1. ' MUKHTAR AHMAD JUNEJO, J.---Leave to appeal is sought against a judgment dated 18-6-1995 delivered in Writ Petition No,107 of 1994 by the Peshawar High Court.
2. ' On 22-5-1983 at 12-30 p.m. 48 bars of silver weighing 27818 to lass were recovered from truck No,3115/MR coming from Jamrud side and heading for Karachi, after it was stopped near Hayatabad and driven to Customs Office near Peshwar Cantonment Railway Station. Recovery was effected under customs Act by a raiding party consisting of Customs Mobile Squad No,1, Peshawar, Central Excise and Land Customs and Anti-Smuggling Staff. Driver of the truck, namely, respondent Sher Ahmed was arrested and a case under section 156(1)(89) of the Customs Act was registered at Police Station Hayatabad on complaint of the Deputy Superintendent, Customs Mobile Squad No,1, Peshawar. After investigation driver Sher Ahmad and one Abid Hussain, a goldsmith, were challenged in Court of the Special Judge Customs, Taxation and Anti-Smuggling at Peshawar for the offences punishable under sections 156(89) and 178 read with section 2(s) of the Customs Act.
3. ' Learned Special Judge acquitted Abid Hussain under section 265-K of Cr.P.C. On 17-2-1993 and proceeded with trial of Sher Ahmad. At conclusion of the trial, learned Special Judge under his judgment dated 22-8-1993 acquitted Sher Ahmad and ordered the case property viz. 27818 tolas of silver to be returned to the respondent.
4. ' Earlier on 14-3-1984 the Collector of Central Excise and Land Customs under his order of even date, dismissed the plea of respondent Sher Ahmad that the seized silver was locally purchased in a legal manner and ordered the same to be outrightly confiscated under section 156(8)(89) of the Customs Act alongwith the vehicle. Said order dated 14-3-1984 was set aside by the Member Customs (Judicial) who, under his order dated 20-3-1986, remanded the matter to the Collector, Customs and Central Excise, Peshawar. The latter under order dated 4-9-1986, upheld the order dated 14-3-1984 and directed confiscation of the silver and the truck under section. 156(8)(89)
5. Customs Act and under section 157, Customs Act, respectively. Said order dated 4-9-1986 was challenged before the C.B.R. Under Appeal No,1(120)-Cus.App1/86, which was dismissed on 23-7- 1988 by the Member, C.B.R. Customs and Excise (Judicial). Respondent Sher Ahmed filed Writ Petition No,107/94 in the Peshawar High Court challenging the orders dated 4-9-1986 and dated 23-7-1988 passed by the Collector and the Member, CBR respectively, and prayed for a direction about return of silver to him. Said petition was disposed of on 18-6-1995 under the impugned judgment, by which the Collector of Customs and the Member, CBR and the Government of Pakistan were directed to comply with the judgment of the Special Judge Customs, having been maintained by the High Court in Criminal Appeal No,144/93 on 18-12-1994. Under the judgment dated 18-12-1994 the High Court dismissed said Appeal No,144/93 against acquittal of Sher Ahmed but did not pass any order in respect of return of the seized silver, except that an observation was made that no case of smuggling was made out. Hence this petition.
6. ' Mr. Abdul Latif Yousafzai, learned counsel for the petitioners, argued that a property which was seized under the Customs Act cannot be disposed of by a Criminal Court under section 517 of Cr,P.C. At conclusion of a Trial. In support the learned counsel referred sections 168 and 180 of Customs Act and cited the cases of Adam v. Collector of Customs, Karachi (PLD 1969 Supreme Court 446), Muhammad Shahzad and another v. Director-General, Pakistan Coast Guards and others (1989 MLD 536), The State v. Ghulam Jaffar etc. (PLD 1970 Peshawar 66) and Assistant Director of Customs v. Muhammad Afzal Khan (PLD 1964 (W.P.) Peshawar 178).
7. ' Mr. Abdul Hakeem Kundi, learned counsel for respondent Sher Ahmed argued that the respondent was acquitted after regular trial in the course of which evidence was recorded and hence the Trial Court after holding that the seized silver was not smuggled, could order disposal of the same. In support the learned counsel cited the case of Muhammad Sarwar v. Federal Government of Pakistan and others (1988 PCr.LJ. 213) decided by the Lahore High Court on 1-11-1987.
