JUDGMENT: MUFTAKHIRUDDIN, J.- 1. The petitioner Agha Muhammad son of Abdul Qayyum of Maizan Market, Quetta has challenged the search of his Trucks Nos. QAA-9417 and QAB-2942 by Dera Bugti Police on 27-2-1982 and seizure of 98 boras of betel nuts and 41 boras of pisham belonging to him, which were being brought in those trucks to Quetta. It is mentioned in the petition that a challan has been filed in the Court of Special Judge Customs at Sibi and the Special Judge had released the trucks on surety to the owners but the goods found in trucks have not been restored to him so far. It is further alleged that the customs authorities having not initiated so far any proceedings for the confiscation of the goods a fresh adjudication would be illegal and nullity in the eyes of law. It is prayed that it should be declared that the search as carried out was illegal and all proceedings which may follow would be nullity in law and the goods be restored to him.
We required the Superintendent of Police, Sibi (respondent No. 1) to furnish the parawise comments and the Superintendent of Police has explained that on 27-2-1981 two trucks bearing registration number as mentioned above were stopped by the Police and legal authority for carriage of goods having not been furnished by the petitioner, he was arrested alongwith the truck drivers and a challan has been submitted before the Special Judge Customs, Sibi and since the goods claimed by the petitioner are the case property in the case before the Special Judge, the respondent No. 1 is not in a position to do anything regarding the restoration of the goods to the petitioner or any other authority without the order of the learned Special Judge, Customs. A letter addressed by the Superintendent of Police, Sibi to Headquarters Assistant Collector (Preventive) Central Excise and Land Customs, dated 14-6-1983 on the subject has also been placed on record and the same is reproduced:- "From: The Superintendent of Police, Sibi.
To: H. Qrs. Assistant Collector (Prev.)
Central Excise and Land Customs, Quetta.
Memorandum No. 869-71/P.B.
Dated Sibi, the 14th June, 1983.
Subject:- Seizure case in respect of Agha Muhammad s/o Abdul Qayyum, 98 bags of betelnuts and 41 bags pishims contained in trucks No. QAB-2942 and QAA-9471 by Dera Bugti Police.
Please refer to your letter No. V-8 Misc. 83/2959-61, dated 3-5-1983 on the subject cited above.
The case is pending trial before the Honourable Court of Sessions Judge/Special Judge Customs, Sibi Division, Sibi.
The District Attorney/Public Prosecutor Sibi has informed vide his letter No. 141/PP, dated 19-5-1983 that-
(i) Show-cause notice is to be issued to accused persons under section 171 of Customs Act, 1969.
(ii) The case property be handed over to Custom Authority. The case property will be asked from Customs Authorities, when needed to be exhibited in the Court as it has not been yet exhibited.
(iii) The trucks have been released on the orders of Hon'able Special Judge Customs, Sibi on the Spurdiginama.
As suggested by Public Prosecutor/District Attorney, Sibi to hand over the seized goods to Customs Authorities it is pointed out that the seized goods are lying at Police Station, Dera Bugti and two trucks are required to shift these goods to Quetta. It is, therefore, requested that necessary transport be arranged to shift the seized goods from Dera Bugti to Quetta and the goods be taken in custody accordingly through Public Prosecutor/ Special Judge Customs, Sibi as the case is still pending trial.
Superintendent of Police, Sibi."
3. In spite of this reply the learned counsel for the petitioner has laid stress on his contention that so far no proceedings have been initiated by the Customs Authorities for the confiscation of the goods as no notice as required under sections 168 and 171 of the Customs Act, 1969 has been issued and since the provisions of section 168 have not been complied with as no reasons for arrest or seizure of the goods have been given, the seizure is illegal and on that count also the trial before the Special Judge is not warranted in law. We are not impressed by this contention. The argument assumes that the provisions of section 156 (1X89) under which the petitioner is being prosecuted provides mutually exclusive proceedings which cannot overlap. The petitioner is being proceeded in the Court of the Special Judge, Sibi for being found in possession of or carrying the smuggled goods as laid down in section 156 (1)(89) of the Customs Act, 1969. When we examine the Customs Act, 1969 we notice that against certain items the liability of goods to confiscation alone is mentioned as penalty, without any mention of a trial by a Special Judge, similarly there are certain items which are punishable with penalty or fine only, without any mention of trial by the Judge and there are still items which when make mention of the Special Judge they mention "fine" instead of penalty or fine, as the only or one of the punishments prescribed therefor.
