' AJMAL MIAN, ACTG. C. J.-This petition is directed against the orders, dated 8th April, 1984, 25th June, 198 , and 1st April, 1985, passed by the respondents Nos. 1, 2 and 3 respectively confiscating 65 lass Irani Rials equivalent to about Rs, 1,10,000 seized from the petitioner on 27th October, 1983, at the Balali Check Post of the Customs, while the petitioner was travelling in Bus No, QAB-9-45 and was proceeding towards Quetta. The brief facts leading to the filing of the above petition as per averments in the petition are that the petitioner a boy who is Afghan national, aged about 14 years at the relevant time had come alongwith his father, also an Afghan national, from Afghanistan via Chaman in September, 1983, and were lodged in Mohajir Refugee Camp in Roghani near Chaman and were issued Identity cards Annexure "A". They also received their Ration Card for drawing ration from the Camp (Annexure "D"). It has been averred that after their arrival in Pakistan, the petitioner and his father went to the Customs Department in Chaman to inquire about the changing of Irani currency. Thereupon, the Customs Department told them that the currency could only be changed by the State Bank in Quetta or by an Authorised Dealer there. It has also been averred that they were not-asked to fill in any form of declaration about the currency. It has been further averred that since the petitioner's father was very old man, he asked the petitioner to take the Irani Rials to Quetta where his Uncle Haji Saifuddin also an Afghan national would help him. With the above object, the petitioner boarded the above bus on 27th October, 1983, from his Mohajir Camp, near Chaman for Quetta and was stopped at several check posts on the way, but at the Balali Check Post, the petitioner among others, was searched in the Bus by the Customs Sepoy, who found the bulge of currency and asked the petitioner what it was. It has been asserted that thereupon, the petitioner told the Sepoy that it was Irani Tumans and that he was taking them for exchange in Quetta, but the Customs Officer took the currency and told that he would change it for him. But instead of changing, after several hours, he served a notice under section 171 of the Customs Act, 1969 (hereinafter referred to as the "Act") and the petitioner was arrested. It has been further averred that after a few days of the petitioner's arrest, his father expired on account of heart attack. After that the petitioner was issued a show-cause notice, dated 24th December, 1983, by the Deputy Collector Customs under section 156(1) (89) of the Act for contravening section 3(1) of the Import and Export (Control) Act, 1950, read with sections 2(s) and 16 of the Act and sections 5-8 of the Foreign Exchange (Regulation) Act. The above notice was contested by a reply dated 23rd January, 1984.
However, the learned Collector of Customs, the respondent No, 1, by his order, dated 8th April, 1984, ordered the forfeiture of the above currency. The petitioner went in appeal, but the same was dismissed by the Central Board of Revenue i. e. The respondent No, 2, by its rder, dated 25th June, 1984. The revision filed against the above order was also dismissed on the ground of delay in filing of the same by an order, dated 1st April, 1985, by the Secretary, Ministry of Finance, Islamabad, i. e. Respondent No,
3. The petitioner thereafter filed the present petition.
2. It may be pertinent to observe that while the proceeding before the Customs Officers was pending, the petitioner was proceeded with under sections 4, 8, 9 and 23 of the Foreign Exchange (Regulation) Act, 1947, before the learned Sessions Judge/Foreign Exchange Tribunal, Quetta which by its judgment dated 12th February, 1985, in Special Case No, 50 of 1983, convicted the petitioner under section 156(1) (89) of the Act and sentenced him to two years' R. I. And a fine of Rs, 1,000 and in default further R. I. For six months. The petitioner filed Customs Appeal No, 2 of 1985, which was disposed of by a learned Single Judge of this Court by a judgment dated 7th September, 1985, whereby the conviction was maintained, but the petitioner being a young man of hardly 17-18 years of age under section 5 of the Probation of Offenders Ordinance, 1960, has been enlarged on probation for 2 years on furnishing two sureties in the sum of Rs, 50,000 of 25,000 each on the condition that he would not repeat the offence.
