SYED SARDAR HUSSAIN SHAH, MEMBER JUDICIAL.--- This appeal has been filed by Zari Gul son of Umar Khan and another (herein after called appellants) against the Order-in-Original No.90 of 2017, dated 20.04.2017, passed by the Collector of Customs (Adjudication), M.C.0 Building, Islamabad, whereby the learned Collector of Customs outrightly confiscated the currency and vehicle in favour of the State.
2. Briefly stated the facts of the case are that the. Anti-Smuggling Officer, HQ Frontier Corps., Khyber Pakhtunkhwa, Peshawar on 26.09.2016 at 1830 hours, Muhibullah and Zari Gul (Appellants) were smuggling Pak.
Currency at Rs.10,322,525,/- and Afghan Currency A 531/- (equal to pak Rs. 716, 850/-) concealed in spare wheel of Toyota Pick-Up No. PAG-493 (Model-1993), Chassis No. LN106-0088741, from Afghanistan to Pakistan. The FC troops of Kurrum Militia recovered the same at Arawali Check Post, who intercepted it on information of smuggling arms/ammunition. On deman d by FC authorities, both the aforesaid accused failed to produce any documentary evidence showing legal import or payment of duty/taxes leviable on the above said vehicle as well as proof of lawful possession of the recovered Pakistani/Afghani currency . Possession of the recovered Pak/Afghan currency and the vehicle without eviden ce of its legal status/payment of duty/taxes leviable thereon, was the violation of Sections 2(s) and 16 of the Customs Act, 1969, read with Section 3(1) of the Imports and Exports (Control) Act, 1950, punishable under Section 156(1)(8) and (89) .of the Customs Act, 1969, read with Section 3(3) of the Imports and Exports (Control) Act, 1950. The FC troops seized the aforementioned Pak and Afghan currencies and the vehicle under Section 168 of the Customs Act, 1969 for violation of the aforesaid provisions of law and submitted seizure report for adjudication, seeking action in terms of Sections 156(1)(8)(89) of the Customs Act, 1969, Section 3(3) of the Imports and Exports (Control) Act, 1950. read with State Bank of Pakistan's Foreign Exchange Manual, 2002 (Chapter XVIII).
3. Subsequently , a Show-Cause Notice was issued to the appellant on 14.12.2016. The learned Collector (Adjudication ), M.C.C. building, Islamabad, outright confiscated the seized Pak Currency at Rs.10,322,525/- and Afghan Currency-531/- (equal to Pak Rs.716,850/-), while the vehicle used in transportation of the said smuggled currency was also outright confiscated. Hence the instant appeal to this Tribunal.
4. I heard arguments of the learned counsel Mr. Gulab Shah Afridi, for the appellant as well as Mr. Alhaj Gul, Superintendent Customs/Departmental Representative for the respondents and gone through the record of the case.
5. In this case, according to the recovery memo, the seizure was conducted at Arawali Check Post coming from Parachinar to Sadda, while the appellant was. travelling from Afghanistan to Pakist an. The anti-smuggling troops of Kurrum Militia recovered Pakistani currency of Rs.10,322,525/- and Afghan Currency-531 1- (equal to Pak Rs.716,850/-). The seizing agency has not placed on file Passport, Visa or Itininary to show that whether the appellant was travelling from Afghanistan to Pakistan or otherwise. The seizure in this case at Arawali Check Post is highly doubtful. The appellant appended with his appeal proper sale agreeme nts were executed between the parties in Tall Bazar , District Hangu in which he sold two vehicles from one Mr. Shahid Muhammad son of Nazir and other Mr. Naeem son of Anar Khan on Rs.5.2 million and Rs.5.l million respect ively, there is another document on file dated 13.02.2017, which is certified by their concerned Union Council Nazim that the forefathers of the appellants have been engaged in Transp ort business such as transportation of goods, selling and purchasing of vehicles and managing various Bus Stops/Adda in different parts of the province of Khyber Pakhtunkhwa. That on the day of occurrence i.e 26.09.2016 the appellants received the above mentioned amount from the above named purchaser at Sadda Bazar .
