1. In the above case, the facts were that quit substantial amount of foreign currency was recovered from th respondent while he was proceeding to the aircraft for embarkatio at the Peshawar Air Port.
2. The above seizure was challenges through a writ petition before the Peshawar High Court, which wa allowed by a Division Bench. The Central Board of Revenu went in appeal before the Honourable Supreme Court of Pakistan which was dismissed. It may be advantageous to reproduce para. Of the above judgment, which has some bearing to the controvers in issue, which reads as follows:- "Para. 7: ' Now clause (8) of section 156, deals with the offence of smuggling goods into or out of Pakistan and clause (89) provides for punish ment for acquiring possession of or in any way being concerned is carrying, removing, depositing, harbouring, keeping or concealing any smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods. The learned Judges of the High Court have referred to Notification No, F. E. 1/ 78- SB, dated 11th May, 1978, issued by the State Bank of Pakistan by which any person could bring into Pakistan from any place outside Pakistan without limit, any currency notes or bank notes other than unissued notes or notes legal tender in Pakistan. The learned Deputy Attorney-General has not be'n able to bring to out notice any notification superseding the aforesaid notification of the State Bank of Pakistan putting any embargo on the import of such currency notes. In the circumstances he has not pressed the case as that of illegal importation of foreign currency by the respondent. Indeed the findings of the Collector of Customs in the adjudication proceedings were also that the respondent had not brought any foreign currency from outside Pakistan but according to him the respondent had collected the foreign currency seized from his possession locally. In view of this the learned Deputy Attorney-General was unable to press the charge under clause (89) of section 156, for the simple reason that if there was no restriction or prohibition on the import of foreign currency notes, the possession of such notes cannot be said to be the possession of smuggled goods or goods with respect to which there may be reasonable suspicion that they are smuggled goods. As regards clause (8) of section 156 also, in view of the admitted position that there was no prohibition on the importation of foreign currency notes, there would be no question of smuggling the same into Pakistan. The only question to be considered and indeed pressed by the learned Deputy Attorney-General is whether the respondent had made an attempt to smuggle foreign currency notes out of Pakistan, so as to attract the mischief of clause (8) of section 156 of the Customs Act, 1969."
8. On the other hand, Mr. Yaqub Khan, learned Advocate-General has relied upon un unreported order of the Honourable Supreme Court of Pakistan dated 8th May, 1984, passed in Criminal Petition for leave to Appeal No, Q-2 of 1984 while dismissing Petition for Leave against the judgment of Special Appellate Court (Customs) High Court of Baluchistan whereby conviction recorded by the Special Court Customs was maintained. Reliance has been placed particularly on the following observations :-- "It was contended by the learned counsel for the petitioner that by a Notification No, F. E. 1/78-SB dated 11th May, 1978, issued by the State Bank of Pakistan any person is permitted to bring into Pakistan from any place outside Pakistan without limit any currency notes or bank notes and as such the petitioner could not be charged or tried for an offence of smuggling of foreign currency.
3. This contention was repelled by the learned Special Appellate Court (Customs) relying upon the proviso to the notification in question according to which a person at the time of his arrival is required to make a declaration in the form prescribed by the State Bank of Pakistan in this behalf of the total amount of notes brought in by him, if so required by the Customs authorities. A plain reading of the notification would make it clear that the restriction with regard to bringing foreign currency into Pakistan is waived in respect of persons arriving into Pakistan. Such arrival into Pakistan should necessarily be one through such authorised routes or places which are manned by Customs staff and are declared ports, airports or land customs-stations within the meaning of section 9 of the Customs Act, 1969, by a notification issued by the Board in the official Gazette. The question of requiring any person to make a declaration at the time of his arrival would hardly arise in the case of those persons, who enter into Pakistan otherwise than through authorised routes which are not manned by any Customs officials. The petitioner is said to be an Afghan national and was apprehended from within the Quetta town. In the circumstances, the Customs authorities had hardly any opportunity of calling upon him to make a declaration in the prescribed form in respect of the foreign currency brought into Pakistan by him as provided in the notification.
