MR. JUSTICE ABDUL HAMEED BALOCH.--(1). This Custom Reference under Section 196 of the Customs Act, 1969 ("the Act" ) has been preferred against the judgment dated 23rd June, 2018 ("impugned judgment" ) passed by the Customs Appellate Tribunal (Member Technical-III, Karachi), whereby Customs Appeal No. Q-402/2018 against the Order-in-Original No. 03/2018, dated 24.01.2018 was allowed.
2. Brief facts of the case as reported by the Superintendent ARU MCC Quetta are that on 16.09.2017, at about 21.50 hours, a passenger namely Fazal Muhammad son of Pir Muhammad (resp ondent No. 1) having Passport No. NAO 157952 and CNIC No. 544003951795-1/5 was checked, who was proceeding to Dubai via flight No. FZ-
342. His luggage was searched which resulted in recovery of foreign currency 50,000 Australian dollars. He failed to produce any lawful authority for its possession. Hence, his act amounted to smuggling of foreign currency .
Accordingly , the said currency was seized for violation of the provisions of Chapter XVIII of Foreign Exchange Manual 2002 read with sections 2(5), 15 and 16 of the Act, further read with SRO 566 of 2005 and read with section 8 of Foreign Exchange Act, 1947.
3. Initially a show-cause notice dated 24.10.2017 was issued to the respondent No. 1 and after completion of requisite formalities, the matter was placed before the Collector Customs, Quetta, who vide order dated 20.02.2018 held that the charges against the respondent No. 1 are established and ordered for confiscation of Australian dollar 50,000/- (Equivalent to Pak Rs. 42,00,0 00/- out rightly in favour of the State and a personal penalty of Rs.
500,000/- (five hundred thousand) was also imposed on the respondent under clauses (8) and (89) of the section 156(1) of the Customs Act, 1969 read with SRO 566(1)/2005 dated 06.06.2005 and SRO 499(1)/2009 dated 13.06.2009. The respondent No. 1 being aggrieved of the order passed by the learned Collector Custom Quetta, preferred an appeal before the Customs Appellate Tribunal Karachi, Bench-III ("the appellate tribunal" ), which was allowed vide order impugned judgment. Hence, this reference.
3. Learned counsel for the petitioner contended that the learned appellate Tribunal has passed the impugned judgment without considering the provisions of section 139 of the Act; that it is incumbent upon every citizen to declare his luggage. The respondent did not declare the alleged currency notes at airport; that the plea taken by the respondent No. 1 is after thought.
4. Conversely learned counsel for the respondent No. 1 stated that the impugned judgment is in accordance with law and the respondent No. 1 at the time of arrest declared the luggage and disclosed all the facts but the authority did not consider the same. He lastly prayed for dismissal of the reference.
5. We have heard the learned DPG as well as counsel for the respondent No. 1 and have gone through the record with their able assistance.
6. It may be observed that while exercisin g reference jurisdiction under section 196 of the Customs Act, 1969, this Court has to examine and decide only such questions of law, which may arise from the order passed by the Customs Appellate Tribunal and, therefore, this court is not supposed to enter into the disputed questions of facts, unless such findings are found to be perverse or contrary to the record, the Appellate Tribunal is the final fact finding forum as provided under the law .
7. It is the allegation against the respondent No. 1 that on 16.09.2019 when he was ready for departure to Dubai at Quetta Airport via flight No. FZ-342, his luggage was searched and 50000 Australian dollars were recovered from his luggage. The perusal of record reveals that at the time of recovery the respondent No. 1 told the customs authority that 50000 Australian dollar belongs to respondent and four others persons, who were also present there, but the customs authority did not inquire from that four persons. It appears from the record that the other four persons had also filed affidavits before the Pakistani Embassy at Dubai confirming their ownership with regard to the recovered currency . The Investigating Officer has a power to examine any person during inquiry of the case. It would be appropriate to reproduce the relevant provision of the Act as under: "165. Power to examine persons.--(1) The appropriate officer may, during the course of an inquiry in connection with the smuggling of any goods,--
(a) require any person to produce or deliver any document or thing to such officer ,
(b) examine any person acquainted with the facts and circumstances of the case.
(2) The appropriate officer shall exercise the powers in subsection (1) only in relating to a person who is readily available or present before him and shall be subject to the same provisions as on officer -in-charge of a police station is subject to under the Code of Criminal Procedure, 1898 (Act V of 1898), when investigating a cognizable offence."
It is responsibility of the Investigating Officer to investigate the matter according to law. It appears from the record that the investigating officer did not call the other four persons, who submitted their affidavits stating therein that the total foreign currency does not only belong to the respondent rather each of them have contribution of 10000 dollars. In this regard the respondent No. 1 also produced eight (08) receipts of foreign currency before the adjudicating officer, which shows that Hakimullah purchased 10000/-, Raz Muhammad having two receipts, purchased 10000/-, Muhammad Arif purchased 10000 dollars and Faiz Akhtar purchased 10000 dollars. The adjudicating officer verified the referred receipts from the foreign exchange dealer . As per Notification No. 1/2015- SB, date 1st June 2015, issued by the State Bank of Pakistan a person is authorized to take out of Pakistan foreign exchange from Pakistan. There is no requirement for foreign exchange less than US $ 10,000/- or equivalent thereof. The referred notification being relevant is reproduced as under: APPENDIX III-23 NOTIFICA TION NO. F .E/1/2015-2B DA TED 1ST JUNE, 2015 In exercise of powers conferred by Section 8 of the Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) and in terms of permission State Bank of Pakistan, it is notified as follows: Any person is allowed to take out of Pakistan US Dollars or equivalent thereto in other foreign currencies as per the following limit:-- Age group of personMaximum limit per person Per V isit (US $ or equivalent in other foreign currencies)Annual Ceiling per person (US$ or equivalent in other foreign currencies)
Up to 5 years 1,000 6,000 From 5-18 years 5,000 30,000 Above 18 years 10,000 60,000 Sd/- (Saeed Ahmed)
Governor (A)
9. The Constitution of Islamic Republic of Pakistan 1973, has guaranteed rights to every citizen to be treated equally and according to law . It would be appropriate to reproduced Article-4 of the Constitution as under:--- "4. Right of individuals to be dealt with in accordance with law , etc.
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
10. There is nothing in the impugned judgment which would justify disregard of the cogent reasoning and the factual determination made by the Tribunal. In the case title Collector Customs Karachi v. Messrs Haji Ismail Co. and others PTCL 2016 CL. 78, it has been held that it is the Tribunal which is the forum meant for determining factual aspect of the case such the above. The High Court while exercising jurisdiction under Section 196 of Customs Act, 1969 is not free to embark upon an unfettered inquiry into factual aspects which have been properly considered and decided by the Tribunal.
In view of above, the instant reference being bereft of any merit is dismissed.