SAAD SAOOD JAN, J.--1 This order will dispose of Criminal revision No. 474 of 1968 and Writ Petition No. 2304 of 1983.
2. The facts having a bearing on these two matters are as follows: On 25th February, 1966 Zulifqar Ali and Muhammad Rafique, respondents in the criminal Revision, were arrested from Sooha Bazar, Lahore by the Police raiding party. On search of Zulifqar Ali certain pieces of gold of foreign origin were recovered. Subsequently, his house was also searched when at his pointing out some more pieces of gold were recovered. On the basis of these recoveries a case under the Land Customs Act, was registered against both respondents. They were tried by a Magistrate. He found them guilty of an offence under section 167 (81) of the Sea Customs Act and sentenced them to suffer rigorous imprisonment for a period of two years each. He also directed that the pieces of gold be also confiscated to the State. From the order of the learned Magistrate Zulifqar Ali and Muhammad Rafique preferred appeals before the Additional Sessions Judge. By his judgment, dated 1st April, 1968 the learned Additional Sessions Judge accepted the appeals, set aside the conviction sentences of Zulifqar Ali and Muhammad Rafique and directed that pieces of gold be returned to Walayat Ali, father of Zulifqar Ali.
Immediately after the recovery of gold, proceedings were initiated by the Collectorate of Customs.
By an order, dated 18th November, 1967 an Assistant Collector directed that the gold be confiscated. Zulifqar Ali filed an appeal before the Collector but without any success. He then filed revision petition before the Central Government. His revision was rejected on 18th November, 1975.
Together with his father, he has filed Writ Petition No. 2304 of 1983 to challenge the orders of the customs authorities.
4. The Central Government filed a revision petition against the order of the Additional Sessions Judge whereby the legality of the direction of the learned Additional Sessions Judge with regard to the return of gold to Walayat Ali has been questioned.
5. Both the matters stand to be resolved in accordance with the provisions of the Sea Customs Act, 1878. In the criminal revision it is contended on behalf of the Central Government that the learned Additional Sessions Judge was not competent to direct the return of the gold even after he had decided to acquit Zulifqar Ali and Muhammad Rafique. This contention must be upheld for it finds support from a decision of the Full Bench of the West Pakistan High Court, Peshawar Bench, reported as State v. Ghulam Jaffar PLD 1970 Pesh.
66. In this case the question for consideration was whether the powers of confiscation under the Sea Customs Act survived to the Customs Authorities even in a case where the Magistrate acquitted or discharged the accused holding that the property in question had not been a smuggled one. Respectfully following the view of the Peshawar Bench. I would set aside the impugned direction of the learned Sessions Judge. The criminal revision is disposed of accordingly.
6. The question whether the gold was of smuggled one or not was one of fact. Despite an opportunity given to him, Zulifqar Ali could not produce any documentary evidence before the Assistant Collector how he had obtained the gold. Consequently, the Assistant Collector held that the gold was of smuggled one. The petitioners have not placed before me. Any material to interfere with the said finding. I am, therefore, not prepared to interfere in the matter.
7. The writ petition is dismissed with no order as to costs.