8. ' In the normal course of things a Criminal Court is competent, at conclusion of the trial, to order disposal of the case property under section 517 of Cr.P.G. In the case of Adam (PLD 1969 SC 446) it was held by this Court that the intention of the Legislature was that the disposal of the goods seized under the Sea Customs Act is left entirely in the jurisdiction of the Customs Authorities and that the proceedings taken by the Customs Authorities for 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 purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character. In the case of Muhammad Shahzad (1989 MLD 536) the High Court of Sindh took view that mere fact that the accused have been acquitted in criminal cases, would not absolve their civil liability under the Customs Act, as the object of criminal proceedings is to punish, whereas the object of proceedings on the revenue side is to realize the dues. In the case of Ghulam Jaffar (PLD 1970 Peshawar 66) the view taken was that the question of confiscation of goods or otherwise was entirely within the statutory jurisdiction of the Sea Customs Authorities under item 81 of section 167 and the same was not referred to the Criminal Courts and it was outside the jurisdiction of the Criminal Courts. In the case of Assistant Director of Customs v. Muhammad Afzal Khan (PLD 1964 (W.P.) Peshawar 178) the view taken was that the power of confiscation vests exclusively in the Customs Authorities and the Magistrate who is called upon to try cases mentioned in items 8 and 81 of the Schedule to section 167 of Sea Customs Act, is not at all empowered to make any order in regard to release of the vehicle in which smuggled goods had allegedly been carried, and such power is given to a Magistrate only when seizure is made under section 523 of the Cr.P.C. And not under the Sea Customs Act. In the case of Muhammad Sarwar (1988 PCr.LJ. 213) cited by Mr. Kundi, the view taken was that the proceedings before the Special Judge are judicial proceedings for determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment for the same, whereas the proceedings before the Customs Officers for the confiscation of goods, are departmental proceedings which are not judicial but quasi-judicial. This authority also leans in favor of the petitioners. There is need of an authoritative pronouncement by this Court on the subject at issue, which is of public importance.
9. Consequently leave to appeal is granted to consider, whether a Criminal Court trying an accused under the Customs Act can, at the time of acquitting the accused, restore to him the goods allegedly smuggled.
10. 1996 SC M.R 403 [Supreme Court of Pakistan] Present: Raja Afrasiab Khan, Mukhtar Ahmad Junejo and Muhammad Bashir Khan Jehangiri, JJ GOVERNMENT OF N.-W.F.P. Through Member, Board of Revenue, Peshawar and -3 others---Petitioners versus WAHAB GUL and 4 others---Respondents Civil Petition for Special Leave to Appeal No, 125-P of 1995, decided on 15th November, 1995.
11. ((In appeal from the judgment of the Peshawar High Court, Peshawar, dated 16-10-1994 passed in Civil Revision No, 484 of 1993).
12. Civil Procedure Code (V of 1908)-- ----0. V, R. 26-A & O.IX, R. 13--Constitution of Pakistan (1973), Art.185(3)---Ex parte decree--- Application for setting aside ex parte decree, dismissed up to the High Court-Validity-Defendants raising plea that even if it was conceded that defendants had been proceeded against rightly, Trial Court had erred to decree plaintiffs' suit without recording any evidence particularly when substantial rights in landed as well as constructed property of defendant (Government) was involved---Supreme Court granting leave on basis of Shamroz Khan's case (PLD 1978 SC 89) wherein it was maintained that in exercise of its discretion, whether Court should decree plaintiffs' claim against defendants after recording evidence or without recording evidence and that like all discretions vested in Court, such discretion ought to have been exercised judiciously' which had not been so exercised by Trial Court--Leave to appeal was granted in circumstances. Ap. 405] A ' Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 rel. .
13. ' Fateh Muhammad Khan, Advocate Supreme Court with Haji A.Q. Mazhar, Advocate-on-Record for Petitionerd. Nemo for Respondents.
14. ' Date of hearing: 15th November, 1995.
15. ' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal is directed against the decision of a learned Single Judge of the Peshawar High Court, Peshawar, made in provisional jurisdiction under section 115 of the Code of Civil Procedure, 1908, refusing to interfere with the order of the learned Additional District Judge, Kohat Camp Hangu, dated 11-5-1993 whereby he upheld the judgment and ex parte decree in favor of Wahab Gull and others, respondents, against the Government of N.-W.F.P and others, petitioners. The ex parte decree aforesaid was obtained by the respondents in a suit which they had filed against the Government of N.-W.F.P and three others for a declaration that they were the occupancy tenants in possession of the disputed premises and that the petitioners had illegally altered the earlier entries and described the respondents as tenants-at-will in the subsequent Jamabandis. They also claimed declaration to their entitlement to receive compensation for a portion of the suit land on which the respondents had constructed the building of Vocational Institute without the consent of the respondents". In the alternative, the respondents had prayed for possession of the premises by demolition of the construction.
2. The impugned order of the High Court reveals that defendants Nos.1 and 3 were represented through A.D.K. On 4-12-1986 whereas defendants Nos.2 and 4 having absented themselves were served through fresh notices for 31-1-1987. Having failed to put up the attendance, they were ordered to be served through the Court notice published in Daily Mashriq, Peshawar. As they did not enter appearance in the Court despite publication of the said notice, they were proceeded against ex parte on 19-2-1987. The Provincial Government through Collector had filed written statement on 26-2-1987 through A.D.K: giving rise to some issues. The case was posted to 12-3-1987 for filing the list of witnesses but as the A.D.K. Was again absent the case was posted to 2-4-1987 on which date no one appeared on behalf of the petitioner-Government, therefore, the learned trial Court decreed the suit ex parte against all the defendants. On 23-11-1989 an application on behalf of the petitioner-Provincial Government was moved through A.D.K. For setting aside the expanse decree. Notices were accordingly issued to the respondents for 9-12-1989. The parties entered appearance. Therefore, proceedings were adjourned to 25-1-1990 for filing the replication on which date the reply was filed. The case was then fixed for 22-2-1990 for arguments. On this adjourned hearing again there was none to represent the petitioner-Government in the Court, therefore, the application for setting aside the ex parte decree was dismissed in default. On 12-12-1991 another application was moved for setting aside the ex parte decree. After two adjournments the learned trial Judge dismissed the application on the grounds. Firstly that the application for setting aside the ex parte decree was not maintainable, in that, the petitioner-Government ought to have, as a first step, moved for restoration of their earlier application rather than to have the ex parte decree set aside and secondly, that the application was "miserably time-barred". The petitioner- Government then went in appeal and a learned Additional District Judge, Kohat, Camp Hangu, vide his order dated 11-5-1993 concurred in both the grounds that found favor with the learned trial Judge in sustaining the ex parte decree passed against the petitioner-Government. The order of the learned Additional District Judge was assailed, inter alia, on the ground that the learned trial Judge had passed the ex parte decree without any evidence being recorded and, therefore, the impugned judgment and decree was of no value in law. Similarly, Ground No,7 in the revision petition filed by the petitioners in the High Court was also to the same effect. The learned Judge in Chamber of the High Court as well as the learned Appellate Court had, however, not adverted to this substantial question of law in both the impugned orders.
3. Mr. Fateh Muhammad Khan, learned counsel appearing on behalf of the petitioners, contended that the provisions of rule 26-A of Order V, C.P.C. Prescribing the mode of service upon the Government officials in connection with the suits against the Government were not at all adhered to by the learned trial Judge, therefore, there was no legal justification for ex parte proceedings against the petitioners. We have not been impressed by this contention of the learned counsel. The A.D.K. Did enter appearance on behalf of the Provincial Government, therefore, any violation of rule 26-A supra would not be of any consequence.
4. The learned counsel for the petitioners next contended that even if it is conceded that the petitioners had been rightly proceeded against ex parte the learned trial Judge had erred to decree the suit of the respondents without recording any evidence particularly when substantial rights in the landed as well as constructed property of the petitioners-Government were involved.
16. In this context, reliance was placed on Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89) wherein it was held that in exercise of its discretion, whether it shguld decree the claim against the defendants after recording evidence or without recording evidence by the Trial Court and that like all discretions vested in the Court, this discretion ought to have been exercised judiciously which has not been so., exercised by the learned Trial Court.
5. Leave to appeal is, therefore, granted to consider the afore noted contention rose on behalf of the petitioners.
17. CMA. No, -P/1995.
18. ' The operation of the judgments and the decrees is suspended. Status quo in the meantime.