Since common questions of facts and law have been raised, both these petitions are disposed of by this judgment.
2. Briefly stated these petitions have arisen under the following circum--stances.
3. On 16th March, 1966 the Officers of the Customs Department seized a Truck No. KAD-2923 loaded with 82 bundles of silver weighing 58 maunds 30 seers near sea shore between the villages of Rohri and Lath in presence of two mashirs. In pursuance of credible information the Officers of the Customs Department kept a watch of a house in Nazimabad, Karachi belonging to Shaikh Rehmat A.I. The Customs Officers found that the silver was loaded in the truck from the said house which was occupied by Shaikh Rehmat A.I and his son Sheikh Sulan A.I. The truck then moved away changing its routes at different points crossing Nazimabad, Federal `B' Area etc., and moved on Katcha truck towards Country Club Road, Karachi and finally it reached village Rohri and moved further on to Lath where it was intercepted and seized with well packed and marked bundles containing silver.
4. After enquiries from the said Customs officials and the other witnesses including the two mashirs a notice was issued to Sheikh Rahmat A.I, Sheikh Sultan A.I, Driver Nawaz A.I, and cleaner Azeem Mohammad to show cause why action under sections 167 (81) and 167 (8-B) and 168 against Nawaz A.I and Azeem Mohammad) be not taken against them. Shaikh Rehmat A.I and his son Shaikh Sultan A.I submitted a joint reply on 19th May, 1966 wherein they stated that they had purchased this silver on behalf of one A. H. Malik who had placed the order with them for supply of 60 maunds of silver and that Sheikh Rehmat A.I acted merely in the capacity of a Broker for A. H.
Malik. On the same date another reply to the same show-cause notice was submitted jointly by Shaikh Rehmat A.I and Mr. A. H. Malik wherein it was stated that Mr. A. H. Malik was also a party as he had an interest in the property. It was further stated herein that the silver procured by Shaikh Rehmat A.I from various parties and that as and when the procurement was done the information was passed on to Mr. A. H. Malik who issued a debit vouchers in favour of Mr. Shaikh Rehmat A.I. The debit vouchers in original were produced by them alongwith this reply.
5. The case of the petitioners Shaikh Rahmat A.I and his son Shaikh Sultan A.I was that they were neither the owners of the silver nor had they exported and/or attempted to export it out of Pakistan.
They had stored the silver in their house as there was no space available in the shop owned by them and that on that day they had put the silver in the truck for being taken to Mr. A. H. Malik's office in the Wood Street, Karachi, through driver Nawaz A.I against a receipt duly signed by Mr. A. H.
Malik. Both these petitioners alleged that the truck was seized at First Chowrangi of Nazimabad, Karachi soon after it had left their house. They denied that the truck was seized near seashore as alleged by the Custom official,
6. Mr. A. H. Malik claimed that he had placed the order, with Shaikh Rahmat A.I for the purchase of the silver and further stated that he had obtained an order from Messrs National Zari Industries for supply of two lacs tolas of silver and that for that purpose he approached Shaikh Rehmat A.I. After the procurement was done, 16th March, 1966 was fixed for delivery. On that date Shaikh Rehmat A.I asked his son Shaikh Sultan A.I to hire a truck for transferring the silver up to his office in Wood Street, Karachi but it was seized in Nazimabad soon after it had left their house.
7. The Collector of Customs heard the parties and after considering the various submissions made by them came to the conclusion that Mr. A. H. Malik was not the owner of the silver and that he had stepped in as a sub--terfuge for some smugglers. He further found that the letters purported to have been written on behalf of Messrs National Zari Industries were fake and so were the debit vouchers. Upon enquiries made by him from Messrs National Zari Industries it was found that no such order for purchase of silver was placed with Mr. A. H. Malik by them. They stated that the alleged letters were absolutely bogus and fictitious and that on account of issuance of these letters without their knowledge the services of their then Accountant Mr. M. Salahuddin were terminated. He further found that the silver was seized near the seashore in a creek where the country crafts ply and that it was taken there for the purposes of being smuggled out of the country. The Collector of Customs therefore, confiscated the silver and the truck. He also imposed a personal penalty of Rs. 1,00,000 upon Shaikh Rahmat A.I, Rs. 50.000 upon Shaikh Sultan A.I, Rs.
40,000 upon driver Nawaz A.I and Rs. 20,000 upon cleaner Azeem Mohammad.
8. Being aggrieved with this order all the three petitioners filed an appeal before the Central Board of Revenue which was dismissed by an order dated 24th November, 1963. A revision petition filed by them before the Government of Pakistan also met the same fate. This order was passed on 30th November, 1970.
9. It was under these circumstances that the petitioners Shaikh Rahmat A.I and his son Shaikh Sultan A.I filed Constitutional Petition No. 621 of 1970 and Mr. A. H. Malik filed Constitutional Petition No. 39 of 1971 wherein they prayed that the orders impugned herein be declared as having been passed without lawful authority. Mr. A. H. Malik further prayed for declaration, that the seized silver is his property and that the respondents be directed to restore the same to him.
10. We have heard Messrs Z. C. Valiani, and Mr. S. M. Raza, learned counsel for the petitioners and Mr. K. A. Ghani learned counsel for the respondents.
11. Mr. Z. C. Valiani, learned counsel for the petitioners Shaikh Rahmat A.I and Shaikh Sultan A.I in Petition No. 621 of 1970 raised the following contentions:- Q) All the official respondents misread the evidence on record and arrived at conclusion as a result of such misreading, which were not warranted by documents and facts on record ;
(if) All the official respondents misinterpreted the relevant provisions of section 167 of the Sea Customs Act by holding the alleged seizure as an attempt to smuggle the silver in question and that the impugned orders were liable to be quashed on this ground alone.