3. In support of the above petition, Mr. Yahya Bakhtiar, learned counsel for the petitioner has urged as follows:-
(i) That since there was no restriction or prohibition for bringing in the foreign currency and on the contrary under Notification No, F. E. I/78-SB, dated 11th May, 1978 (hereinafter referred to as the "Notification") issued by the State Bank of Pakistan providing that any person could bring into Pakistan from any place outside Pakistan without limit any currency notes or bank notes other than unissued notes and notes legal tender in Pakistan, the petitioner was not guilty of smuggling in terms of section 2(s) and 156(8) of the Act;
(ii) That since there was no prohibition or restriction for bringing into Pakistan any foreign currency and as evasion of payment of custom duties or taxes was not involved, sub-clause (iii) of clause (s) of section 2 of the Act, was not attracted to; and
(iii) That since the proceedings before the Customs Authorities and before the Customs Tribunal were independent, the conviction recorded in the above criminal proceeding would not affect the present proceeding, ' On the other hand, Mr. Yaqub Khan Yousafzai, learned Advocate-General appearing for the official respondents has submitted as under:-
(i) That when the petitioner was arrested at the Balali Check Post, he was asked to make declaration, which he declined and, there- fore, he was not entitled to the benefit of the Notification; and
(ii) That since admittedly, the petitioner had entered into Pakistan by a route other than the route declared under section 9 or 10 of the Act, the bringing in the foreign currency from the unspecified route would constitute smuggling in terms of sub-clause (iii) of clause (s) of section 2 of the Act.
4. Before taking up the above contentions it may be pertinent to refer to the relevant provisions of the Act, namely, section 2(s), sections 9, 10, 16, 156(8), (9) and (89) and the Notification which reads as under:- "Section 2(s).-"Smuggle" means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon-
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances, or
(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the Official Gazette, which, in each case, exceed five thousand rupees in value, or
(iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station, and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly."
' Section 9. Declaration of Customs-Ports Customs Airports, etc.-Tbe Board may, by notification in the official Gazette, declare-
(a) the places which alone shall be customs-ports or customs-airports for the clearance of goods or any class of goods imported or to be exported;
(b) the places which alone shall be land customs-stations, for the clearance of goods or any class of goods imported or to be exported by land or in land waterways;
(c) the routes by which alone goods or any class of goods specified in the notification may pass by land or inland waterways into or out of Pakistan, or to or from any land customs station or to or from any land frontier;
(d) the places which alone shall be ports for the carrying on of coastal trade with any specified customs-ports in Pakistan; and
(e) what shall for the purposes of this Act be deemed to be a customhouse and the limits thereof."
"Section 10. Power to approve landing places and specify limits of Customs-Stations.-The Board may, by Notification in the Official Gazette-
(a) specify the limits of any customs-station, and
(b) approve proper places in any customs-station for the loading and unloading of goods or any class of goods."
"Section 16. Power to prohibit or restrict importation and exportation of goods.-The Federal Government may, from time to time, by Notification in the Official Gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land." {{TABLE}} Section 156(8)(9) & (89) .1 Section of the Offences Penalties Act to which offence has reference 1 2 3 fl/M"..+,./. =1101.1.011.01.111141M.I11.0,1111.161.111.1.....L.1
8. If any goods be smuggled Such goods shall be liable to con General into or out of Pakistan. Fiscation and any person con- cerned in the offence shall be liable to penalty not exceeding ten times the value of the goods; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding ten years and to fine not exceeding ten times the value of such goods, and, if the Special Judge in his discretion so desires, also to whipping: Provided that, in the case of such goods essential to the life of the community as may be notified by the Federal Government in the official Gazette, the sentence of imprisonment shall not be less than five years and the person convicted shall also be awarded sentence of whipping, and the whole or any part of his property shall also be liable to confiscation in accordance with the provisions of the Prevention of Smuggling Act, 1977.
1 2 3
9. (i) If any goods, not being goods referred to clause 8-are imported into or exported from Pakistan evading payment of leviable customs-duties or in violation of any prohibition or restriction on the importation or exportation of such goods imposed by or under this Act or any other law; or
(ii) if any attempt be made so to import or export any such goods; or
(iii) if any such goods be found in any package produced before any Officer of customs as containing no such goods; or
(iv) if any such goods be found either before or after landing or shipment to have been concealed in any manner on board any conveyance within the limits of any sea-port, air-port, railway station or other place where conveyances are ordinarily loaded or unloaded, or
(v) if any such goods, the exportation of which is prohibited or restricted as aforesaid be brought within a customs-area or to a wharf, with the intention of loading them on a conveyance for exportation in violation of such prohibition or restriction.