4. Reliance was also placed on another notification by which general permission is granted by the State Bank of Pakistan to travellers to Pakistan to bring within them without any limit foreign currency notes and coins. This notification too was not applicable to the case of the appellant, as rightly held by the learned Special Appellate Court because the appellant was admittedly not a traveller."
9. It may be observed that in the instant case the Customs authorities have confiscated the petitioner's above foreign currency on two grounds, namely, that when he was asked to declare if he had any foreign currency after the interception of the bus, in which, he was travelling, his reply was in the negative and secondly, that the foreign currency was brought into Pakistan from a route other than specified under section 9 or 10 of the Act. It is, therefore, necessary to examine whether the above conclusions are in consonance with the provisions of the Act. It may also be observed that in the above latest case of the Honourable Supreme Court of Pakistan of 1986, their Lordships have taken the view that mere possession of foreign currency would not constitute any offence in view of the notification permitting the import of foreign currency without any limit. It was not urged before us that at the relevant time, the notification was no longer in the field or that 3 months prescribed period for surrender of the above currency has expired. The only point which was canvassed by the learned Advocate-General was that since the petitioner had failed to make a declaration when asked by the Customs staff, he was not entitled to the benefit of the notification.
5. We may examine this aspect in more detail. It is an admitted position that the petitioner and his father entered into Pakistan from Afghanistan in September, 1983, and brought the above Irani Rials with them and they were lodged in Mohajir Refugee Camp in Roghani, near Chaman. The importation had taken place in September.
6. 1983. It is evident that whin they entered into Pakistan and imported the foreign currency in question, nobody from the Customs Department had asked them to make declaration as they had come from an unspecified route. When on 27th October, 1983, the petitioner was searched and arrested, the above currency was in his possession. He was in fact not importing the forcing currency into Pakistan, but was in possession thereof. It may be pointed out that under the notification, the declaration of foreign currency is not obligatory. The person importing the foreign currency into, Pakistan in terms of the notification is obliged to make declaration in the form prescribed by the State Bank of Pakistan, if so required by the Customs authorities at the time of his arrival, and not subsequent to his arrival. In our view, on 27th October, 1983, when the petitioner was searched and the foreign currency was recovered from him, the declaration in terms of the notification could not have been asked by the Customs authorities, as it could not be said by any stretch of imagination that the petitioner arrived in Pakistan on the above date. Furthermore, it ha been pointed out by Mr. Yahya Bakhtiar, learned counsel for the petitioner that factually, it is not correct that the petitioner was asked by the Customs staff to make declaration of the foreign currency after he was intercepted in the bus, in which he was travelling. To reinforce his above submission, he has produced a copy of the statement of Mr. Baqar Hussain Jaffery. Sepoy of the Customs Department, who intercepted the above bus, recorded by the Special Judge in the aforesaid criminal case on 7th October, 1984, in which, there is no mention that the petitioner was asked to declare the foreign currency. It may be advantageous to reproduce the same, which read as follows:- "P. W.
7. 2.
8. Statement of Baqar Hussain Jafri. Muslim caste Syed age 37 Sepoy Customs Department Naib Court Quetta On S. A.
9. ' To examination to special Prosecutor Mr, Muhammad Iqbal Quet ta.
10. ' On 27-10-83 I was posted at Baleli Check Post as a Sepoy of Customs Department. My duty was from 4 a. m. To 12 noon. At about 11-30 a. m. One Bus QAB. 9545 came from Chaman side. Accused was present in Court was a passenger in a bus. He appeared to be suspicious and I searched his person. He had a belt of cloth tied around the vest under the shirt. The accused was brought in the office accused was searched in presence of Inspector Ghulam Mustafa. From the belt 65 lacs Irani Rial were recovered. A memo of recovery was prepared. Recovery memo P/A is the same correct and signed by me.
11. ' Note. Examination-inChief is reserved for want of property. S. R. S. A.
12. (Sd.) 7-10-84 Special Judge Customs Quetta.
13. ' Recalled and Reaffirmed.
14. ' Examination-in-Chief to Mr. Muhammad Iqbal Special Prosecutor Customs.
15. I see the recovery memo. Exh. P/A contains the details in Exh. P/B. The recovery memo. Exh. P/S is signed by me. I see currency Exh. P/1 in Court till the same. I see the belt Exh. P/2, in Court is the same from which the currency was recovered. Cross examination to Mr. Ehsanul Haq Advocate for the accused.
