1. ' MUHAMMAD HALEEM, C.J.--Leave to appeal was granted to give an authoritative pronouncement on the interpretation of two independent jurisdictions, that is, proceedings for adjudication before the Customs authorities and criminal prosecution before the Special Judge, Customs, concerning the same set of facts in the context of section 179-A of the Customs Act, 1969.
2. ' On the receipt of secret information that the smuggled goods were being transported in a Toyota Car No,LEO 8254, it was intercepted on 29-8-1976 at 9:00 a.m. By a party comprised of Sultan Muhammad Asghar, Deputy Superintendent of Police, New Anarkali, Lahore, exercising powers of a Collector of Customs, Haji Muhammad Aslam, Deputy Superintendent (Rangers), Captain Abdul Jabbar and other officials of Pakistan Rangers, while it Was proceeding towards the Ravi Bridge from the side of Lahore City. It was driven by Muhammad Sarwar and one Israr Iqbal was sittins with him on the front seat. After recording grounds for the search under section 171 of the Customs Act, 1969 a copy of which was given to Muhammad Sarwar, the car was searched in the presence Of Haji Muhammad Aslam, Deputy Superintendent of Police, Muhammad Tufail a passer by, Zulfikar Ali, Sub-Inspector, Rangers and Muhammad Zaffar, ASI. From the dicky of the car two jackets each containing 100 renies of gold were recovered. Each renie weighed 10 tolas and the total weight of these renies was 2,000 tolas. Further two bundles of Pakistani currency notes amounting to Rs,2,00,000 were also recovered and taken into possession. The renies recovered bore the following seals: "Johnson Methy 999.0 London 10 Tolas"
3. "Credit 999.0 Suisse 10 Tolas CH ASSAYEUR FOUNDEUR"
4. An FIR was accordingly lodged at Police Station Shandara against Muhammad Sarwar and Israr Iqbal under section 156(1)(89) of the Customs Act and both of them were arrested.
5. ' Muhammad Sarwar thereafter led the Police Officers and other officials of the Pakistan Rangers to Bungalow No,137-B Gulberg-III, Lahore, from where cash amounting to Rs,95,67,705 and a Volks Wagon Car No,KCC-4031 were recovered. Muhammad Sarwar then took the Customs party and the Rangers to Bungalow No,5-A-1, Model Town, Lahore, from where- 600 renies of gold, each weighing 10 Toles, lying in jackets in an almirah of a room, were recovered. These renies bore the marks as under:- "Swiss Bank Corporation 999.0"
6. "Johnson Mathy 999.0 Kib Dib 19 Toles."
7. ' A Chevrolet car No,MY-574 and a mare with a saddle were also seized.
8. ' Muhammad Sarwar further took the Customs party and the Rangers to Quarter No,140 in Block No,11, Township Scheme, Lahore, which was occupied by his brother Atta Muhammad. From this quarter cash amounting to Rs,10,00,000 and 15 wooden boxes containing 8,555 watches were taken into possession. Thereafter two other cases were registered in respect of these recoveries. In each of these cases Muhammad Sarwar alongwith Abid Hussain and Muhammad Asghar were tried for offences under 156(1)(89) of the Customs Act, 1969, pursuant to the challan submitted before the Special Judge (Customs), Lahore, on 25th of January, 1977.
9. ' There is no dispute before us in regard to the seizure of watches or the vehicles which, by passage of time, have turned into scrap.
10. ' The Deputy Collector, Customs, Lahore issued notices under section 180 of the Customs Act, 1969 for initiating adjudication proceedings in regard to the goods seized to Seth Abid, 'Muhammad Sarwar, Israr Iqbal, Atta Muhammad, Ahmad Wali, Muhammad Younus and the owner of seized car No,KCC-4031 to show cause as to why they should not be penalised and the goods seized be not confiscated under clauses 8 and 89 of section 156(1) and section 157 of the Customs Act, 1969.