89. If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned ' in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods: Provided that if thes mug- such goods shall be liable to 15 & 16 confiscation; and any person-concerned in the offence shall also be liable to a penalty not exceeding two times the value of the goods. Such goods shall be liable con- General, fiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and, where the value of such goods exceeds ten thousand rupees, he shall further be liable upon conviction by a Special Judge, to imprisonment for a term not exceeding six years and to fine not exceeding ten times the value of such goods 2 3 gled goods be gold bullion and if the Special Judge in his or silver bullion the onus of discretion so orders also to proving the plea that such bul- whipping. Lion was obtained by processing or other means employed in Pakistan and not by smuggling shall be upon the person taking that plea." * e "Notification No, F. E. 1/78-SB. Import of Currency Notes.- In pursuance of the Notification of the Central Government No, F. 1(8)-EF/49, dated the 2nd May, 1949, and in supersession of the' State Bank of Pakistan Notification No, F. E. 3/60-SB, dated the 27th August, 1960, the State Bank of Pakistan is pleased to permit any person to bring into Pakistan from any place outside Pakistan without limit any currency notes or bank notes other than:
1. Unissued notes, and
2. Notes legal tender in Pakistan; Provided that he shall, if so required by the Customs authorities at the time of his arrival, make a declaration in the form prescribed by the State Bank of Pakistan in this behalf of the total amount of notes brought in." {{TABLE}}
5. It may be noticed that the above-quoted clause(s) of section 2 of the Act defines the word "smuggle" as means the bringing into or taking out of Pakistan in breach of any prohibition or restriction for the time being in force or evading payment of customs duties or taxes leviable thereon. It may further be noticed that sub-clauses
(1) and (ii) specify the items with the proviso that any other goods which may be notified by the Federal Government. The above items include currency, whereas sub-clause (iii) of the above clause (s) provides that the import of any goods by the route other than a route declared under section 9 or 10, shall also constitute smuggling. It may further be pointed out that proviso to sub-clause (iii) extend the scope of the term "smuggle" by providing that it includes an attempt, abetment or connivance etc. ' Whereas, under clause (c) of section 9, the Central Board has been empowered by a notification in the Official Gazette to declare the routes by which alone goods or any class of goods specified in the notification may pass by land or inland waterways into or out of Pakistan. It may also be noticed that under section 10 the Board has been authorised by a notification in the Official Gazette to specify the limits of any customs-station and approve places for loading and unloading of the goods.
' It may also be noticed that under section 16 of the Act, the Federal Government has been empowered by a notification in the official Gazette from time to time to prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land.
' Whereas, clause (8) of section 156, of the Act deals with the punishment for smuggling any goods into or out of Pakistan, and provides the punishment of confiscation and the imposition of penalty not exceeding ten times the value of the goods, and awarding of sentence by the Special Judge for a term not exceeding 10 years and fine not exceeding ten times the value of the smuggled goods. It also provides an embargo of minimum sentence of five years in respect of the essential goods to the life of the community. It may further be noticed that clause (9) deals with the importation and exportation of the goods with the object of evading the payment of customs duty on the importation or exportation of such goods and provides that such goods shall be liable to be confiscated in addition to the imposition of penalty not exceeding two times value of the goods involved.
' Whereas, clause (89) deals with the acquiring of possession of smuggled goods by any person without lawful excuse or its concealment or carrying, removing, depositing or harbouring. It provides penalty of confiscation and imposition of fine not exceeding ten times in case when the value of the goods does not exceed 10,000 rupees, but in case it exceeds the above value, the person having possession incurs the criminal liability of being awarded six years' R. I. And fine not exceeding 10 times of the value.
6. It may further be noticed that by the above notification, the Central Government permitted bringing into Pakistan from and place outside, without limit any currency notes or Bank notes other than (i) unissued notes and (ii) notes legal tender in Pakistan.
7. After having dealt with the relevant provisions of the Act and the Notification, we may dilate upon the case-law on the subject relied upon by Mr. Yahya Bakhtiar, learned counsel for the petitioner and Mr. Yaqub Khan, learned Advocate-General, Mr. Yahya Bakhtiar, learned counsel for the petitioner in furtherance of his above submission has referred to the following cases:-
(i) Begum Zarina Naz v. M. A. Rahman and 13 others reported in PLD 1975 Kar. 482 in which, a Division Bench of the erstwhile High Court of Sind and Baluchistan while construing section 2(s) (a) of the Act, read with SRO-1426(1)/73, dated 5th October, 1973, and section 14 of the Pakistan Coast Guards Act, 1973, held that since the cars are neither mentioned in section 2 (s), clause (a) or (b), nor in the Notification seizure of the Car as smuggled goods was illegal.
