' MAZHAR ALAM KHAN MIANKHEL, J.--The petitioner herein, has filed instant Reference with the following questions of law:-- "(a) Whether ANF Staff, not notified as Customs Officer under section 6 of the Customs Act, 1969, could arrest, recover, seize the foreign currency?
(b) Whether the Customs Appellate Tribunal, performing judicial function, can direct/suggest to a party before it to take certain additional grounds and if so, has it not prejudiced the case of the petitioner?
(c) Whether the appeal before the Customs Appellate Tribunal was filed by a person, competent to file?
2. The brief facts giving rise to the present reference are that the petitioner on 15-8-2006 while leaving for Dubai at the International Departure Lounge of the Peshawar Airport, was intercepted by ANF staff deputed at the Airport for their routine checkup / search for narcotics but while realizing the presence of a considerable huge amount of foreign currency of different countries, fully detailed in the recovery memo and seizure report, referred the petitioner to the counter of Customs Authorities situated adjacent to their counter at the Airport. The Customs Authorities present there, recovered foreign currency in accordance with law and other non-offending goods from the accompanied baggage of the petitioner and after procedural and codal A formalities, a case F.I.R.
No,20 dated 15-8-2006 Police Station, Customs Investigation and Prosecution Branch, Customs House, Peshawar, was registered under sections 2(2), 16, 156(1)(8) and (89) of the Customs Act, 1969 read with Foreign Exchange Regulation Act, 1947, and Imports and Exports Act of 1950. After investigation, the Deputy Collector Customs Headquarter, Peshawar, submitted his seizure report dated 17-11-2006 and the foreign currency was confiscated by the Additional Collector Customs, Customs Collectorate, Peshawar, as Adjudicating Officer in terms of section 179 of the Act, 1969, after issuance of a show-cause notice dated 4-12-2006 vide his Order-in-Original No,683 dated 13- 12-2006. The petitioner, when feeling himself aggrieved, challenged the said confiscation order before the Collector (Appeals), Peshawar, who vide his order dated 18-1-2007 accepted the appeal of the petitioner and termed the seizure and confiscation of currency to be in disregard of law, justice and equality by directing the A return of the same in equal amount in Pak. Currency after its conversion. The Customs Authorities by feeling aggrieved of the said order filed their appeal under section 194-A of the Act, 1969 before the Appellate Tribunal Bench at Peshawar, who vide his judgment/decision dated 31-3-2009 allowed the appeal of the Customs Department and set aside the order of Collector (Appeals) by restoring the original order of confiscation dated 13-12-2006, with the direction for return of non-offending goods/articles to the petitioner.
3. Learned counsel for the petitioner in support of his reference submitted that the very recovery by the ANF staff at Peshawar Airport was unlawful and without jurisdiction as no such power under section 6 of the Act of 1969, was delegated/extended to the ANF; the petitioner was not provided with any chance for making a declaration under section 139 of the Act, 1969. He further submitted that no violation of any of the Provision of the Act, 1969 Act of 1947, and Act of 1950 was made by the petitioner. His further submission was that the Special Judge Customs Excise and Taxation, Peshawar, after a full-fledged trial has also acquitted the petitioner vide his judgment dated 19-1- 2010 and after such acquittal the confiscation of currency is unlawful by placing reliance on 1987 SCMR Page 1840 (The Collector Central Excise and Land Customs and others v. Rahm Din). Further submitted that the very appeal of the respondents before the Appellate Tribunal was incompetent and not maintainable. The reliance by the Tribunal on Khud-e-Noor case reported in 2006 SCMR page 1609, is nothing but a misconception of law and facts hence seizure and confiscation of currency is unlawful.
4. Against that, the learned counsel for the respondents submitted that it is a reference before this court, wherein only question of law can be agitated whereas the petitioner has raised factual controversy which has already been considered and settled by the competent fora under the Customs hierarchy. While replying to the submission made by the learned counsel for the petitioner regarding recovery by ANF staff, he was of the opinion that both the counters i,e, of ANF and the Customs Authorities are quite adjacent to each other at the Peshawar Airport. The ANF staff after realizing the presence of foreign currency, referred the petitioner along with its accompanied baggage to the Customs Authorities who under the law proceeded further against the petitioner and thereby has not committed any illegality. While replying to the question of acquittal of the petitioner by the Special Judge Customs, Excise and Taxation, Peshawar, in the F.I.R.
Case, the learned counsel submitted that the findings of that fora has nothing to do with the findings/ procedure by the Customs Authorities and both work independently and such acquittal will not affect the process of the Act of 1969. The learned counsel for the respondents requested for dismissal of instant reference as no question of law was raised or referred by the petitioner.
' Learned counsel for the parties were heard and record of the case was perused.
5. Under section 6 of the Act, 1969, functions of Customs officials can be entrusted to other officer by the Board by making a notification in the official Gazette. Section 6 is reproduced hereunder for ready reference:-- "S.6. Entrustment of functions of customs officers to certain other officers, ---(1) The Board may, by notification, in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of Customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and Scheduled Banks."
' Similarly, under section 7 of the Act, ibid, all the officers of Central Excise, Police and the Civil Armed Forces, and all the officers engaged in the collection of land-revenue are empowered and required to assist the officers of the Customs in discharge of Their functions under the Act of 1969. The learned counsel for respondents was unable to make out a case whether any of the ANF officers was notified as Customs Officers under section 6 of the Customs Act, 1969, and similarly section 7 of the Act is Also silent in this regard, but the question involved in the instant reference in fact is to determine as to whether any recovery of foreign currency was made by the ANF staff. The simple answer to this question would be, as proved on the record, that no such recovery under the Customs Act, 1969, was made by any of the official of ANF. After realizing the presence of foreign currency, the ANF staff referred the petitioner to the Customs Officials present on the adjacent counter who under the Act of 1.969 completed the process of recovery and then registered the case under the relevant provisions of Customs Act. The first detection by the ANF staff has never been denied by the Customs officials as this very fact has been brought in the original order of confiscation, recovery memo that the recovery of foreign currency was affected by the Customs Authorities with the help of officials of ANF. So, this fact has been established on the record that the recovery was affected from the petitioner by the Customs officials and not by the ANF staff, so, the question of application of section 6 of the Act, 1969, does not arise in the circumstances of the case. Facts and circumstances of Rahm Din's case 1987 SCMR Page-1840 (supra) relied upon by the learned counsel for the petitioner are altogether different from the case in hand. It was established on the record that a huge quantity of foreign currency was being smuggled out of the country by the petitioner in violation of the law and he failed to prove the lawful possession of the foreign currency and taking the same in a valid and lawful manner.
6. As far as, raising of additional grounds during the pendency of the appeal is concerned, apparently there is no legal bar provided in the law, at the most it could be considered as a discretion of the court. So for this aspect, we can see whether such discretion by the Appellate Tribunal was exercised judicially or whether exercise of such discretion had caused any prejudice to the petitioner. The perusal of the said additional grounds available on the record would suggest that nothing new was brought on the record. After hearing the appellant on additional grounds, the petitioner was provided a full chance of rebuttal and nothing was brought on the record reflecting that such discretion was exercised by the Appellate Tribunal against the law or without jurisdiction or the same had caused any prejudice to the petitioner.
7. As far as, filing of appeal before the Customs Appellate Tribunal by competent person is concerned, nothing material was brought on the record suggesting as such.
So, what has been discussed above, there is no life in the instant reference, hence the same is dismissed.