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Petitioner: BARKAT ALI Alias NIKKA AND Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: BARKAT ALI Alias NIKKA AND Others vs THE STATE Case No.: Criminal Appeal No. 648 of 1967 Date of Judgment:1969-07-05 Reported As: 1970 P Cr. L J 136 Result: Appeal dismissed
JUDGMENT
JUDGMENT In a case of smuggling, Ch. Nazir Ahmad, Magistrate section 30, Kasur convicted and sentenced 11 persons, vide his judgment, dated 2 September 1967. Another accused person named Ghulam Rasul absconded after the conclusion of the evidence but before the arguments in the case. He, however, was apprehended soon thereafter. The same learned Magistrate convicted him by a separate judgement, dated 19 September 1967. Three separate appeals have been filed by the 12 convicts. Musta, Nur Muhammad, Shingara Singh, Shabbeg Singh, Kartar Singh and Balbir Singh are appellants in Criminal Appeal No. 633 of 1967 and challenge their conviction and sentence of five years' R. I. Each under section 167 (8) of the Sea Customs Act. In the same appeal, Barkat Ali and Umar Din have challenged their conviction and sentence of one year's R.I. Each under section 9 of the Opium Act, to run consecutively with the sentences under section 167 (8) of the Sea Customs Act. In Criminal Appeal No. 668 of 1967, Ghulam Rasul has challenged his conviction and sentence of five years' R. I. Under section 167 (8) of Sea Customs Act. As all the three appeals arise out of the same case and same evidence, therefore, they are being disposed of together by this judgment. 2. Briefly stated, the facts are that in the evening of 18 March 1966, the S. H. O. Of Ganda Singhwala Police Station organised a raid party consisting of some men from the police force, some from the Rangers headed by a Sub-Inspector and three other persons from the surrounding locality. The purpose was to arrange a nakabandi at a place about three furlongs from the Indian border on the way from a village named Bhikiwind which is at a distance of about a mile from that place. This raid party was headed by a D. S. P. Of Police. At about 7.30 p.m., 12 persons who were subsequently tried as the accused persons in this case were seen coming from the side of village Bhikiwind. Each one of them was carrying a bundle on his head. When they reached near the place of nakabandind th th
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they were encircled by the raid party. Barkat Ali appellant was leading. He shouted 'the following expression of surprise and fear;- "Umar Din we have been caught". ' Umar Din is another appellant who was at the rear end of the accused party. He threw his bundle and ran away. But before he could effect his escape, he was identified by Allah Bakhsh (P. W. 5) and Qaim Din (not produced) in the torch light which was thrown at the run away accused by one of the police party. The remaining accused appellants were; arrested at the spot. From the bundle carried by Barkat Ali appellant, 18 seers of non-excise opium was recovered while the bundle thrown away by Umar Din appellant contained another weight of 18 seers of the same commodity. All the other ten accused appellants were found to be carrying about one maund of cinnamon each. All the 12 bundles were taken into possession in due course, ride various recovery memo. The details of which need not be given here. Two samples of opium were taken out from each one of the two opium bundle mentioned above. On chemical analysis, that commodity has been proved to be non-excise opium. At the trial, seven witnesses were examined by the prosecution. Two of them are formal. Bakhsha (P. W. 3) and Allah Bakhsh (P. W. 5) are non-official witnesses of the raid, nakabandi and the recoveries from the appellants. Muhammad Baqar Khan, A. S. I. (P. W. 4) was produced for cross- exami--nation but the defence declined to cross-examine him. S. I. Ch. Bashir Ahmad (P. W. 6) was in charge of the raid party, of course under the supervision of a D. S. P., and Haji Parvez Ahmad (P. W. 7) is the Sub-Inspector Rangers, Commander of B. Company, with headquarters at Ganda Singhwala. The eye--witness account fully implicates all the appellants and is consistent with the prosecution version. The various defence pleas taken by the appellants at the trial are as follows:- Umar Din simply denied the occurrence and the recovery and said that the case against him was false. He, however, produced two defence witnesses to show that the recovery of all the bundles took place from the Dari of village Bhikiwind; and that after a talk of about 15 minutes by the son of Dari with the Sub-Inspector of Police, all the Muslim accused persons, were called and arrested by the police. The Sikh accused persons were not present then, but were subsequently brought in the village by the Rangers. None of the other appellants produced any defence. Barkat Ali, Noor Mohammad, Ahmad Din and Musta appellants simply denied the allegations and said that they were innocent and the case was false. They did not give any other explanation for implication in the case. Nabi Bakhsh, Ghulam Rasul and Inayat appellants, however, apart from pleading general denial, also suggested that they have been involved in a false case due to enmity with Dart. One of them, i.e., Inayat appellant, pleaded that the recovered property belonged to Dari. All the four non- muslim accused belonging to various villages in the Saddar Police Station of Ferozepur (India) pleaded general denial and further that they had entered the Pakistan territory under a mistaken belief that the area, they were in was still with India after the Indo-Pakistan War. And that they were arrested by the Pakistan Rangers at Annoki Post which post was occupied by India during War but was reoccupied by Pakistan before this occurrence. This set of accused persons, however, did not produce any defence. It may be mentioned here that all the four accused persons in this set were also convicted under section 4 of the Pakistan Control of Entry Act, 1952, in respect of their entry in the territory of Pakistan, in a separate trial. 