11. ' Israr Iqbal stated that he was innocent and was in the house as a guest on the date of his arrest when it was raided. Ata Muhammad pleaded that he had gone to the house on being informed that it was raided and he was also arrested although he had nothing to do with the smuggled goods. Ahmad Ali took the stand that he was a Chowkidar and had nothing to do with the smuggled goods. Muhammad Sarwar claimed the currency and the gold as belonging to him. As for the watches he stated that they were given to him by someone with assurance that he had genuine receipt about the import of those watches. But before he could obtain the receipt, the house was raided and the watches were seized. He further stated that he worked with Seth Abid Ali till 1965 and thereafter he started his own business.. He owned race horses and had earned lot of money from the races.
12. ' The Adjudicating Officer held that the vehicles and the mare were used for transporting smuggled goods and that at the time of seizure of the goods all those arrested stated that the goods belonged to Seth Abid and that they were his workers. Further as to the seizure of Pakistani currency amounting to Rs,95,67,705 from house No,137-B, Gulberg III, Lahore, Ahmad Ali before the Special Judge claimed it to be his while he had altogether disowned the money before the Adjudicating Officer. Seth. Abid, however, did not appear before the Adjudicating Officer and absconded since after the detection and seizure of -the goods. As the Adjudicating Officer found the goods to be smuggled, he passed the following order: "Taking into consideration the circumstantial evidence and all other related aspects of the case, I order outright confiscation of the seized goods, i.e,, gold, watches and currency under section 156(1), Clause 89 of the Customs Act, 1969, and vehicles, mare, jackets and waistcoats under Section 157 ibid. In addition to the aforesaid outright confiscation of the seized) goods, 1 further impose personal penalties of Rs,10,50,00,000 on Seth Abi-d, Rs,2 Crores on Muhammad Sarwar Khan, Rs,10 Lakh (Rupees ten lakhs) on Atta Muhammad, Rs,10 lakhs (Rupees ten Lakhs) on Ahmad Wali and Rs,5 Lakhs (Rupees five lakhs) on Israr lqbal."
13. ' The appeal against the above order before the Collector was modified by order dated 20-1-1985' to the extent that the gold and the watches stood confiscated. The two cars and the mare which were seized from the premises were also released to their lawful owners. The seized Pakistan currency was released as there was no evidence to establish that this money was acquired directly by the sale of smuggled goods or earned as a consequence of some specific transactions of smuggled goods. The amount of penalty imposed on Muhammad Sarwar and 'Atta Muhammad was also-reduced. Lastly, the Collector held that as regards Abid Hussain there was no concrete evidence to establish his connection with the seized gold, watches or the currency; as such "he cannot be legally arrayed as an accused in the smuggling or possession of the subject goods."
14. Accordingly, he was absolved of the charges and the penalty imposed on him was recalled.
15. ' The revision filed against the order dated 20-1-1985, before the Central Board of Revenue, Government of Pakistan, failed in so far as the lawful possession of gold and watches was concerned but the quantum of penalty was reduced by fifty per cent. This order is dated 20-4- 1986.
16. ' Muhammad Sarwar thereupon filed a Constitution petition to challenge the orders passed by the Deputy Collector of Customs dated 13-12-1976, the Collector, Central Excise and Land Customs dated 3-1-1985 and the. Member, Board of Revenue dated 20-4-1986.
17. ' Coming now to the trial of Muhammad Sarwar, Abid Hussain and Muhammad Asghar by the Special Judge (Customs), Lahore for an offence under section 156(1)(89) of the Customs Act, 1969, the Special Judge after recording evidence acquitted them on 7-2-1979 holding as under: "The result of the above discussion is that the prosecution has failed to prove any offence against Abid Hussain, Muhammad Asghar and Muhammad Sarwar accused. Muhammad Sarwar accused has 8wned the case property. He has discharged his onus which lay on him. No case stands proved against the accused persons. I, therefore, acquit them.
18. ' The renies Exhibits D1, D-2 and D-3 be returned to Sarwar accused after the expiry of the period of limitation for filing appeal or revision or after the decision of appeal or revision, as the case may be."
