law, therefore, are being decided through common judgment.
11. Mr. Fazal-e-Ghani, Advocate for convict-appellant Sabro son of Mazar and respondent Muhammad Rahim strenuously urged that section 2(p) of the Customs Act specifies limits of Customs waters being twelve nautical miles from the coast, therefore, possession of Pak-currency within Pakistan does not constitute any offence as such criminal proceedings initiated against appellant Sabro and respondent Muhammad Rahim were totally without lawful authority. He argued that movement of Launch within twelve nautical miles cannot be construed as an attempt for smuggling. Reliance has been placed on the observations in (i). PLD 1952 Sindh 28, (ii) PLD 1986 SC 192 and (iii) PLD 1986 Quetta 305. It was contended that prosecution accusations do not disclose ingredients for proving offence under section 156(8) or 156(9), Customs Act. Learned counsel thus stressed for acquittal of appellant Sabro son of Mazar and prayed for dismissal of State Customs Appeal No. 2/93.
12. Mr. Muhammad Riaz Ahmad, learned Standing Counsel emphatically contended that all the witnesses unequivocally confirmed recovery of huge Pakistani-currency from Launch `Al-Naseem', which was overpowered and intercepted after considerable chase, while moving towards Dubai.
13. He further canvassed that circumstances clearly suggest attempt for smuggling Pak---currency out of the country. As regards .Respondent Muhammad Rahim it was argued that evidence suggests his involvement in collecting Pakistan-currency from various persons for smuggling abroad.
14. I have carefully considered the arguments advanced by learned counsel for parties in the light of available record..
15. To appreciate first argument, it would be appropriate to reproduce below section 2(p) of Customs Act, 1969:- "Pakistan customs waters" means the waters extending into the sea to a distance of twelve nautical miles measured from the appropriate base line on the coast of Pakistan."
16. Bare perusal of above provision shows that territorial limits of Customs waters extend up to twelve
(12) nautical miles from the Coast of Pakistan. Evidence establishes that launch was apprehended around nine (9) nautical miles from Gwadur Coast after considerable chase. Apparently said launch must be at some distance away from anchorage when initially followed. Question for consideration, arises whether launch which was still within Pakistani Customs waters, could be liable for smuggling away Pakistani---currency. It is well known that `attempt' to commit an offence is a mixed' question of law and fact depending upon circumstances of each case.
17. Generally it is believed that at first stage culprit entertains idea for violating law, then he makes preparations and eventually takes deliberate steps for implementing his intention to achieve proximate results. When vicious intention succeeds offence is committed, and if its performance is effectively foiled before accomplishment while being processed causes attempt for committing such offence or violation.
18. In order to ascertain true position evidence needs to be properly scrutinized. Deposition of prosecution witnesses indicates that launch was moving towards deep-sea towards Dubai when same was chased. There is absolutely no rebuttal to said evidence. Appellant Sabro who according to preponderant evidence was present in the launch when intercepted by the Coast Guard authorities, has not furnished any explanation and feels contended by merely denying the accusations. His assertion concerning arrest from near a Hotel at Gwadur is apparently unbelievable. It is matter of record that no enmity between prosecution witnesses or appellant has been alleged. There is no reason why they should falsely implicate appellant by showing recovery of huge amount which too is surprisingly refuted. From the material on record I am convinced that appellant was carrying Pak-currency in the concealed cavities of launch and made abortive effort to cross customs-water limits but failed. Thus cumulative effect of circumstances establishes attempt on the part of appellant Sabro to smuggle away, the currency. It has been stressed hard that even if apprehension, within nine miles is proved same would not constitute attempt for smuggling as observed in (i) PLD 1952 Sindh 28, (ii) PLD 1986 SC 92 and (iii) PLD 1986 Quetta 305.
19. First mentioned case, is with regard to a situation where contraband goods were being transported by the accused in a lorry from Karachi towards the border where no customs barrier existed.
20. Majority view of Honourable Judges held that conduct of accused at best showed preparation and not attempt of smuggling.
21. In the second case Hon'ble Supreme Court has drawn a distinction between `smuggling' and `attempt to smuggle the goods'. The accused Khan Muhammad who is an Afghan National arrived at Tor Kham Customs Post from Afghanistan for going to U.K. Through Pakistan. According to facts narrated in the case foreign-currency in his possession was checked by Customs authorities at Islamabad while proceeding towards destination but papers relating to visa were left behind at Peshawar. Thus journey was discontinued and he returned to Peshawar. After collecting relevant documents he proceeded from Peshawar to Karachi on 18-3-1993. While in the process of embarkation he was apprehended by Peshawar Customs authorities and foreign-currency was seized from his possession. Learned Peshawar High Court in Writ-Petition observed that foreign- currency seized from the possession of respondent in the peculiar circumstances was not liable to confiscation and allegations did not constitute attempt for smuggling. It would be profitable to reproduce relevant observations relied upon by learned counsel for appellant:- PLD 1986 S.C.192, Paras (9 & 10).
