MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has arisen out of the judgment dated 27-12-1999 passed by a learned Division Bench of High Court of Balochistan in a case under section 156 (1) (8) and (89) of the Customs Act, 1969.
2. The relevant facts in the background are that a raiding party of coast guards, headed by Lt.-Col. Moeenud Din, Commandant First Battalion, Pakistan Coast Guard. On receipt of secret information regarding the smuggling of huge quantity of Pakistan and foreign currency out of Pakistan by the petitioner and his companions was on surveillance on 30-4-1989 when at 5-30 p.m. They found a vehicle parked on sea shore at "Spot Bander" near a 'HORA'. The smugglers present in the vehicle on noticing the presence of raiding party, opened firing and in reply the patrolling party also exchanged firing and meanwhile ' HORA' disappeared in the deep sea. The petitioner and another namely Muhammad (since dead), were apprehended at the spot with vehicle whereas their other companions escaped from the scene of occurrence. During the personal search of the petitioner, the patrolling party recovered Pakistani currency from his possession and on search of the vehicle, the foreign currency was recovered from the secret cavities of the vehicle as detailed below:--
1. Pakistani currencyRs,1,09,99,000 2.Indian currency Rs,17,85,200 3.Japan (Yen) 10,000 4.Saudi Arabia 1,66,750 Rials 5.Switzerland (a)
(b)50 Dix Franch 200 Zawanzing Frankin 6.Nederland 700 Gulden 7.Hong Kong 1700 Dollars 8.Malaysia 500 Ringgist 9.Scotland 180 Pound 10.Singhapore 700 Dollars 11.Australia 700 Dollars 12.Canada. 1800 Dollars 13.France (a) (b) 16800 Cent 200 Clguante Frances 14.Kuwait 2300 Dinnars 15.Qater 400 Rials 16.UAE 17600 Dirhams 17.Oman 100 Rials 18.Bahrain 600 Dinar
3. The raiding party also recovered a double-barrel gun with 14 live cartridges from the petitioner and six crime empties from the spot.
4. The petitioner and his co-accused were challaned for committing an offence of smuggling punishable under section 156(1)(8) and (89) of Customs Act, 1969 and were tried by the learned Special Judge, Customs, at Quetta. The prosecution produced three witnesses namely Lt.-Col. Moeenud Din (P.W.1), Major Shabbir (P.W.2) and Major Sobuh Sadiq (P.W.3) in support of the charge.
Lt.-Col. Moeenud Din and Major Shabbir while repeating the prosecution story as contained in the F.I.R stated that at the time of apprehension of the petitioner and his companion Muhammad, at the sea shore, the Pakistan currency and a shotgun with live cartridges were recovered from the petitioner and six crime empties from the spot whereas foreign currency of different countries was recovered from the secret cavities of the Land Cruiser in their possession. The petitioner alongwith his companion, was arrested. They were served with a notice under section 164 of Customs Act, 1969 and later they were also served with a notice under section 171 of the Customs Act, .1969. The petitioner and his companion, in their statement, under sections 342 and 340(2); Cr. P.C. While denying the charge, pleaded that they were travelling on the road alongwith the coastal belt when the officials of coastal guard stopped them at a place between that and Bella and on the pretext of checking their vehicle while taking into possession the Pakistan currency being carried by the petitioner, a fish merchant, for payment to his customers, fish suppliers, arrested them and registered a case against them under Customs Act, 1969. They however, denied the possession of foreign currency and produced Muhammad Ayub Buladi (D.W.1), Abdul Hameed (D.W.2) and Dr.Hayat Ali (D.W.3) in their defence. The learned Special Judge, on the conclusion of the trial, while converting the charge from section 156(1)(8)(89) to section 156(1)(8)(92) of the Customs Act, 1969 convicted and sentenced them to two yens' R.I. Each with a fine of Rs,1,00,000 each and in default of payment of fine to undergo R.I. For six months each under section 156(1)(8) of Customs Act, 1969.
They were also convicted and sentenced under section 156(1)(92) of Customs Act, 1969 to one year's R.I. With a fine of Rs,50,000 each and in default of payment of fine to undergo R.I. For three months each with direction that both the sentences shall run concurrently.
