Smuggle.--The definition did not exist in the old laws.

For the first time the word "smuggle" has

been defined by the Legislature in the present Act. Prior to the insertion of this definition it was
judicially defined in the case of M/s. Shew Pujan Rai Indrasen Rai Ltd. vs. Collector of Customs
(AIR 1962 Cal. 789=1952 Cr. L. J. 1951) as under:--
"Smuggling is nothing but importation or exportation of goods secretly or clandestinely without
payment of duty".
The clause (s) of Section 2 of the Customs Act, 1969 refers only to goods specified therein and
other goods notified by the Federal Government. It does not refer to goods the importation or
exportation of which is prohibited elsewhere, which situation is governed by clause (9) of
Section 156. If the goods are one not specified in this clause or notified by the Federal
Government under this clause, notwithstanding that its export or import may be prohibited or
restricted by any law, there cannot be any offence of smuggling in respect thereof. This is clear
from clause (9) of Section 156 which makes an offence to import or export goods in violation of
any prohibition or restriction on the importation or exportation of such goods imposed by or
under this Act or any other law. Clause (9) makes it clear that it will not include goods which
come within clause (8) of Section 156 and, therefore, merely because importation or exportation
of goods is prohibited by any law, it will not follow that its importation or exportation will
amount to smuggling in the absence of its inclusion under a Notification by the Federal
Government under sub-clause (ii) of clause (s) of Section 2 of the Act. Clause (8) and (9) of
Section 156 must run parallel for the goods covered by the former are excluded from the latter. If
these clauses are not so read they will be destructive of each other. To give an example, if an
import policy prohibits import of furniture, such import will be in contravention of law and if it
is, as was argued by the learned Additional Advocate General, punishable under clause (8) of
Section 156 it will make its clause (9) redundant. The law clearly contemplates two separate
categories of goods, one clause (s) of Section 2 and the other goods the import or export of
which is prohibited under any other law or for that matter under any other section of the Customs
Act, and the offence of smuggling is limited to the former category. It is further fortified in this
view by the fact that the Federal Government, at a later date deemed it necessary to notify charas
an additional item under the said clause (s) of Section 2. Therefore, the fact that importation and
exportation of charas is prohibited under the Dangerous Drugs Act, 1930 which will be deemed
to be a prohibition or restriction notified under Section 16 of Act, in the absence of inclusion of
charas as one of the items notified under clause (s) of Section 2 then there cannot be any
smuggling of charas though of course it is an offence under clause (9) of Section 156. (PLD 1978
Kar. 774 = PLJ 1978 Cr. C. 580 + Re affirmed in
1980 P. Cr. L. J. 349 = PLD 1979 Kar. 68 and PLD 1981 Quetta 1 + PLD 1980 Kar. 44).
Goods neither covered under clause (i), (ii) nor notified nor brought through unauthorised route
cannot be treated as smuggled (PTCL 1988 CL 429 = 1988 P. Cr. L.J. 435).
The first part of clause (s) of Section 2 of the Act qualifies and controls the categories of goods
listed in sub-clauses (a) and (b). This means that every goods which are brought into Pakistan, or
are taken out of it must be either prohibited or restricted goods or should be so brought in or
taken out for the purposes of evading customs duties or taxes. Either of these two conditions
must be fulfilled by the categories of goods listed in sub-clauses (a) and (b). Sub-clause (a) is
related to the goods mentioned therein or notified separately in an official Gazette whereas sub-
clause (b) (now clause (c)) speaks of the goods imported or exported through unspecified routes.
Such goods may be prohibited or restricted goods and if they are brought through unspecified
routes they became smuggled goods in terms of this sub-clause and so also if they are brought
into such route to evade duty or taxes. (PLD 1981 Quetta 1 = PLJ 1980 Quetta 102).
If notified goods even of Pak-origin are found in the border area it leads to a strong inference that
offence is one of an attempting to smuggle out of country. (PTCL 1988 CL. 74 = 1988 P. Cr. L.J.
449).