3. The learned Magistrate believed the entire prosecution evidence and convicted and sentenced appellants as stated above. The learned trial Magistrate has dealt with about half a dozen discrepancies and contradictions in the prosecution evidence pointed out by the defence in the arguments before him. The learned counsel appearing in support of these three appeals did not consider it necessary to read the evidence before me, probably because they thought that they would not gain any point from the statements made by the witnesses. I, however, in order to satisfy
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myself, have gone through the entire evidence and the statements made by the accused persons and have also seen the other document proved during the trial. I find nothing which could be treated as an error committed by the learned Magistrate, in so far as the appreciation of the evidence is concerned. Therefore, in so far as the findings on the factual side are concerned, the reasons given by the learned Magistrate in support thereof are unexceptionable. 4. Ch. Abdul Haq, the learned counsel for the appellants, (in Criminal Appeals Nos. 648 and 668 of 1967) has, however, pointed out some features of the case which, he thought, were improbabilities and that, therefore, the prosecution case was a concoction. He argued that it was unbelievable that all the accused persons should proceed from village Bhikiwind to the Indian border in a single line at about 7-30 p.m. Because they could have realised that, in this way, detection was possible I was also pointed out that there is a check post Rangers in village Bhikiwind. It was month of March and according to the witnesses, at the time of actual raid the darkness had set in. Therefore, keeping in view the peculiar needs o people, who indulge in the act of smuggling, to say that the would not in any case, have selected that time for transferring the goods across the border, will just be a surmise and cannot be s4pported by any cogent reason. It is true. That P. W. 7 has admitted that there is a Rangers Post in village Bhikiwind itself, but he has also stated that the person/persons manning that post were not informed about the raid and nakabandi operations. Therefore, there is nothing impossible in the accused persons sneaking out of the village in groups of threes or fours and, at the same time, taking care not to be detected by the Rangers in the Post who might be busy, at that time, in their usual evening activities including taking of meals. Moreover, it is not the prosecution case that all the accused persons, in fact were coming from village Bhikiwind. The prosecution case is that they were caught red-handed at the place of nakabandi. In this very connection, the learned counsel also pointed out that the prosecution version that all the accused persons were coming in a single lines makes the story all the more improbable, because the criminals would not behave in that manner. The learned counsel has not correctly read the evidence. It is true that one witness stated that all the accused persons were coming in a line, but, another witness said that they divided themselves into groups of threes and fours. Both the statements can be consistent as the. Accused persons could remain in groups of threes and fours and still be only one deep in a single line. This method of crossing an inter--national border appears, to me, to be most practical and safe. The defence version of, at least, some of the appellants also cuts at the argument raised by the learned counsel. According to them the recoveries took place from village Bhikiwind from Dari smuggler. It is also in the defence plea that there are two factions in Bhikiwindi village, one of the Muslim accused persons and the other of said Dari. If their version of the story is to be believed, even then a smuggler of Bhikiwind was keeping this almost a cart load of to be smuggled goods in the same village where there is a Rangers Post. Therefore, to say that the existence of a Rangers Post is a sure answer to any activity as to smuggling in a village, is not a sound argument. I may also mention here that there was no reason for a police-cum---rangers raiding force of about two dozen persons manned by, at least, four officers and supervised by a D. S. P., to have allowed Dari and his son, the allegedly real culprits, to go scot-free and to falsely implicate all the Pakistani, accused persons alongwith four Sikh accused persons who had, admittedly, nothing to do with said Dari smuggler. It has already been mentioned that the defence with regard to recovery from Dari has not been raised by many Pakistani accused persons, in their statements under section 342, Cr. P. C. 5. The learned counsel next contended that it was a dark night and the identification of Umar Din appellant was not possible. There are four items of evidence of identification against Umar Din, namely--- (i) shouting the name of Umar Din by Barkat Ali appellant at the time of raid.