5. The petitioner and his co-convict challenged the legality of their conviction and sentence by way of filing an appeal under section 185-F of the Customs Act, 1969 and a learned Single Judge of High Court of Balochistan notified as the Special Appellate Court under the Customs Act, 1969, while dismissing their appeal vide judgment dated 10-11-1994, reduced their sentence under section 156(1)(8) to one year's R.I. With fine of Rs,50,000 each and in default of payment of fine to undergo R.I. For three months each. The sentence under section 156(1)(92) of Customs Act, 1969, was reduced to six months' R.I. With a fine of Rs,25,000 each and in default of payment of fine to undergo R.I. For 45 days each with direction that both the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
6. Being aggrieved of the judgment of Special Appellate Court, the petitioner and Muhammad (since dead) filed a joint petition for special leave to appeal before this Court which was dismissed with majority view that no such petition against the Appellate Court under Customs Act, 1969, was maintainable and that the petitioner could invoke the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan in the matter. The petitioner then challenged his conviction and sentence by filing a Constitutional petition in the High Court of Balochistan and on dismissal of the same by a learned Division Bench of the High Court through the impugned judgment has approached this Court. The writ petition was dismissed mainly on the ground that the petitioner was concurrently found guilty by the two Courts, therefore, the matter would not call for interference of the High Court in its Constitutional jurisdiction and that the writ petition was also suffering from laches.
7. Learned counsel for the petitioner has sought leave to appeal against the impugned judgment on the ground firstly that possession of Pakistan currency within the territory of Pakistan would not constitute an offence of smuggling punishable under the Customs Act, 1969. Secondly, the seizure of Pak currency by the coastal guards, registration of the case under Customs Act, 1969, and the trial of the petitioner for the smuggling of Pak currency was illegal and thirdly; the adjudication S proceedings by departmental authorities under Customs Act, 1969, were also without lawful authority.
8. The learned Deputy Attorney-General while opposing this petition, has submitted that undoubtedly in the normal circumstances keeping in possession Pak currency of any value in the territory of Pakistan is not an offence but in the present case, the petitioner and his companions were apprehended at the coastal belt when they were in the process of making an attempt to smuggle the Pak and foreign currency out of Pakistan and during the process also exchanged firing with the officials of coast guard and that their act would squarely fall within the ambit of smuggling as defined under section 2(s) of the Customs Act, 1969 punishable under section 156(1)
(8) and (92) of the Customs Act, 1969. In support of the argument, he has placed reliance on Muhammad Sarwar and others v. Haji Muhammad Hussain and others (1998 SCM R 1938).
9. We have heard Mr.Yahya Bakhtiar, Senior Advocate Supreme Court counsel for the petitioner and learned Deputy Attorney-General at length and also perused the record with their assistance. The charge was framed against the petitioner and his co-accused by the Special Judge Customs in the following terms:- "That you all on 30th April, 1989 at about 5-30 p.m. At Bunder were found in possession of Pakistani currency Rs,1,09,99,400, Indian Rs,17,85,200, Japan 10,000 Yen, Saudi Arabia 1,66,750 Rials, Switzerland (a) 50 Dix Francs (b) 200, Zwangzig, Nederland 700 Gulden, Hong Kong 1700 Dollars, Malaysia 300 Ringgit, Scotland 180 Pound, Singapore 700 Dollars, Australia 700 Dollars, Canada 1800 Dollars, France (a) 16,800 Cent (b) 200 Cinquante Francs, Khwait 230-1/4 Dinars, Qatar 400 Rials, WAE 17,600 Dirhama, Oman 100 Rial, Bahrain 600 Dinnars, etc without any lawful authority. One shot gun double-barrel with ammunition and Toyota Land Cruiser Jeep No,282-291 approximately valued to Rs,1,48,90,000. The proof of lawful import and lawful possession thereof could not be produced by you individually at the time of raid knowing or having reason to belief that the same is to be smuggled, thereby, you the accused above named have committed an offence udder section 2(s) punishable under section 156(i)(89) of the Act, 1969, with the cognizance of this Court".
10. The petitioner and others denied the charge and pleaded not guilty.The petitioner in his statement under section 342 and section 340(2), Cr.P.C. While denying the possession of foreign currency, claimed the ownership of the Pak currency taking the plea that he being a fish merchant, was carrying the Pak currency with him while travelling on road leading from Karachi to Quetta along the coastal belt in the territory of Pakistan to make payments to the fish suppliers when he was apprehended by the people of coastal guard. The witnesses produced by the petitioner in his defence stated that during the general checking of vehicles on the road, the officials of coastal guard having found Pak currency in possession of the petitioner, took him into custody. Precisely according to the defence version, the petitioner being engaged in the fish business was proceeding to the places of suppliers of fish to make payments to them whereas the prosecution case in that the petitioner and his companions were apprehended while making an attempt to smuggle the Pak and foreign currency out of Pakistan which is an offence under Customs Act, 1969.