12. As regards the first contention, we find that a thorough enquiry was made in this case. Besides the officials of Customs Department, other witnesses including the two mashirs in whose presence the truck carrying the silver was seized, were examined. The evidence of the mashirs was found to be all along consistent, and it was believed by the Collector of Customs and the other official respondents. The petitioners were given an adequate oppor--tunity to cross-examine these witnesses but as found by the official respondents, apart from minor discrepancies their testimony was not shaken. The defence witnesses produced by the petitioners were not believed by the official respon--dents. We find that not only the Collector of Customs, but the other two official respondents before whom appeal and revision was filed, gave detailed reasons for not accepting the plea put forward by the petitioners. The learned counsel for the petitioners, has not been able to point out to us, as to how evidence was misread in this case. All that he stressed was that the truck was in fact seized in Nazimabad and not near the seashore as alleged by the prosecution witnesses. He wanted us to disbelieve the testimony of prosecu--petition witnesses and believe that of the defence witnesses who deposed that the truck was seized in Nazimabad. We are afraid, this cannot be done. We cannot appreciate evidence adduced by both the sides, while exercising extraordinary jurisdiction under the Constitution. Under these circumstances we are not inclined to disturb the findings of fact arrived at by the official respondents.
13. The learned counsel for the petitioners then submitted that even if it be assumed for the sake of arguments that the truck was seized at the place alleged by the customs officials, yet, the provisions of section 167(8) of the Sea Customs Act would not be attracted. - He submitted that the truck in question was admittedly 150 miles away from land border and there. Was no sailing boat anywhere near the alleged place of seizure to smuggle the silver out of Pakistan. Thus it did not constitute an "attempt" to export silver contemplated by Item 8 of Schedule to section 167 of the said Act. He further submitted that petitioners Shaikh Rahmat A.I and Shaikh Sultan A.I could not be.
Held liable for attempt to smuggle the said silver as none of them was either arrested at the place of seizure of the truck or was present anywhere near about it. In other words, it was submitted that none of these two petitioners was concerned in any such offence and that they were accordingly entitled to have the order imposing penalty upon them quashed.
14. Now, item 8 of the Schedule to section 167 of the Sea Customs Act so far as it is material here, reads as follows :- "If any goods, the importation or exportation of which is for the time being prohibited or restricted be imported into or exported from Pakistan contrary to such prohibition or restriction, or If any attempt be made so to import or export any such goods such goods shall be liable to confiscation ; any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods."
15. We are not concerned here with the import of any silver but only with its export.
16. In this case the silver was taken to a solitary place on seashore from where it was to be transferred to a launch, for carrying it out of country. 6 There was no point in taking the silver to this place, if it was not meant to be exported. The silver was brought to seashore at a place where country crafts ply and had the truck not been intercepted and seized, the silver would have been exported to a destination outside Pakistan. Here absence of a boat near about the place of seizure at the time of actual seizure, is therefore immaterial. Thus an attempt was made to export silver out of country.
17. Then whether a person is or is not concerned if an offence coming, under item 8 (b) of section 167 depends upon the facts and circumstances of each case. Direct evidence as to actual unauthorised exportation or attempt made therefor may be available in rare cases. Where such direct evidence is available no difficulty arises as to who are the persons concerned in the offence.
Where however direct evidence is not available the persons concerned in the offence are to be ascertained having regard to the facts and attending circumstances of each case.
18. Before a person can be proceeded against under section 167 (8) and a personal penalty imposed upon him for being concerned in the commission of the offence of importation or exportation it is essential to prove that he) did not take some part in the series of steps which culminated in the contra--band goods being brought to the country or exported therefrom. It may, ,,I well be that a person without coming into physical contact with contraband goods, may yet be held liable for having been concerned in its importation' or exportation.
19. It was held in AIR 1962 Cal. 342 that "The ordinary accepta--petition of the word `concerned in' is well known. If any one is interested or consciously takes any step whatever to promote the object of illegally bringing bullion into the country, then, even if no physical connection is established between him and the thing brought still he will be guilty. The words `concerned in' appear to have been deliberately used by the Legislature for the purpose of punishing every one who may have anything to do in the process or operation, which proceeds the bringing in of prohibited goods into this country."
20. In this case, there was direct evidence to the effect that silver was loaded in the truck from the home of these two petitioners and it was brought to Lath near seashore where it was intercepted.
Even the petitioners admitted having loaded the silver in the truck. They however denied that it was taken to seashore and/or that it was actually seized neat `Lath'. They claimed that the truck was seized in Nazimabad and that it was being taken to the office of A. H. Malik situated in Wood Street, Karachi. The version of the petitioners, as already stated hereinabove, was disbelieved by the official respondents. We are therefore of the view that both the peti--tioners Shaikh Rahmat A.I and Shaikh Sultan A.I were concerned in the offence of attempt to export silver out of Pakistan and there is no justification for interfering with the order imposing penalty upon them.
21. Mr. S. M. Raza, the learned counsel for petitioner in Petition No. 39 of 1971 adopted the arguments advanced by Mr. Valiani and further submitted that the evidence adduced b,- his client A. H. Malik was ignored. We, however, find that this petitioner was also given adequate opportunity to lead evidence. The evidence produced by him was thoroughly examined and disc, . Jed for valid reasons. Although the silver was seized on 16-3-1959 but Mr. Malik figured for the first time with a claims as . Owner thereof on 19-5-1959. It is said that his office is situated near the Custom House. It is indeed surprising that he did not come forward with his claim for nearly over two months although the quantity of silver was quite huge valued at over Rs. 7 lacs. The official respondents were therefore right in taking the view that Mr. A. H. Malik was not the owner of the seized silver.
22. In view of the foregoing reasons, both the petitions fail and the same are dismissed with costs.