6. According to the definition of "Smuggling" provided in Section 2(s) of the Customs Act, 1969, means to bring into or take out of Pakistan, but in this case there is nothing to suggest that the appellant was bringing into Pakistani and Afghani Currency . For ready reference Section 2(s) is reproduced as under:- "Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force or en route pilfera ge of transit goods or evading payment of customs-duties or taxes leviable thereon.
The attempt, abetment or connivance to commit an offence smuggling would include in the expression "smuggle", but the attempt to smuggle has not been specifically defined in the Customs Act, 1969. The intention, preparation, attempt and completion of an act are the essential components of an offence, but an attempt to commit an offence in the criminal administration of justice, is a distinct offence, which is completed if in consequence to the preparation, an overt act is taken to commit the crime, this mix question of law and fact always depends upon the circumstances of each case without the completion of three essential ingredients, firstly the intention, secondly , the preparation and the thirdly the taking of a deliberate overt act.
7. In view of the letter of the Collector of Customs, Peshawar addressed to the Inspector General Headquarters, Frontier Corps (North), Qila Balahesar , Peshawar wherein he referred SRO 1090 (1)/2010 dated 01.12.2010, the anti smuggling powers of the Frontier Corps, KPR subject to the following conditions:-
(i) The functions shall be limited within 20 kilometers of the International Border .
(ii) The functions shall exclude the city Municipal limits, Customs area, Customs Station, Ports, Borders Customs Station, International Airports and Bonded W arehouses, etc;
8. It is clear cut violation of the said FBR Notification/SRO, as the amount and vehicle were seized inside in Pakistani Territory , on frequent route (G. T Road) and it is away from the Pak Afghan International border more than 80 K.M, and the F.C. officials were not authorized to conduct any seizure or search there, therefore, the seizure by the F.C authorities at Arawali Check Post is without lawful authority . Detailed perusal of the file reveals that there is nothing on file to ascertain that the appellant's intention had< to go out of Pakistan or entered into Pakistan from Afghanistan at that time, without ascertai ning the fact that he has taken the currency out of Pakistan or bring into Pakistan from Afghanistan is no crime. No person can be deprived of his property without due course of law. Mere possession of said foreign currency or Pakistani currency within the jurisdiction of Pakistan is no offence. In this scenario, it can be safely be presumed that the appellant might be present there for some business activity . The appellant, if was going out of Pakistan or entering into Pakistan was not afforded an opportunity under Section 139 of the Customs Act, 1969 to declare his baggage or any goods in his possession so how it can be presumed that he was going out of Pakistan or entering into Pakistan and the appellant be penalized for the crime without any certainty or conducting legal formalities. No doubt the burden as to the lawful possession of the goods is on the person committed an Offence but the prosecution must discharge the initial burden of the commission of the offence, then the burden will shift to the accused. On 30.10.2018, 19.11.2018 and 25.02.2019 the I.G F.C was informed to direct the concerned officer to attend the Court for information regarding that "(i) Where about of the seized currency whether it has been deposited in the State Bank of Pakistan or still lying with the F. C/Customs and
(ii) Certificate from competent authority showing distance of Arawali from the international border" but the seizing officer despite the direction from this Tribunal failed to appear .
9. In view of the above discussion, we allow this appeal, set aside the Order-in -Original No.90 of 2017, dated 20.04.2017, passed by the Collector of Customs (Adjudication), M.C.C. Building, Islamabad, direct the respondents to release the amount of Pakistani currency at Rs.10,322,525/- and Afghan Currency-531/- (equal to Pak Rs.716,850/-) and release the vehicle unconditionally to the appellants/owner of the vehicle on production of proper documents within 15 days of the receipt of this judgment. The appeal stands disposed of.