1989 CLC 1880

MASOOD AHMAD Versus ISLAMIC REPUBLIC OF PAKISTAN

Citation1989 CLC 1880

CourtSindh High Court

Judge(s)Saeeduzzaman Siddiqui and Abdul Rasool Agha

1. SAEEDUZZAMAN SIDDIQUI, J. ‑‑The petitioner has challenged the orders passed by respondents Nos.2 to 4 dated 16‑2‑1983, 9‑9‑1982 and 3‑5‑1977 respectively in this .petition. The facts of the case in brief are as follows:

2. The petitioner while about to board a Dubai bound PIA flight No.PK 217 in the night of 5/6 July, 1976 was intercepted by one Syed Nasiruddin Haider, an Intelligence Officer in the Directorate of Customs investigation at Karachi Airport. It is claimed by the respondents that upon search of the baggage belonging to petitioner gold ornaments and Pak. currency worth Rs.5 lacs and Rs.l lac respectively were recovered. It is an admitted position that the petitioner was tried before the Special Judge, Customs, Karachi, and upon conviction he was sentenced to R.I. for one year and a fine of Rs.50,000 and in default of payment of fine to suffer further R.I. for one year, under section 156(1)(8) of the Customs Act. However, on appeal before the Special Appellate Court (Customs), the order of the Special Judge (Customs;, convicting the petitioner was set aside and the petitioner was acquitted in the case. It appears that while the prosecution of petitioner was going on before the Special Court (Customs) as aforesaid, the petitioner was also served with a show‑cause notice by respondent No.4 dated 5‑11‑1976 under section 168 of the Customs Act. The petitioner contested the above notice but respondent No.4 by order dated 3‑5‑1977 ordered confiscation of the jewellery and currency allegedly recovered from the possession of the petitioner at the time of search of his baggage at Karachi Airport, in addition to a personal penalty of Rs.25,000. The petitioner preferred an appeal against the above order of respondent No.4 before respondent No.3 but his appeal was dismissed on 9‑9‑1982. The petitioner finally filed a Revision Petition before respondent No.2 which too was dismissed on 16‑2‑1983. The petitioner has challenged the above orders of respondents Nos.2 to 4 in this petition.

3. Mr. Sharaf Faridi, the learned counsel for the petitioner has raised the following contentions in support of above petition. It is firstly contended by the learned counsel that the whole proceedings were vitiated by reason of non‑compliance of the provisions of section 171 of the Customs Act. It is urged by the learned counsel that at no stage of proceedings the petitioner was served with any notice as contemplated under section 171 of the Customs Act and, therefore, the subsequent proceedings taken by the respondents were wholly without jurisdiction. Reliance is placed in support of the above contention by the learned counsel on the cases of Azizullah v . The State PLD 1981 Karachi 250, Alim Khan v. Government of Pakistan 1983 CLC 786. The second contention of the learned counsel for the petitioner is that notice dated 5th November, 1976 served on the petitioner was in connection with adjudication proceedings under section 180 of the Customs Act which could be issued to the petitioner within two months of the seizure of the goods. It is accordingly contended that the seizure of the goods having taken place on 5/6 July, 1976 the notice dated 5th November, 1976 issued to petitioner was wholly without jurisdiction. It is also contended by the learned counsel that there is nothing on record to show that the period of two months prescribed under subsection (2) of section 168 of Customs Act was extended by the competent officer as provided in the proviso to this subsection. The last contention of the learned counsel for the petitioner is that the petitioner having been acquitted by the Special Appellate Court the goods allegedly recovered from him at the time of his arrest could not be legally confiscated under section 180 of the Customs Act. In support of his last contention the learned counsel relied on two unreported judgments of this Court in the case of Iqbal Hassan v. Collector of Customs C.P. No. D‑146 of 1975 decided on 6‑2‑1976, and Muhammad Umer Sooni v. Government of Pakistan (C.P. No. D‑864 of 1978) decided on 10‑10‑1979. After hearing the learned counsel for the petitioner at length we are of the view that this petition can be disposed of on the basis of last contention raised by the learned counsel for the petitioner in the above case. In the first referred case of Iqbal Hussain, gold was allegedly recovered from the possession of petitioner in that case which was confiscated by the Collector of Customs by his order dated 8th May, 1969. The petitioner in that case alongwith others was prosecuted under section 167(81) read with section 212 of the Sea Customs Act before the Special Court (Customs). Out of the accused persons one Mehdi Hassan was acquitted by the Special Court while the petitioner and others were convicted and sentenced to 5 years R.I. The petitioner and the other convicted person filed appeals before the High Court which were allowed and their sentences and convictions were set aside and they were acquitted in the case. While the above proceedings were going on before the Special Court and High Court the petitioner appealed against the order of confiscation of gold recovered from him which was dismissed by the Central Board of Revenue on 30th August, 1972. A further revision filed by the petitioner before the Federal Government also failed as the same was dismissed on 7‑2‑1975. The petitioner finally filed Petition No.146 of 1975 in this Court impugning the orders passed by the Collector of Customs, Board of Revenue and Federal Government in his case. A Division Bench of this Court allowed the said petition and held that as the petitioner was acquitted in the case instituted against him by the Customs Authorities under Customs Act, the gold recovered from him could not be confiscated and ordered its restoration to the petitioner. The order passed by the Division Bench in Petition No. D‑146 of 1975 was challenged by the Customs Department before the Supreme Court in C.P.L.A. No.K‑98 of 1976 but the leave was refused and the order passed by this Court in Petition No. D‑146 of 1975 was affirmed.

4. In the second mentioned case of Muhammad Umer Sooni, another Division Bench of this Court relying on the judgment in Petition No.146 of 1975 ordered that the silver which was recovered from the possession of the petitioner in that case and which was confiscated by the Customs Authority be restored to the petitioner as he was acquitted in the proceedings before the Special Judge, Customs relating to it. The above decided cases fully support the contention of the learned counsel for the petitioner that upon acquittal of the petitioner in the proceedings initiated against him for his trial under the Customs Act for alleged offences of smuggling of gold and currency the Customs Authorities were not entitled to confiscate the gold and currency recovered from him. We may also mention here that the learned counsel for the petitioner also relied on section 179‑A of the Customs Act which was added after section 179 in the Customs Act by Ordinance IV of 1977 promulgated on 12‑1‑1977 which provided that notwithstanding anything contained in section 179, 181 or Section 182 or in Chapter XIX, in cases where the owner or the person incharge of the goods or things seized are to be, or are being prosecuted before a Special Judge, an order of adjudication made under Section.

5. 179 or Chapter XIX shall be` subject to the decision of the Special Judge and of the Special Appellate Court in appeal or revision if any. It is, accordingly, contended by the learned counsel for the petitioner, that the petitioner having been finally acquitted in appeal by the Special Appellate Court, the order of adjudication was subject to the above provision of law. No doubt the above inserted section 179‑A was repealed by the Finance Ordinance I of 1979 but it is rightly contended by the learned counsel that as the adjudication order in the case was passed on 3‑5‑19'77 the provisions of section 179‑A were applicable and the petitioner could not be denied advantage of the same on account of its subsequent repeal by the legislature.

6. For the aforesaid reasons we allow this petition and declare that the order of confiscation and imposition of penalty passed by the respondents as without lawful authority and of no legal effect. We further direct that the gold and currency recovered from the petitioner and confiscated by respondents and the penalty if already recovered from petitioner be restored to the petitioner. However, there will be no order as to costs as the respondents have not appeared and contested the proceedings.

7. AA./M‑825/K Petition accepted,