' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court has been filed against the judgment dated 20th June, 2002 passed by the Peshawar High Court Peshawar.
2. Precisely stating the facts of the case are that respondent and others were proceeded against vide Show Cause Notice C.No,Coll/Adj/ 20/99/5958, dated 17th June, 1999 for possessing foreign origin cloth loaded in a Suzuki Carry Van without registration number and a Truck bearing Registration No,GLT-8048 at `Jiljar Tehsil Pattan "District Kohistan. On demand respondent No,1 could not show valid documents for keeping in his possession the goods as such case vide F.I.R.
No,34 dated 20th April, 1999 was registered and the vehicle as well as the foreign origin cloth loaded thereon were taken into possession and were seized under section 16 of the Customs Act, 1969 with the belief that the articles were brought into Pakistan in violation of section 2(S) and section 16 of the Customs Act, 1969 [hereinafter referred as 'the Act 1969] read with section 3(1) of the Imports and Exports (Control) Act, 1950. The Adjudicating Authority i,e, Collector of Customs and Central Excise, Peshawar vide order dated 8th September, 1999 confiscated the cloth of foreign origin outrightly. Moreover, the vehicles i,e, Suzuki Carry Van and Truck were also confiscated with option to redeem the same on payment of redemption fine of Rs,15,000 and Rs,30,000 respectively.
In appeal filed by the respondents the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad, vide order dated 12th November, 1999 with majority opinion disposed of the appeal as follows:-- "For the reasons stated above, I agree with impugned order of Mr. Falak Sher, the learned Member (Technical) that the impugned order of the Collector of Customs, Peshawar, which directs outright confiscation of the goods in question and release of both the vehicles on payment of redemption fine. Consequently in view of the majority opinion, the appeal is dismissed."
' Appellate order was assailed by respondent No,1 before the Peshawar High Court, Peshawar by invoking its appellate jurisdiction under section 196 of the Act, 1969. Learned Division Bench of the Peshawar High Court accepted the appeal on the ground that the Act 1969 has not been made applicable to the area of District Kohistan where the goods and vehicles were seized, therefore, the Customs Authorities had no jurisdiction to adjudicate upon the matter.
3. Leave to appeal was granted to examine following questions:-- "(a) Whether the provisions of Customs Act, 1969 have been extended to the area in question within the contemplation of Article 247 of the Constitution;
(b) Whether the area in question having once been detached from the Malakand Division (to which the Customs Act, 1969) was extended and subsequently attached to Kohistan District of Hazara Division (to which Customs Act, 1969 was not then extended) would still be deemed to be a part of Malakand Division for the purpose of the extension of Customs Act, 1969;
(c) Whether the area in question, even if attached to Hazara Division, is a part of Hazara Kohistan Tribal Area if so, and if not to what effect; and
(d) Whether Jiljal Check Post on Karakurram Highway is a part of tribal area of Hazara or settled District of Hazara Division."
4. Learned Deputy Attorney-General contended that the Act, 1969, by means of Regulation No,III of 1975, was extended to District Swat, Kohistan was one of the Adminikrative Units of the Swat District, therefore, notwithstanding the fact that vide notification of the Revenue Department of the Government of N.-W.F.P. Dated 8th June, 1997 Kohistan has been declared as District for administrative purposes, but for the purpose of Article 246, it would be deemed to be the part of "Swat" District and for such reason in accordance with Article 247 of the Constitution there was no legal necessity for extending the Act, 1969 afresh and learned High Court was not correct in holding that as Act 1969 has not been extended to Kohistan being a tribal area, therefore, the Customs authorities had no jurisdiction to seize the vehicle as well as foreign made cloth belonging to respondents. To substantiate his plea he relied upon the judgment reported in the case of Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485 and Abdul Khan and 2 others v. The State and another PLD 1995 Quetta 12.
5. On the other hand learned counsel for respondents contended that on bifurcation of the area of Kohistan from Swat District by means of Sixth Constitutional Amendment Act and subsequently on declaring it as an Administrative District on 8th June, 1997, extension of the Act, 1969 afresh was called for in accordance with the provisions of Article 247 of the Constitution as held in the case of Abdul Khan (ibid) relied upon by the learned Deputy Attorney-General because at the time of extension of the Act 1969 to Swat District by means of Regulation No,III of 1975, the tribal area of Kohistan had no independent status, therefore, on coming into being by means of Constitutional amendment, extension of Customs Act to the tribal area of Kohistan, afresh was necessary.