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(ii) throwing the torch light by a police officer at the run--away culprit. There being a torch with some police officer is not, at all, improbable and throwing of light at a running _ culprit is also not improbable. In fact, it was quite natural. (iii) the identification of Umar Din, in that light, by Qaim j Din (not produced) and Allah Bakhsh (P. W. 5). Both these persons knew Umar Din appellant, and if the torch light was thrown at Umar Din it was quite possible that he might have been identified by the said witnesses. The statement of Allah Bakhsh has been believed by the trial Magistrate and so have the statements of police and ranger officers been believed. This shows that the said two persons. Did, in fact, identify Umar Din at the time of the raid and did inform the police officers about this identification soon after the raid. Therefore, their statements being relevant, in respect of the identity of Umar Din and having been believed, there is nothing in law which could be said as being against the adoption of that course, at the trial. (iv) All the facts mentioned in the above three items of evidence were stated by Ch. Bashir Ahmad, S. H. O., in the report Exh. P. A. Which was prepared at 1000 p.m. On the same day, of course after weighing whole of the quantity of the opium and cinnamon contained in all the bundles. This report was formally registered as F. I. R. (Exh. P. A./1) at 11-30 p.m. At the police station. The contents of the F. I. R., are, therefore, in corroboration of, at least, what was stated by the S. H. O. At the trial. The above evidence, to my mind, is sufficient to prove the identity of Umar Din as being the person who accompanied all the appellants at the time of raid and that he was carrying a bundle of non- excise opium. I The learned counsel, in this connection, also referred to the fact that Qaim Din, one of the persons who identified Umar Din, has not been produced. There is nothing wrong in it. Allah Bakhsh, one of the two persons, has been produced, and it has been stated by the P. Ws. That Qaim Din also in fact identified the appellant. The conduct of Qaim Din identification, at and soon after the raid, is relevant under section 6 of Evidence Act and the same having been proved by other witnesses, his non-produc--tion as a witness was not such a circumstance so as to become fatal to the case. Therefore, I find no force in this contention either. No other point was urged in so far as the facts and the conviction on merits of the case is concerned. Some arguments were raised in respect of sentence which I will deal within the last part of the judgment. 6. The learned counsel also raised the following legal contentions:- (i) thattheoffence committed by the appellants was under section 5 of the Import and Exports (Control Act, 1950; therefore, no Court could take cognizance thereof without a complaint bya Customs Collector or any officer of Customs authorised in writing in this behalf by him, as provided in section 6 of the said Act. The report under section 173, Cr. P. C. In this case was submitted by Ch. Bashir Ahmad, S. H. O. Ganda Singhwala Police Station. Therefore, accord--ing to the learned counsel, the learned Magistrate could not take cognizance of the offence. (ii) that the offence committed by the appellant, though punished by the learned Magistrate under Sea Customs Act of 1878, falls under the Land Customs Act. 1924; and because the punishment provided in section 7(3) of the Land Customs Act is only six months R. I. Or fine up to Rs. 1000 or both together with confiscation of the goods, therefore the appellants could not be sentenced to six years' R. I. Which is provided only under section 167(8) of the Sea Customs Act. In this connection, the learned counsel argued that the addition of the words "and the trial of offences" in sub-- section (1) of section 9 of the Land Customs Act which enacted certain provisions of the Sea Customs Act by reference, was only in respect of the trial and not with regard to the punishment which, according to the learned counsel, does not form part of the trial. (iii) that though Ch. Nazir Ahmad, the learned Magistrate who convicted and sentenced the appellants, was a section 30 Magistrate and was, under the Criminal Procedure. Code, empowered to award a sentence of more than two year's R. I., yet he was not specially empowered by the
