Since a common question of law is involved in all the above special criminal acquittal appeals, filed under section 185-F of the Customs Act, 1969, read with section 417, Cr.P.C., they are being disposed of by a consolidated judgment.
2. The respondents shown against each of the appeals were persecuted for the offence under section 156(1)(8) of the Customs Act, 1969, for having smuggled Indian currency to Pakistan. All of them were separately sent up before Special Judge (Customs & Taxation), Karachi, who was of the view that there is no probability of the accused being convicted of any offence, and he consequently acquitted all of them under section 265-K, Cr.P.C. The Federal Government has challenged this finding recorded by the trial Court by, filing separate appeals against the respondents.
3. I have heard Mr. M. Naim-ur-Rehman's, learned Standing Counsel for the appellant, who has mainly contended that the cases referred to in the impugned judgment do not apply to the facts and circumstances of the present case.
4. Admittedly there was no restriction or prohibition for bringing in the foreign currency, and the following notification bearing NO.F.E.I/78-SB, dated 11th May, 1978, issued by the State Bank of Pakistan, providing that any person could bring into Pakistan, from any place out of Pakistan without limit any currency notes, makes the entire position clear:- 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."
5. This question was examined by the Hon'ble Supreme Court in the case of Central Board of Revenue and another v. Khan Muhammad, reported in PLD 1986 SC 192, and it was observed:- "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."
6. Again the question of foreign currency being imported from a route other than the specified route was examined by a Division Bench of the Baluchistan High Court in the case of Rahim Din v.
Collector, Central Excise and Land Customs and 2 others, reported in PLD 1986 Quetta 305, and was answered in the following words:- "Adverting to the above second ground, namely that since the petitioner had brought the foreign currency from unspecified route, it would amount to smuggling in view of sub-clause (i.e) 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 (i.e) 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."
7. The Collector, Central Excise and Land Customs and others challenged this judgment before the Hon'ble Supreme Court in the case reported as the Collector, Central Excise and Land Customs and others v. Rahim Din 1987 SCMR 1840, but leave to appeal was refused, and the view taken by the Division Bench of the Baluchistan High Court was affirmed.
8. All the above authorities apply with full force to the facts of the present case, and no exception can, therefore, be taken to the order of acquittal passed by learned Special Judge (Customs & Taxation), Karachi. Accordingly all the appeals having no merits, are dismissed in limine.