22. "Applying the aforesaid principles to the present case we are of the firm view that the acts done by the respondent before he was intercepted at Peshawar Airport did not constitute attempt to smuggle the alleged foreign currency out of Pakistan but at best the stage reached was that of mere preparation to commit that offence. As already discussed even if there is undoubted evidence of intention to commit the offence on the part of the offender and of preparation to carry out that intention the law does not make the person entertaining such intention or doing such acts of preparation culpable, so far as the offence of smuggling is concerned. Because there is always in such cases a possibility of change of mind or locus penitential to give up the prosecution of the criminal intent beyond the stage of preparation. We, therefore, agree with the learned Judges of the High Court, that the mere act of boarding internal flight from Peshawar to Karachi was not an act of such an approximate nature as would amount to an attempt to smuggle, although it might constitute preparation to commit that offence. The act of boarding a flight at Peshawar which terminates at Karachi is not an act forming part of series of acts which could constitute actual commission of the crime of smuggling if it were not interrupted. If any further acts had been done by the respondent to board a plane which would have taken him out of the country along with, the contraband goods, there might have been a case of an attempt. But before he could embark upon any such act, he was intercepted at Peshawar, so that the act attempted by him does not satisfy the test that the doing of the same cannot reasonably be regarded as having any other purpose than the commission of the specific crime.
23. For all these reasons there is no merit in the contention advanced by the learned Deputy Attorney- General that the facts established on the record made out a case of attempt to smuggle foreign currency by the respondent."
24. Third report deals with importing of foreign-currency in Pakistan on the strength of notification issued by State Bank, which has no applicability to the facts of present matter.
25. Now reverting to instant case, it may be seen that circumstances are completely distinguishable from afore quoted reports. Here conscious overt act making efforts to drive away the launch towards deep-sea despite hot pursuit by Coast Guard authorities is duly established. Evidently, on believing testimony of prosecution witnesses it can be safely assumed that; if concerned authorities had not overpowered and intercepted the launch for another distance of three nautical miles it would have been fiat-accomplished, making apprehension or seizure beyond the competence of coast guards. Whereas in above reported first two cases there was possibility of meditation with the culprit considering plausibility of carrying across the goods or currency.
26. However, in the present case positive steps taken by appellant for trying to cross specified limits, till physical apprehension, are duly proved. This situation is visualized in the reported judgment reproduced above. Therefore in my opinion responsibility for attempting to smuggle out Pak- currency was rightly fixed on the appellant.
27. There is also another aspect which marks clear distinction from aforementioned reported decisions. Apparently in the instance case appellant laving left, place of anchorage for moving towards deep-sea had practically detached his connection for reverting to soil. Whereas facts forming part of exported cases indicate possibility of accused to hold back the goods or Pak-- currency within the territory and change his intention. Circumstances of present case clearly point out conscious attempt on the part of appellant Sabro to leave the limits of Pak. Customs Waters.
28. Therefore in my opinion trial court was justified in holding appellant Sabro guilty for the offence under section 156(8) of the Customs Act. Since appellant by expressly disclaiming the money seized by the Coast-guard authorities has also suffered loss and accusations constitute merely attempt to smuggle away currency; therefore, sentence of rigorous imprisonment for two years instead of three years would Beet ends of justice. However, amount of fine as awarded on both the counts maintained.
29. Now examining the case of respondent Muhammad Rahim it may be en that only P.W. Maj. Ahmad Raza deposed about his participation by collecting Pakistani-currency from various people with intention to smuggle the me out of country. His statement is ex facie hearsay, therefore, totally admissible. There is not an iota of incriminating evidence which may connect id Muhammad Rahim or any other absconding accused for the commission of alleged offences. It is pertinent to note that respondent Muhammad Rahim has also disclaimed the amount of Rs. 25,55,900 seized from the launch. Thus proper security discloses hardly any evidence against respondent Muhammad Rahim and accused persons shown as absconders in the challan. Accordingly proceedings against them appear to be unnecessary and abuse of the process of Court.
30. For the above reasons I do not find any merits in the appeal No.2 of 1993, filed by the State which is directed to be dismissed.
31. Both the appeals are disposed of in the above terms.