To explain further we may reproduce the provisions of section 156, as its interpretation is involved in the instant case. Section 156 reads as follows:- "156. Punishment of offences.-=-(1) Whoever commits any offence described in column 1 of the table below shall, in addition to and not in derogation of any punishment to which he may be liable, under any other law, be liable to punishment mentioned against that offence in column 2 thereof:- Offence Penalties- Section of this Act to which offence has reference. 1 2 3
89. If any person Such goods shall be General without lawful excuse, liable to confiscation the proof of which and any person con- shall be on such person, cerned in the of- acquires possession of, hence shall e liable or is in any way to a penalty not concerned in carrying, exeeding ten times removing, depositing, the value of the harbouring, keeping or goods; and upon concealing, or in any conviction by a Special manner dealing with Judge, to imprison- smuggled goods ment for a term not or any goods with exceeding six years respect to which there and to fine not may be reasonable exceeding ten times suspicion that they are the value of such smuggled goods: goods and if the Special Judge in his Provided that if the discretion so orders smuggled goods be also be whipping, gold bullion or silver bullion the onus of proving the plea that such bullion was obtained by processing or other mea ns empIoyed in Pakistan and not by smu ggling shall be upon the person taking that plea "
4. The provision of law containing penalty clause is unambiguous and it in unmistakeable terms shows that it comprises of two parts, one relates to confiscation of the offending goods and penalty not exceeding ten times the value of the goods and the other to the trial of offender by a Special Judge and the liability to imprisonment and fine of the person concerned in the commission of the offence in respect of those goods. It is also apparent that it relates to certain prohibition with regard to the importation or exportation of goods and involves the civil proceedings of confiscation, civil penalty for forfeiture to be levied by the officers of the Customs and also the infringement involving criminal proceedings. It has been held that the imposition of civil liability such as confiscation or seizure or penal tax by the administrative agencies will not absolve the transgressor for liability to criminal prosecution, if he is liable upon those identical facts, because imposition of civil penalties does not amount to conviction and sentence under the criminal law in any sense. Proceedings for adjudication of confiscation and penalties are taken by different officers in the hierarchy of the Customs Department. The intention of the Legislature is thus clear that the disposal of the goods seized is left entirely in the jurisdiction of Customs Authorities and the proceedings taken by the Customs Authorities for the confiscation of the goods are more in the nature of Departmental proceedings in condemnation of the goods for the purpose of revenue and are regarded as proceedings of civil nature despite their penal character. The Customs Authorities, as pointed out by the August Supreme Court in Adam v. Collector of Customs PLD 1969 SC 446 are not a judicial Tribunal in the strict sense of the term nor their verdict of confiscation of the goods be regarded as punishment on the other hand, the proceedings for the criminal prosecution of a person who. Commits an offence under the Act in relation to those goods fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for the commission of the alleged offence and entailing a punishment for the same. Both are independent of the other. They cannot be deemed to be mutually exclusive, lt has been further clarified by the Supreme Court in Mosam Khan and another v. The State 1969 SCMR 208 that the prosecution is not dependent on prior adjudication of liability to confiscation of goods by Custom Authorities. Their Lordships of the Supreme Court were dealing with a case where the Customs Authorities had chosen not to confiscate the goods. (As is done in the instant case so far) and it was maintained on behalf of the petitioner that unless the officers of customs adjudge confiscation of goods a Magistrate cannot take cognizance of the offence. The argument was repelled and it was observed that the word "and" after the clause "such goods shall be liable to confiscation" must be read in disjunctive sense and not conjunctive sense. It was held that the prosecution under item 81 of the Schedule to section 167 (this provision is almost similar to provision of section 136(89) of the Customs Act, 1969), is not dependent on prior adjudication of liability of confiscation of goods by officers of the custom, and the prayer for quashment of proceedings before Court was declined. It was also held in Khurshid Mir and 3 others v. State 1977 P Cr. L J 430 that adjudication of Customs Authorities have no bearing on criminal trial. Though there can be no difference of opinion about the law enunciated by the Supreme Court the Legislature has set the controversy at rest by the insertion of section 179^A in the Customs Act, 1969 by Act XII of 1977. The newly added section 179-A reads as follows:- "179-A. Orders of adjudication to be subject to decision of Special Judge, etc.- Notwithstanding anything contained in section 179, section 181 or section 182 or in Chapter XIX, in cases where the owners or person-incharge of goods or things seized are to be, or are being, prosecuted before a Special Judge, an order of adjudication made under section 179 or under Chapter XIX shall be subject to the decision of the Special Judge and of the Special Appellate Court in appeal or revision, if any."
5. This is in our opinion a complete answer to the contention of the learned counsel for writ petition and the contention is opposed to the scheme of the provisions itself. We are, therefore, of the considered view that the prosecution of the petitioner before the Special Judge, Sibi cannot be taken exception of. The jurisdiction conferred by Article 9 of the Provisional Constitution Order, 1981 on the High Court is discretionary in nature and designed to enforce the law of the land. A fortiori and order calculated to defeat the ends of justice is foreign to this beneficial jurisdiction and as such should never be passed.
For the above reasons, we do not find any justification for the exercise of our constitutional jurisdiction in this case. The petition, therefore, merits no consideration and is dismissed with no order as to costs.