11. The transaction can be divided into parts. The first part relates to the seizure of Pak currency from the possession of petitioner on the ground that he at the sea shore, was, in the process of taking it out of Pakistan. The second part relates to the recovery of foreign currency from the secret cavities of vehicle through which the petitioner and others, were travelling.
12. "Smuggling" has been defined in section 2(s) of the Customs Act, 1969 as under:-- " smuggle' 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 substances; 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 fifty thousand rupees in value; or
(iii) any good'; 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."
13. The attempt, abetment or connivance to commit an offence of smuggling would include in the expression "smuggle" which being an offence, is punishable under the provisions of Customs 'Act, 1969 but the attempt to smuggle has not been specifically defined in the said Act. The intention, preparation, attempt and completion of an act are the essential components of an offence but an attempt to commit an offence in the criminal administration of justice, is a distinct offence which is completed if in consequence to the preparation, an overt act is taken to commit the crime. The preparation to commit an offence is, devising or arranging the means and measures which are necessary to commit the crime but the decision of this mix question of law and fact always depends upon the circumstances of each case. In short, the attempt to commit an offence is taking of steps to do something which if is done is a criminal offence and if the act in consequence of such steps does not amount to a criminal offence, it is not an attempt. The mere preparation to commit an offence is different from an attempt to commit such an offence and the attempt is only completed when its three essential ingredients, firstly the intention, secondly, the preparation and the thirdly the taking of a deliberate overt act, are available but before reaching the third stage, the attempt to commit an offence remains incomplete. The intention or preparation to commit the crime if are followed by a physical step for performance of an act towards the commission of the crime is an attempt but it is not an attempt if the offender after the preparation, fails to consummate commission of offence because of the circumstances beyond his control. In the present case, except the presence of the petitioner at sea shore with Pak and foreign currency, there was no evidence to suggest that he was making an attempt to smuggle the currency out of Pakistan and therefore, the answer to the question whether in the given circumstances, he could be charged for an act of smuggling punishable under Customs Act, 1969 and held guilty, would definitely be given in the negative. The prosecution story that petitioner and his companions were confronted by the officials of coast guard when they were in the process of taking the Pak and foreign currency to the sea shore to smuggle it out of Pakistan but as a result of exchange of firing they could not succeed and the petitioner alongwith one Muhammad was apprehended at the spot with the currency, even, if was true, still they had not yet crossed the stage of preparation and completed the offence. There being no prohibition of keeping the Pak currency of any value in possession within the territorial boundaries of Pakistan under the law, the mere fact that petitioner was found in possession of Pak currency at the sea shore would not be an offence and suspicion that he would be committing an act of smuggling the currency would not be substituted with proof in absence of positive evidence. In a case in which a person is found in possession of smuggled goods it is for such person to explain the lawful possession of the goods but in a case in which the possession of goods is legal and it is not at all required to be explained, the seizure of such goods would be illegal and further neither the burden of proof can be shifted to the person in whose possession the goods were seized nor a of guilt can be raised in such a case and thus the act of taking of the Pak currency by the petitioner to the sea shore even if is presumed that he intended to smuggle it out of Pakistan it would not constitute on offence of smuggling under Customs Act, 1969 whereas the recovery of foreign currency from the secret cavities of the vehicle and failure of the petitioner to explain its lawful possession would give rise to a presumption of guilt under section 187 of the Customs Act, 1969. However, this special provision for raising the presumption of guilt can only be pressed into service after the basic onus of proving the illegal possession of the goods is discharged by the prosecution and no such presumption should be raised without taking into consideration the explanation of the accused and if the explanation given by the accused reasonably casts a doubt in the correctness of allegations, the benefit of such doubt must be given to the accused. Learned Deputy Attorney-General while placing reliance on the observation of this Court in C.B.R. And others v. Khan Muhammad (PLD 1986 SC 192) has argued that the recovery of huge quantity of Pak currency from the petitioner at the sea shore would be sufficient evidence of his intention and preparation to smuggle the currency out of Pakistan and the failure of his physical exercise of taking it out of the limits of Pakistan, due to the operation of the officials of the coast guards would not suggest that the offence of attempt to smuggle was not committed and consequently, the conviction and sentence awarded to him by the learned Special Judge and