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Provincial Government, under section 193-B of Sea Customs Act, to award a sentence of more than two years; therefore, the trial held by the learned Magistrate is illegal and in any case, the sentence, passed by him of more than two years' R. I. Is a nullity. 7. Before dealing with the contentions of the learned counsel it may be mentioned that on my specific question, as to whether there was any objection in respect of the- prohibition of export of cinnamon from Pakistan, the learned counsel first stated that the offence was only technically proved, provided a notification was produced; but he immediately then said that the prohibition must be there and that this matter need not be taken note of by me. However, I called upon the learned counsel for the State who was assisted by a learned counsel representing the Customs Department, to show me the relevant notification. It is admitted that- cinnamon is not produced in Pakistan and is an imported item. Notification No. S. R. O. II, dated 15th January 1959, issued by the Ministry of Commerce, Government of Pakistan under subsection (1) of section 3 of Imports and Exports (Control) Act, 1950, prohibited. The export to any place outside Pakistan of any goods of the description specified in the Schedule annexed thereto. Item No. 1 in the Schedule is "All imported goods in their original or unprocessed forms". Similarly, a notification issued under the same provision and printed at page 359 of the Pakistan Customs Manual, complied under the provisions of section 204 of the Sea Customs Act, by the Central Board of Revenue (1956 Edition) shows that the Government has prohibited the import by sea, land or air from any country outside Pakistan ,of any goods of the description specified in the' Schedule annexed / thereto. At item No. 26 of Group P-6 at page 373 of the same Manual "spices, all sorts, not otherwise specified" are mentioned as such goods. Admittedly, cinnamon is included in spices and its import being prohibited, its export is also prohibited by virtue of the notification mentioned earlier. Subsection (3) of section 3 of the Imports and Exports (Control) Act, 4'950, provides that all goods to which an order under subsection (1) of section 3 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, and all the provisions of that Act shall have effect accordingly, except section 183 thereof which will apply with substitution of the word "may" for the word "shall" used therein. Section 183 of the Sea Customs Act is not relevant for the present discussion. The effect of the above mentioned provisions and the orders/notifications is that if any person exports or attempts to export any goods, the export of which is for the time being prohibited or restricted by or under the Sea Customs Act, of course read with section 3(3) of the Imports and Exports (Control) Act, 1950, he commits an offence defined in section 167 item (8) of the Sea Customs Act which is punishable with six years' imprisonment and to a fine not exceeding five times the value of the goods, and in addition shall also be liable, if the Magistrate in his discretion so orders, to the punishment of whipping. The cinnamon being a commodity within the above mentioned prohibition, its export or attempt therefore is an offence under section 167(8) of the Sea Customs Act. With regard to the opium as well, it may be mentioned that it is a dangerous drug as defined in section 2(h) of the Dangerous Drugs, Act, 1930. Section 7 of the same Act prohibits the export from Pakistan of any dangerous drug, of course in a form other than `prepared opium' and save-in accordance with rules made under subsection (2) of section 7 and with the conditions of any licence for that purpose. Section 38 of the same Act provides that all prohibitions and restrictions imposed by or under the said Act, on the import into or export from Pakistan, shall be deemed to be a prohibition and restriction imposed under section 19 of the Sea Customs Act. Therefore, the non-excise opium which was recovered from Barkat Ali and of the Umar Din appellants also falls within the mischief of the offence defined in section 167(8) of the Sea Customs Act. The result of the above analysis of the various provisions, in brief, is that all the appellants were correctly charged of having committed an offence under section 167(8 of the Sea Customs, Act. I