6. We have heard learned counsel for the parties and have also gone through the impugned judgment in the light of their respective contentions. Learned Division Bench of the High Court on having examined the provisions of Regulation No,III of 1975 observed that the Act, 1969 was made applicable to the Districts of Chitral, Dir, Swat and Malakand Protected Area but it was not made applicable to the area forming Kohistan District as required under Article 247 of the Constitution of Islamic Republic of Pakistan.
It is to be noticed that there is no dispute between both the parties that the tribal area of Kohistan was a part and parcel of Swat District. Admittedly vide Regulation No,III of 1975, Customs Act was extended to the Swat District with effect from 22nd July, 1975. At that time Constitutional position as per Article 246 of the Constitution of Swat District was as follows:-- "246. Tribal Areas.--In the Constitution,- (a)
(b) "Provincially Administered Tribal Areas" means--
(i) the Districts of Chitral, Dir and Swat (which includes Kalam, Malakand Protected Area, the Tribal Area adjoining Hazara District and the former State of Amb; and Later on Kohistan area was carved out from Swat District and ultimately status of District was also given to it by the Provincial Revenue Department for administrative purposes but by means of Act 1976 of the Constitution following amendment was made in Article 246(b):-- "4. Amendment of Article 246 of the Constitution.--In the Constitution, in Article 246,---
(a) In paragraph (b) in sub-paragraph (i),--
(i) after the brackets, words and comma '(which includes Kalam)', the words and comma 'the Tribal area in Kohistan District,' shall be inserted and shall be deemed to have been so inserted on the first day of October, 1976; and
(b) ..
7. Although by means of above amendment the tribal area in Kohistan was recognized to be a Provincially Administered Territory but fact remains that it is the same area which was once a part of the. Swat District where Regulation No,III of 1975 was extended, therefore, following the dictum laid down in the case of Superintendent, Land Customs, Torkham (Khyber Agency) (ibid) it would be deemed that the Act 1969 was also extended to the tribal area in Kohistan. Relevant para. Therefrom is reproduced herein below:-- "The result, therefore, of the above analysis of the various Constitutional provisions relating to the tribal area is that the tribal areas became legally parts of the territories of Pakistan from 15-8-1947, the date mentioned in the Notification of the 27th June, 1950 and all laws which applied to those territories before the 15th August, 1947 were continued in force until altered or amended, and from 1955 the tribal area of the North-West Frontier became parts of the Province of West Pakistan having a representation even in the Legislature of the said Province. There could be no manner of doubt, therefore, that the Sea Customs Act, the Land Customs Act and section 5 of the Tariff Act, which had been made applicable to the tribal areas by the Notifications of the 22nd September, 1926 and the 24th January, 1938 continued to apply in those areas and never lapsed. "Torkham was declared a Land Customs Station by the Notification of the 28th January, 1938 and Afghanistan was declared a foreign territory under, section 5 of the Tariff Act, 1934 by the Notification of 10th January, 1939, in respect of the tribal areas of the Khyber Agency. Subsequently on the 29th March, 1941, another Notification was issued prohibiting under section 19 of the Sea Customs Act the importation of dutiable goods into Pakistan from Afghanistan. By another notification issued on the 12th June, 1951 under subsection (1) of section 3 of the Imports and Exports "Control Act, the importation of fabrics into Pakistan save under a licence issued for the purpose was prohibited and on the 28th July, 1959, another Notification No,S.R.O. 349 was issued under section 5 of the Tariff Act, 1934 again declaring Afghanistan to be a foreign territory for the purposes of the said section and directing that a duty of customs at the rate prescribed by or under the Tariff Act shall be leviable on any of the articles mentioned in the Schedule to the said Notification, which included fabrics containing silk, artificial silk, cotton or gold and silver thread, when imported by land from any of the notified foreign territories."
The principle laid down in the above judgment was also followed in the case. Of Abdul Khan (ibid) as such there is no need to discuss the same in details.
' Thus for the forgoing reasons appeal is allowed, judgment dated 20th June, 2002 is set aside.
However, case is. Remanded to learned Peshawar High Court, Circuit Bench Abbottabad for fresh decision of the petition as respondents' case had not been examined by the High Court on merits and relief was given to them for above reasons alone. Parties are left to bear their own costs.