19. ' Another case, in which Muhammad Sarwar and 22 others were also tried under section 156(1)(89) of the Customs Act consequent upon an F.I.R. No,573, dated 29-8-1976 having been lodged at Police Station, Shandara, was also decided on 7-2-1979 by the Special Judge, Customs, Lahore. The charge against the accused persons other than Muhammad Sarwar was that they had aided, abetted and assisted Abid Hussain accused in the act of smuggling in different manners. This case also ended in an acquittal. The operative part of the judgment is as under: "The above discussion shows that prosecution has also failed to prove any offence against the remaining accused Anwar Mahmood, Anwar Masood, Abdul Halim, Abdul Hakim, Ahmad Wali Abid Hussain, Sardar Khan, Hail Ghulam Muhammad, Nehmat Ali, Mashkoor Ahmad and Khurshid Ahmad. The prosecution has failed to make out, any case against any of the accused. They are, therefore, acquitted.
20. ' The renies D-1, D-2 and D-3 (in Case No,168/77) be returned to Sarwar accused after the expiry of the period of limitation for filing appeal or revision or after the decision of appeal or revision, as the case may be."
21. ' The third case arising from F.I.R. No,228, dated 29-8-1976 registered at Police Station, Model Town, Lahore, for an offence under section 156(1)(89) read with section 178 of the Customs Act against Muhammad Sarwar, Atta Muhammad and Abid Hussain was also tried before the Special Judge, Customs, Lahore, which ended in their acquittal by judgment dated 7-2-1979. The operative part of the judgment is as under: "The result of the above discussion is that the search and seizure proceedings have been found to be illegal and as such Atta Muhammad and Sarwar accused cannot be prosecuted on the basis of those illegal searches and seizures. There is no evidence against Abid Hussain accused and no case stands proved against him.
22. ' As observed above, the prosecution case fails against all the 3 accused. They are, therefore, acquitted."
23. ' Appeals were filed against the acquittals in these cases before the High Court on 12-3-1979.
24. Subsequently, the Deputy Solicitor, Government of Pakistan, Ministry of Law and Parliamentary Affairs by letter dated 22-12-1981 conveyed the decision of the Federal Government to withdraw the appeals to the State Counsel who acted accordingly. The Deputy Attorney-General withdrew the appeals on 16th April, 1982.
25. ' Here at this stage it would be pertinent to mention the insertion of section 179-A in the Customs Act, 1969 by the Prevention of Smuggling Act, 1977 with effect from 16th May, 1977. It 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 case where the owners or persons-in-charge 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."
26. ' This section was omitted from the Act by the Finance Ordinance, 1979, with effect from 28th June, 1979.
27. ' The High Court in its judgment dated 1-11-1987 reproduced conclusions arrived at by the Special Judge while acquitting Muhammad Sarwar and one such needs special mention: "It stood clearly established that the petitioner was a man of means, that he had made huge sums from business etc. , that he had purchased about 8,500 tolas of gold ornaments from Khalid Javed Butt DW 7 during the period 1970 to 1973, that he had got the said gold refined and converted into gold renies bearing stamps of foreign manufacturers from Muhammad Latif, Jeweller DW 8, and that the gold renies with stamps of foreign manufacturer made by the said Muhammad Latif OW 8 in a test demonstration in Court, out of some gold bangles supplied to him, were so similar to the gold renies alleged to have been recovered from the petitioner, that they could not even be distinguished by Mr. N.M. Butt, Superintendent, Assay Office, Pakistan Mint CW 2."
28. ' In regard to the orders of the Adjudicating authorities, it was contended that the provisions of section 179-A of the Customs Act were applicable to the case when the appeal and revision of the petitioner were being heard by the Collector (Appeals) and the Additional Secretary Finance, on behalf of the Federal Government, and the findings of the said two officers that the section was not applicable, was illegal and unwarranted. In this connection reliance was placed on section 6 of the General Clauses Act on the basis that a vested right accrued to the petitioner to have his appeal decided subject to the decision of the Special Judge Customs and this right was not lost by the repeal of the section on 28-6-1979. In the alternative it was contended that even if section 179-A was not applicable still the order of the Adjudicating authorities being "administrative" in nature should yield to the judicial order in regard to the same set of facts.