An example to the contrary would be goods whose import or export is not prohibited or restricted
say for instance Zamzam water, nor there is any customs duty or tax, leviable on its import. If
such water is brought into Pakistan, through a route not specified under Section 9 or 10 of the
Customs Act, then though such import may be illegal, no smuggling would take place. Thus, it
would be seen that if the conditions laid down in the controlling part are not fulfilled, the act of
smuggling is not committed. Viceversa is also true. In order to be smuggled goods, the goods
qualifying either of the two conditions laid down in the controlling pan have also to fall in one of
the categories listed in sub-clauses (a) and (b) of Section 2 (s). (PLD 1981 Quetta 1 = PLJ 1980
Quetta 102).
Goods imported against Import Licence.--Goods falling under clause (s) if imported against
import licence in violations of Import Policy Order, does not amount to smuggling (PTCL 1984
CL. 7). Misdeclaration of goods according to the description of goods for which licence is
issued, does not save the importer if the goods are actually not of that description but are of the
description as given in clause (s) or notified thereunder.
Goods neither dutiable or taxable nor prohibited or restricted.--If there is neither prohibition
or restriction of import or export and nor evasion of duty or tax the fact that the goods are
originally imported from an-unspecified route does not constitute smuggling. (PTCL 1987 CL.
36).
Banned goods imported in baggage.--Simply bringing of banned goods in baggage upto
customs point does not constitute the offence of smuggling (Position prior to addition of proviso
to Section 156(1) after explanation).
Value of the goods.--Value for the purpose of Section 2(s) and 156(1)(89) means the value
obtaining under Section 25 i.e. CIF value (PTCL 1988 CL. 131).
Change in the definition.--The definition of "smuggle" has been amended by the Finance
Ordinance, 1982. The goods have now been divided into three categories namely (i) Goods of
any value, (ii) Goods of the value exceeding Rs. 5000/-; and any goods including goods at serial
Nos. (i) and (ii) of any value if brought into or taken out through unauthorised routes.
If importer is not liable for smuggling the subsequent possessor of the same goods is also
not liable.--The offence of smuggling as defined in section 2(s) of the Customs Act, can be
committed only if the goods expressly mentioned in Section 2(s) or any other goods notified
therein by the Government or brought into or taken out of Pakistan in breach of prohibition or by
evading of payment of customs duty leviable therein. The offence can only be established if it is
shown that the goods are smuggled goods if the persons who imported the goods is not liable for
smuggling, the person found in possession of those goods cannot be said to be in possession of
the smuggled goods. (PLJ 1981 Cr. C. Kar. 157).
Importation of cars by unapproved routes.--Cars imported by routes other than those declared
under sections 9 or 10 or from any place other than a customs station is smuggled one. Goods
chargeable with duty but such duty is not paid, or importation or exportation of which reasonably
suspected to have been contravened are liable to confiscation. They can be seized under Section
168 (1) of the Customs Act, 1969 by an authorised officer only. (PLD 1977 Lah. 300). Motor car
is not a notified item. No smuggling can take place in the absence of any evidence that the car
has been brought into the country by unspecified route. (PLD 1980 Kar. 44).
Exporting of currency.--Exporting of Pakistani Currency and foreign currency amounts to
smuggling (PTCL 1986 CL. 209= NLR 1985 Cr. 599 = 1986 P. Cr. L.J. 137). (Now export of
foreign currency is not prohibited).
Notified goods under sections 2 (s) and 156 (2).--The goods specified for the purpose of
sections 2(s) and 156(2) of the Customs Act, 1969, are as follows:--
(1) Gold bullion, silver bullion and manufactures of gold and silver.
(2) Platinum, palladium and radium and manufactures thereof.
(3) Precious stones and manufactures thereof.
(4) Imitation jewellery and stones.
(5) Currency.
(6) Antiques.
(7) Narcotic and psychotropic substances.
(8) Alcoholic drinks.
(9) Arms and ammunition.
(10) Foodgrains and food items, all sorts.
(11) Edible oils, all sorts.
(12) Perfumery, cosmetics and toilet preparations.
(13) Cotton, cotton yam and cloth.
(14) Man-made fibres and fabrics.
(15) Wool, woollen yam and woollen fabrics.
(16) Transmission apparatus whether or not incorporating reception apparatus.
(17) Electrical and electro-thermic domestic appliances.
(18) Airconditioners.
(19) Video recording or reproducing apparatus.