16. ' The bus was coming from Chaman. The number of bus was QAB 9545. I do not know the names of the driver of the bus or owner of the bus. The accused only was brought down from the bus. There were about 20/30 other passengers in the bus. The search of the accused was made in the office in the absence of the passengers. We did not try to call any public person to serve as a witness of recovery Ghulam Mustafa and Ansari Deputy Superintendent were present in the office. We had taken about half an hour in completing the recovery proceedings. The papers were prepared by the Inspector and at the interruption of Special Prosecutor, the witness states that I do not know where the papers were taken by the Inspector. I had the instructions to take down the accused from the bus from ' Havaldar Ali Sher of Customs Department. He is posted at Balali Check Post. Havaldar had given me instructions before the arrival of the bus. Havaldar had given me the description of the person but not his name. Havaldar had given me the instructions about 2/3 hours before the arrival of the bus. The duty of mine and of Havaldar was from 4 a. m. To 12 noon, the accused was brought down from the bus under the instructions of Havaldar. I do not know if there was any other reason for it or not. I had brought down the accused from the bus. I had brought down the accused from the bus as per instructions and as he had something tied around his waist which I had felt at the time. After about 5 minutes of the getting down from the bus, the person of the accused was searched. When the bus had come there, no other vehicle has come there at that time. I do not know if accused is Afghan Refujee. The proceedings given by me, only had taken place there in my presence. No re- examination Dated 10-11-1984, S. R. O. And A. C.
17. (Sd.)
18. Sessions Judge, Quetta."
10. He has also invited our attention to the averments contained in Paras. 5 and 7 of the petition, which have not been refuted by filing any counter-affidavit in which, inter alia, it has been averred that 7 or 8 days after his arrival in Pakistan, the petitioner and his father went to the Customs Department in Chaman to inquire about the changing of Irani currency, which they had.
19. Thereupon, the Customs Department told him that the currency could only be changed by the State Bank of Pakistan in Quetta or by an authorised dealer there and that they were not asked to fill-in any form of declaration about the currency.
20. Adverting to the above second ground, namely that since the petitioner had brought the foreign currency from unspecified route, it would amount to smuggling g in view of sub-clause (iii) of clause (s) of section 2 of the Act, it may be observed that in the above Quetta case, it has been held by a Division Bench of this Court that the first part of clause (s) controls the subsequent part of the same, meaning thereby that in order to constitute smuggling, the importation or exportation should be in breach of any restriction or prohibition for the time being in force, or it should be with the object of evading payment of customs duties or taxes leviable thereon. We are in respectful agreement with the above view. We are also inclined to hold that if there is no prohibition or restriction for the import or export of any of the items specified in sub-clauses (i), (ii) and (iii) and no evasion of payment of customs duties or taxes leviable thereon is 'involved, the fact that the foreign currency was originally imported from a route other than the specified route, would not constitute smuggling. We may also observe that it is a matter of common knowledge that the Government of Pakistan has allowed Afghani immigrants in millions come into Pakistan from unspecified routes and, therefore, there is tacit permission on the part of the Government to allow the import of belongings of the immigrants into Pakistan by unspecified routes. There is nothing contrary on record to the averment of the petitioner that the above Irani Rials were the sale proceeds of their business which his father had brought while immigrating to Pakistan. It has also come on record that the petitioner's father after few days from the date of the petitioner's arrest died on account of heart attack after learning about the above incident.
21. ' The above-quoted observation of the honourable Supreme Court of Pakistan from the unreported order, in our view, cannot be pressed into service in the instant case for more than one reasons, namely, (i) that the question whether first part of clause (s) of section 2 of the Act controls the latter part, was not brought to the notice of the Honourable Judges of the Supreme Court ; (ii) that the above observations are contained in an order refusing the leave against a judgment of conviction in a criminal proceeding, whereas, we are dealing with the departmental proceeding relating to confiscation, which are independent ; (iii) that the latest view of the Honourable Supreme Court which is of a Full Bench of 1986 and, to which, the learned Judge who had written the above leave refusal order, is a party, seems to be contrary to the earlier view; (iv) that the instant case is more akin to the above-reported judgment of the Honourable Supreme Court of 1986, i,e, possession of foreign currency on the date of seizure is involved and not the importation and (v) the above Supreme Court case of 1986 also arises out of departmental proceeding of confiscation of the foreign currency seized, whereas, the above refusal leave order, as pointed out hereinabove, had arisen out of the criminal prosecution.