(ii) Jalil v. The State reported in 1978 P Cr. L J 155. In the above case, a learned Single Judge of the Sind High Court while construing sections 9 and 23 of the Foreign Exchange Regulation Act, 1947, read With Notification No, 1(I)-2-EF/56, dated 1st August, 1956, held that merely coming into possession of foreign exchange by itself does not constitute an offence. It was further held that the prosecution was bound to prove that the accused after becoming owner of foreign exchange failed to offer same for sale within one month of his acquisition as required under the above Notification and that since the prosecution had failed to prove the same, the accused was entitled to benefit of doubt.
(iii) S. Ch. Niaz Ahmad and others v. The State reported in PLD 1978 Kar. 774 in which, a Division Bench of the Sind High Court while construing sections 2(s) and 156(9) of the Act, held that mere fact of importation or exportation of certain goods being prohibited by law does not amount to smuggling. It was further held that in order to constitute smuggling, the goods must be notified by the Federal Government under section 2 (s) (a). It was also held that since "Charas" was not so notified, the same cannot be subject matter of smuggling, though the same may amount to an offence under section 156(9). It was also pointed out that clause (8) of section 156, and clause (9) of the above section 156, must run parallet and that the goods covered under the former clause cannot be the subject-matter of the latter clause and, if the above clauses are not so read, they will be destructive of each other.
(iv) Syed Shabbir Ahmed Shah v. Pakistan through Secretary to the- Government of Pakistan, Ministry Interior Defence, Islamabad and 3 others reported in PLD 1979 Kar.
68. In the above case, the view found favour with the learned Judges of the Division Bench in the above, reported case of 1978 was reiterated and it was held that since the cars were not notified item under section 2(s), the same could not have been the subject-matter of smuggling, notwithstanding the fact that the import thereof is prohibited under notification issued in exercise of power conferred by section 3(1) of the Import and Export (Control) Act, 1950. It may be advantageous to reproduce a passage from the above judgment which reads as follows:- "Page 71: ' The learned Deputy Attorney-General tried to pursuade us that the view taken in the aforesaid case is untenable in law for it ignores the broad definition of 'smuggling' given in the Customs Act which according to him would include any item import or export of which is prohibited by any law for the time being in force and not limited to articles specified in this clause or notified under this clause. This argument has been considered in the aforesaid case and we see no reason to depart from the view taken, for according to us sub-clauee (a) his to be read with clause (s) of section 2 for otherwise the former in isolation will be meaningless and further more the vital distinction between clauses (8) and (9) of section 156 of the Act will be totally lost. We, therefore, re-affirm the view taken in the aforesaid decision to which one of us is party "
(v) Salooka Steels Limited v. Director-General, Coast Guards of Pakistan reported in PLD 1981 Quetta 1. In the above case, a Division Bench of this Court while construing sections 2 (s) (b), 8, 9 and 10 of the Act held that a ship brought from any other route other than the declared under section 8 or 10 of the Act or from any place other than the customs-station, cannot be said to be a smuggled goods. The views taken by the Sind High Court in the above three cases were reiterated. While construing clause (s) o section 2 of the Act, it was pointed out that the first part of the above section .Controls the latter part. In this regard, it will b advantageous to reproduce the observations on the above point which read as follows:- "Page 7: ' This view was reiterated in Shabbir Ahmed Shah v. Pakistan PLD 1979 Kar. 68 and in unreported judgment in the case of Mahmood Alam v. Director-General Pakistan Coast Gua ds and others C. P. No, 745 of 1979. I am in respectful agreement with the views expresses by their Lordships of the Sind High Court in all these cases. I ma however add that the first part of clause (s) of section 2 of th Customs Act, which henceforth I will call the controlling part qualifies and controls the categories of goods listed in sub-clauses (a and (b). That means that every goods which are brought int. Pakistan, or are taken out of it, must be either prohibited/restricte goods or should be so brought in or taken out for the purposes o evading customs duties or taxes. Either of these two conditionmust be fulfilled by the categories of goods listed in sub-claues (a and (b), Sub-clause (b) is not relevant to the facts of this case But in order to illustrate the point I may say that prohibited/restric ted goods, if brought through unspecified routes, became smuggle goods in terms of this sub-clause ; and so also if they are brough such routes to evade custom duty or taxes."
(vi) Central Board of Revenue and another v. Khan Muhammad reporte' in