(20) Audio cassettes and video cassettes.
(21) Heads of VCRs, VCPs or tape recorders.
(22) Auto-parts.
(23) Spark plugs.
(24) Lead-acid batteries.
(25) Tyres and tubes.
(26) Cigarette lighters.
(27) Cigarettes and cigars.
(28) Tendu leaves.
(29) Betelnuts and betel leaves.
(30) Watches and watch-bands.
(31) Razor blades.
(32) Medicines and pharmaceutical products.
(33) Acetic anhydride.
(34) Vehicles falling under Chapter 87 of the First Schedule excluding non-motorised vehicles.
(For Notification No. S.R.O. 491(1)/85, dated 23rd May, 1985 reported as PTCL 1985 St. 783
(iii) or page
387 of the Customs Rules and Notifications 1998-99 Edition -An allied publication).
Scope of smuggling.--Bare perusal of definition of smuggling 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. (PTCL 1991 CL. 311).
Abetment.--The term "smuggling", also includes "attempt" as well as "abetment" or
"connivance". Taking out of Pakistan a Bank draft in violation of restriction contained in the
Foreign Exchange Regulation Act, 1947 constitute an offence of smuggling. Accused, a foreign
national giving a Bank draft drawn on a foreign Bank to be paid in foreign currency. Accused,
held abetted commission of offence of smuggling in the circumstances and the conviction
awarded by the Special Judge was maintained by the Customs Appellate Tribunal (1981 P. Cr.
L.J. 958).
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 (PTCL 1991 CL. 311).
Who is abettor.--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
(PTCL 1991 CL. 311).
Attempt.--Attempt to smuggle has not been defined in the Act but clause (8) of Section 156
makes the attempt to smuggle also punishable by virtue of the definition of the word "smuggle"
which is inclusive of an attempt to bring in or take out goods coming within the mischief of the
main provisions. The classic analysis of the course of conduct of a culprit from the stage of
conception to consummation of crime has laid down four distinct stages, namely, (i) intention;
(ii) preparation; (iii) attempt; and (iv) completed act. As observed by Sir H.S. Gour, in his
commentary on the Penal Law of India, the first of the aforesaid four stages, the Criminal Codes
of all countries exempt from punishment. The Penal Code of Pakistan punishes the second stage
of certain offences, by constituting them separate and distinct offences.
The third, namely, attempt, marks a distinct advance in the development of criminality, so that it
is punishable everywhere. Ordinarily then, law allows locus poenitentia only up to the second
stage after which it regards the development of the scheme as too far advanced to remain
unpunished. But this has led, as the reports of cases indicate, to an important question as to when
the preparation ends and an attempt begins.
The case in which mere preparation to commit an offence has not been made punishable present
the problem to determine whether the acts or omissions committed by the culprit constitute
merely preparation or amount to attempt. Often times in such cases the transition between what
is preparation and an attempt is so gradual as to be almost imperceptible. The preparation to
commit an offence consists in devising or arranging the means or measures necessary for the
commission of the offence. It implies the taking of previous measures necessary for the crime.
But it is difficult to give an abstract definition of the term "attempt", in juridical context, for it is
largely a mixed question of law and fact depending upon the circumstances of each particular
case.
It seems that the modern view of attempt does not make it necessary that the interruption which
aborts the consummation of the crime should be the penultimate act for the completion of the
crime.
Attempt is defined to mean: "Any overt act immediately connected with the commission of an
offence, and forming part of a series of acts which, if not interrupted or frustrated, would end in
the commission of the actual offence, is, if done with a guilty intent, an attempt to commit the
offence. A person may be guilty of an attempt to commit an offence though that offence could
not in the circumstances, have been committed; but steps on the way to doing something which
is in fact done and which when done, does not, amount to a criminal offence, cannot be regarded
as an attempt.
An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with
an directly tending to the commission of an offence. Merely to make preparations for the
commission of an offence, is distinct from an attempt to commit the offence.