11. The only question which remains to be touched upon is as to whether the conviction recorded under section 156 (1) (89) of the Act by the learned Special Judge, Quetta/Foreign Exchange Tribunal and which conviction has been maintained by this court in Customs Appeal No, 2 of 1984 and in which, it has been held that since the petitioner had brought D the foreign currency from unspecified route, he committed the offence of smuggling, in any way constitute res judicata as to debar this Court from taking a different view in this writ petition. In this regard, it may be pertinent to refer to the case of Adam v. Collector of Customs, Karachi and another (1) in which the Honourable Supreme Court of Pakistan while dealing as to the nature of the two proceedings as follows :- "The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the Customs authorities. The proceedings taken by the Customs authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for purpose of revenue and are regarded as proceedings of a civil nature, despite their penal character. The Sea Customs Authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purpose of supporting a plea of double jeopardy.
22. 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 commission of the alleged offence and entailing a punishment for the same. Both are concurrent remedies but each
(1) PLD 1969 SC 446 is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. The contention of the learned counsel for the appellant, therefore, that adjudication proceedings by the Customs Authorities and the prosecution of the offender in a criminal Court both of which are based on a common single act amount to "double Jeopardy" is wholly misconceived.
23. ' The above view has been reiterated in the above recent judgment of the Honourable Supreme Court, reported in PLD 1986 SC 191 The relevant observations are as follows - "PARA. 1I: ' The other contention advanced by the learned Deputy Attorney-General was that the prosecution proposed to be launched against the respondent on the same facts has been seriously prejudiced by the High Court having interfered with the adjudication proceedings taken against the respondent. The apprehension entertained by the learned Deputy Attorney-General is legally unfounded and untenable. It has been held by this Court in Adam v. Collector of Customs PLD 1969 SC 446 that the criminal prosecution of a person who commits an offence under the Sea Customs Act in relation to the goods which are seized under the said Act by the Customs Authorities, fall in a separate category. While the confiscation proceedings taken by the Customs Authorities are in the nature of departmental proceedings in condemnation of goods for the purpose of revenue, the proceedings for criminal prosecution of a person who commits an offence under the Act in relation to those goods, are judicial proceedings for determination of the guilt of the person concerned for commission of the alleged offence and entailing the punishment for the same. It was held that both are concurrent remedies but each is independent of the other and, therefore, they cannot be deemed to be mutually exclusive. They can proceed simultaneously and neither can remain under suspension for the sake of the other. This decision is sufficient to dispel any doubt entertained by the department in proceeding with the trial of the accused concerned with the goods involved in this case."
12. We are, therefore, inclined to hold that the above judgments recorded against the present petitioner in the aforesaid criminal case do not constitute res judicata for the purpose of the present Constitutional Petition for the reason that the criminal prosecution and the departmental E proceedings for confiscation are independent from each other, the former being judicial proceedings, whereas the latter being departmental proceedings in condemnation of the goods for purpose of revenue. In this view of the matter, it is open to us to take contrary view on the basis of the consideration of the relevant provisions of the Act and the Notification.
13. Since the impugned orders of confiscation of the foreign currency in question are based on the grounds, which are not sustainable in law as highlighted hereinabove, the same cannot be said to have been. Passed with lawful authority, and, hence, they are not sustainable in law. We, therefore, allow the above petition and declare the impugned orders as being without lawful authority and of no legal effect. We would direct the respondents to restore to the petitioner the above confiscated 7 lacs Irani Rials or equivalent Pak rupees i. e. Rs, 1,10,000 as mentioned in the Writ Petition. However, we stay the operation of this judgment for a period of 60 days in order to enable the official respondents to obtain a stay order from the Honourable Supreme Court of Pakistan, in case, they wish to challenge this judgment.
24. ' The petition stands disposed of in the above terms with no orders as to cost.