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will now proceed to examine the arguments raised by the learned counsel, in the light of the above finding with regard to the offence committed. 8. The first two contentions raised by the learned counsel mentioned in paragraph 6 of this judgment, can be considered together. Tamjid Ali and others v. The State (1969 P Cr. L J 324) was cited in support of the contention that a Magistrate could take cognizance of an offence punishable under section 5 of Imports and Exports (Control) Act, 1950, and section 167(8) of the Sea Customs Act, on the report of the police or East Pakistan Rangers, and that the report must be of a Customs Collector or any officer authorised by him in this behalf. Additional Advocate --General v. Hamtho (1968 P Cr. L J 886) was cited in support of the contention that the words "and the trial of offences" in section 9 of the Land Customs Act did not include the punitive provisions (as to sentence) of Sea Customs. Though the contention raised by the learned counsel in this case was not the matter being dealt with in that case, yet the learned counsel sought to take support from the observations made at page 888 of the report. It is pointed out, with respect, that it appears that a ruling by their Lordships of the Supreme Court on the precise questions, cited by the learned counsel for the State before me, was not brought to the notice of the learned Judges who decided the above mentioned two cases. It is Noor Hussain v. The State (PLD 1966 SC 89). The appellant in the case before their Lordships of the Supreme Court was convicted and sentenced to two years' R. I. Under section 167(8) of the Sea Customs Act for having imported into Pakistan 30 seers of cardamon, in contravention of the prohibition contained in the Sea Customs Act. Leave was granted to consider the following two questions:- "(1) Whether the complaint was itself competent by reason of the fact that it had not been made by Customs Collector or an officer of the Customs Department duly authorised in that behalf?, and (2) Whether the Magistrate, who tried the case, had jurisdiction to try the offence which at the relevant time was punishable with a maximum sentence of 10 year's rigorous imprisonment and, as such, triable only by a Sessions Court or by a Magistrate exercising powers under section 30 of the Code of Criminal Procedure." The argument raised before their Lordships with regard to point noted at No. (l) above was that the Sea Customs Act was not applicable to the case and the appellant was wrongly convicted under section 167 (8) thereof and that the offence was under Imports and Exports (Control) Act, 1950, or. The Land Customs Act, 1920. Their Lordships observed as follows:- "It is admitted in the present case that there was a notification under subsection (1) of section 3 of the Imports and Exports (Control) Act prohibiting the import and export of spices save upon a licence issued in that behalf. In terms of subsection (3) of section 3 of the Imports and Exports (Control) Act. This notification was to be deemed to be also a notification under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act applied except for those of section 183 thereof. The contention, therefore, that the offence committed by the appellant could not come within mischief of the Sea Customs Act is without any substance, for the notification under the Imports and Exports (Control)Act made the provisions of the Sea Customs Act applicable, as- it was also to be deemed to be a notification under section 19of the Sea Customs Act.' The above observation was with regard to the argument raised on the- basis of the provisions of the Imports and Exports (Control) Act, 1950. With regard to the argument raised on the basis of the provisions of the Land Customs Act, their Lordships observed, at page 93 of the report as follows: "The argument that ' an offence under the Land Customs Act could only be taken cognizance of on the complaint of a Land Customs Officer and not a police officer is wholly irrelevant, for, the prosecution in the present case was under the Sea Customs Act and not under the Land Customs Act." The ratio decidendi, as it appears from the above quoted observations, is that even if the act done in the case before their Lordships was an offence under section 5 of the Imports and Exports
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(Control) Act, 1950, or one under the Land Customs Act, 1.924, this would not deprive the State of prosecuting the offender under the Sea Customs Act, 1878, if the same act did not fall within the definition of an offence under the latter Act. And if the State prosecutes the offender under the latter Act only, procedures or other considerations with regard to the prosecutions under the former two Acts would be wholly irrelevant. Therefore, the contentions of the learned counsel based on the fact that, no complaint was lodged under section 6 of Imports and Exports (Control) Act, 1950, or the lesser punishment provided in an offence under the Land Customs Act, are not relevant…
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