29. ' The respondents resisted the first argument on the basis that section 179-A was repealed when the Collector heard the appeal and the Member, Board of Revenue decided the case, and, therefore, the benefit of this section cannot be claimed. As for the alternative argument, it was pleaded that the two jurisdictions were different. In one the onus is on the prosecution and the object is to punish an offender and in the other it is on the petitioner to show that his possession was not unlawful and the object of the proceedings is to confiscate the goods if the petitioner is unable to discharge the onus. Further the two proceedings are different in nature and in different forums and if such a course is allowed it will circumvent the requirement of section 179 of the Customs Act whereunder a burden is placed on the accused to show that the goods are not smuggled. Therefore, the, benefit of the findings of the Special Judge were not relevant in adjudication proceedings before the Customs authorities.
30. ' After dealing at length with the sumbissions raised for and against the propositions, the High Court reached the following conclusion: "The upshot of the above discussion is that the three impugned orders ordering confiscation of the gold and imposing penalty on the petitioner are illegal, null and void and of no legal effect, as they appear to be based, on no evidence. In any case, they are against the principles of natural justice and jurisprudence, in that they tend to defeat the judgments given by the learned Special Judge, Customs, in favour of the petitioner holding that the gold was not smuggled, without distinguishing the findings of the learned Special Judge, Customs, either on law or on strong and incontrovertible facts. Still further they are in utter disregard of section 179-A of the Customs Act, which was applicable to the case, at the stage of appeal and revision."
31. ' And declared the impunged orders to be void and of no effect.
32. ' Section 179-A was enacted to provide relief against double jeopardy. It was, therefore, that 'the order of adjudication under section 179 was made subject to the decision of the Special Judge and of the Special Appellate Court in appeal or revision, if any, by reason of the non-obstante clause in the opening part of the section, namely "notwithstanding anything contained in section 179, section, 181 or section 182 or in Chapter XIX. The words "if any" after the words B "appeal or revision" are of significance in that the decision of the Special Appellate Court is to prevail over the decision of the Special Judge if an appeal or revision is filed and decided on merits and the order of adjudication shall be subject to it. However, if no appeal or revision is filed then the decision of the Special Judge holds the field and attains finality.
33. ' It is clear from the facts of the case that the order of the Deputy Collector of Customs confiscating the seized goods and imposing the penalty was passed on 13-12-1976 before section 179-A was inserted in the Customs Act, 1969. It was, accordingly, unaffected in the absence of the section. And while the appeal against this order was pending the orders of acquittal were passed by the Special Judge in all the three cases on 7-2-1979. The appeals against the orders of acquittal were filed on 12-3-1979 during the continuance of the section which was repealed with effect from 28-6-1979.
34. However, the appeals were withdrawn on 16-4-1982 after the section had been repealed.
35. ' Accordingly, in terms of clause (e) of section 6 of the General Clauses Act, the benefit of acquittal accrued under section 179-A continued as if the section had not been repealed till such time as the appeal was not decided and upon its decision on merits, if the acquittal was upheld, the order of adjudication in terms of/ section 179-A would be subject to it. Conversely if it was reversed then the order of adjudication would be in conformity with it.
36. ' Here it may be mentioned that the orders of acquittal by the Special Judge took effect from the moment they were pronounced subject, however, to the decision of the Special Appellate Court in appeal or revision. But as the appeals were withdrawn, the orders of acquittal assumed finality as from the date they took effect, and in terms of clause (c) of section 6 of the General Clauses Act a vested right accrued to the appellant to have the benefit of the orders of acquittal as against the order of adjudication in appeal and revision on the same footing as if no appeals were filed to challenge these orders of acquittal.
37. ' In this view of the matter, the order passed in appeal and revision in the hierarchy of adjudication proceedings had to be in conformity with the order of acquittal. And as no effect was given to the orders of acquittal, the High Court was correct in holding that they were void and of no legal effect.
38. The alternative argument raised before the High Court does not arise before us.
39. ' For the foregoing reasons, we would uphold the judgment of the High Court and dismiss the appeal. There will be no order as to costs.