maintained by the Appellate Court in appeal and also by the High Court in writ petition, would not call for interference of this Court. In the case referred above, the passenger's declared the foreign currency at the customs station while in transit and during checking at Islamabad Airport, it transpired that he left his journey papers at Peshawar therefore, he went back' t- Peshawar from where he had to board on a flight for Karachi and during search of luggage, the foreign currency being carried by him was seized. It was held by the High Court that the passenger being still in Pakistan had not made an attempt to smuggle out the currency therefore, the for, reign currency recovered from him was not liable to be confiscated and this Court while upholding the above view of the High Court, dismissed the appeal filed by the C.B.R. In the matter. In the present case, the petitioner was taken into custody with Pak currency within the territory of Pakistan and with no stretch of imagination, it could be said that he while travelling on the coastal belt, was committing an offence of smuggling of currency. The circumstances under which the petitioner was arrested with Pak currency and the explanation given by him regarding the possession of currency would make the arrest of the petitioner, the seizure of Pak currency and registration of case for keeping in possession Pak currency, illegal. The case of Muhammad Jehangir v. C.B.R. (1999 CLC 939), cited by the learned Deputy Attorney-General is also distinguishable. The passenger in this case, was found in possession of foreign currency in the departure lounge at Karachi Airport which was seized by the Customs Authorities and in consequence to the adjudication proceedings, the currency was confiscated. This order of confiscation of foreign currency passed by the departmental authority and imposition of penalty was maintained by the High Court in a Constitutional petition. The facts of the above-referred case were entirely different as the passenger in the said case was found in possession of prohibited items in the departure lounge at the airport at the stage when he was ready for boarding and if the recovery would not have been effected, the offence of smuggling would be completed whereas in the present case, the petitioner was intercepted when he was travelling on the road leading from Karachi to Quetta in the territory of Pakistan. The High Court in exercise of the Constitutional jurisdiction can go into the reasonableness of the allegation in the interest of justice and the concurrent findings regarding the guilt of the accused arrived at by trial Court and the Appellate Court would not debar the High Court from interfering in the matter if the dictates of justice so demanded. The High Court in the present case without attending the legal position, dismissed the writ petition on the ground that the concurrent finding qua the guilt of petitioner would call no interference.
14. The petitioner has claimed the possession of Pak currency but denied the possession of foreign currency which was recovered from the secret cavities of the vehicle in which petitioner and his companions were travelling. Thus the part of the transaction relating to the recover,/ of foreign currency from the secret cavities of vehicle would constitute an offence under section 156(1)(8) of the Customs Act, 1969 whereas the part relating to the recovery of Pak currency from the possession of petitioner while travelling in the territory of Pakistan would not be an offence under the Customs Act, 1969, therefore, the seizure of Pak currency and registration of case under Customs Act, 1969 to that extent was illegal and consequently, the trial of the petitioner before the Special Judge Customs and also the adjudication proceedings before the departmental authorities would be without jurisdiction and illegal.
15. Learned Deputy Attorney-General has argued that in consequence to the adjudication proceedings conducted under Customs Act, 1969, an order of confiscation of the currency was passed by the Adjudicating Officer which having been not challenged through independent proceedings, has attained finality and despite acquittal of petitioner from the criminal.Charge, the order of confiscation of currency would hold field and the currency is not liable to be refunded and released. This is correct that the order of confiscation of the property in the adjudication proceedings is independent to the verdict given by the Special Court in the criminal case but the seizure of Pac currency itself being illegal and without jurisdiction, the subsequent proceedings either on the criminal side or before the departmental authorities would be without lawful authority.
The order of confiscation of Pak currency passed by the adjudicating authority being a void order, was of no consequence and must be ignored. The facts on the basis of which the order was passed, would not make out a case tor exercise of jurisdiction under Customs Act, 1969 and if is allowed to hold field, it would defeat the dictates of justice and law.
16. In the light of foregoing discussion we convert this petition into appeal and while maintaining the conviction and sentence awarded to the petitioner for the charge under section 156(1)(8) of Customs Act, 1969, for keeping in possession the foreign currency without lawful authority, set aside the conviction and sentence awarded to him for the charge of smuggling of Pak currency and direct that the Pakistan currency recovered from the possession of petitioner and seized under Customs Act, 1969 be immediately released and returned to him in terms of the order dated 28-3- 2002 passed by this Court. This appeal is partly allowed.