In order to constitute an attempt, there has, therefore, to be some overt act on the part of the
offender which if not frustrated, would lead to the commission of the offence (PTCL 1986 CL
165 = 1986 PSC 800 = NLR 1986 Cr. 484 = PLD 1986 S. C. 192 = PLJ 1986 S. C. 99. + (PTCL
1984 CL 29 = 1984 P. Cr. L.J. 1133 = NLR 1981 Cr. 576 + PTCL 1991 CL. 311).
Accused purchasing ticket for going to a foreign country was checked in at Airline Counter, he
was given the boarding card and the baggage tags and finally he was asked to by the Customs
Officer to make declaration. In his declaration in writing the accused suppressed the information
regarding the currency or Bank draft or precious stones in his possession. Having regard to all
the facts it is clear that but for the interception by the Customs officials the accused had done
every thing in his power to take out of Pakistan the contraband articles as under Section 2(s) the
offence of smuggling also includes an "attempt", "abetment" or "connivance" of bringing in or
taking out of prohibited goods. (1980 P. Cr. L.J. 189+ 1981 P. Cr. L.J. 958).
What constitutes an "attempt" is a mixed question of law and fact, depending largely on the
circumstances of the particular case. "Attempt" defines a precise and exact definition. Broadly
speaking all crimes which consist of the commission of affirmative acts are preceded by some
cover or overt conduct which may be divided into three stages. The first stage exists when the
culprit first entertains the idea or intention to commit an offence. In the second stage, he makes
preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps
to commit the offence. Such overt act or step in order to be "criminal" need not be the
penultimate act towards the commission of the offence. It is sufficient if such act or acts were
deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably
proximate to the consummation of the offence (PTCL 1983 CL 64).
In order to constitute "an attempt", first, there must be an intention to commit a particular
offence, second, some act must have been done which could necessarily have to be done towards
the commission of the offence, and, third, such act must be "proximate" to the intended result.
The measure of proximity is not in relation to time and action but in relation to intention. In other
words, the act must reveal, with reasonable certainty, in conjunction with other as distinguished
from a mere desire or object, to commit the particular offence, though the act by itself may be
merely suggestive or indicative of such intention, but, that it must be, that is, it must be
indicative or suggestive of the intention. In the instant case the fact that the truck was driven up
to a lonely creek from where the silver could be transferred into a sea-faring vessel was
suggestive or indicative though not conclusive, that the accused wanted to export the silver. It
might have been open to the accused to plead that the silver was not to be exported but only to be
transported in the course on intercostal trade. But, the circumstances that all this was done in a
clandestine fashion, at dead of night revealed, with reasonable certainty, the intention of the
accused that the silver was to be exported. (PTCL 1983 CL 64).
Distinction between "preparation" and "attempt".--There is a distinction between
"preparation" and "attempt". Attempt begins where preparation ends (A quotation from (1962) 2
S.C.R. 241 = AIR 1961 S.C. 1998 = PTCL 1983 CL. 64).
Connivance.--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; an 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." (PTCL 1991 CL. 311).
Seizure of goods not falling under clause 2(s).--Goods (cars) neither falling in clause (a) or (b)
of Section 2(s) of the Customs Act, 1969 nor mentioned in Notification issued under Section 2(s)
clause (a), are not liable to seizure for the offence of smuggling or having possession of
smuggled goods. Seizure of such goods held illegal and the action based on illegal seizure of the
goods is also illegal. Notices, if any, issued by the Customs authorities were thus quashed. (PLD
1975 Kar. 482 + PLD 1978 Kar. 774 + PLD 1979 Kar. 68 + PLD 1981 Quetta 1 + 1980 P Cr. L.
J. 186). The goods brought into or taken out of Pakistan, in breach of any prohibition or
restriction for the time being in force or evading payment of customs duty or taxes leviable
thereon can however be seized for the contravention of the provisions of the Customs Act, 1969
as contained in Section 156(1) clauses (9) or (90). (1980 SCMR 114).
When at the relevant time an item is not notified the provisions of smuggling are not attracted
and conviction cannot be based on such goods. (PTCL 1986 CL. 156).
Foreign Exchange Bearer Certificates.--There is no prohibition in importing and exporting the
Foreign Exchange Bearer Certificates. (See the Foreign Exchange Bearer Certificate Rules, 1985
reported as PTCL 1985 St. 935 (937).
Currency Regulations.--See Notes under Section 16 of the Act.