MUKHTAR AHMED JUNEJO, J.--1. Leave to appeal is sought against a judgment dated 18th June, 1995 delivered in Writ Petition No. 107 of 1994 by the Peshawar High Court.
2. On 22nd May, 1983 at 12.30 p.m. 48 bars of silver weighing 27818 tolas 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 Peshawar Cantonment Railway Station. Recovery was effected under Customs Act by a raiding party consisting of Customs Mobile Squad No. 1 Peshawar, Central Excise & 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 Ahmed and one Abid Hussain, a goldsmith, were challaned in Court of the Special Judge Customs, Taxation and Anti- Smuggling at Peshawar, for the offences punishable under Sections 156(1)(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 Ahmed. At conclusion of the trial, Learned Special Judge under his judgment dated 22.8.1993 acquitted Sher Ahmed and ordered die 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 Ahmed 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 along with the vehicle. Said order dated 14th March, 1984 was set aside by the Member Customs (Judicial) who, under his order dated 20th March, 1986, remanded the matter to the Collector, Customs & Central Excise, Peshawar. The latter under order dated 4th September, 1986, upheld the order dated 14th March, 1984 and directed confiscation of the silver and the truck under Section 156(8)(89), Customs Act and under Section 157, Customs Act, respectively. Said order dated 4th September, 1986 was challenged before the C.B.R, under Appeal No. l(120)-Cus. Appl/86, which was dismissed on 23rd July, 1988 by the Member C.B.R. Customs & Excise (Judicial).
Respondent Sher Ahmed filed Writ Petition No. 107/94 in the Peshawar High Court challenging the orders dated 4th September, 1986 and dated 23rd July, 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 18th June, 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 18th December, 1994. Under the judgment dated 18th December, 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.
5. 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 Vs. Collector of Customs, Karachi (P.L.D. 1969 Supreme Court 446), Muhammad Shahzad and another Vs. Director-General, Pakistan Coast Guards and others (1989 M.L.D. 536), The State Vs. Ghulam Jaffar etc. (P.L.D. 1970 Peshawar 66), and Assistant Director of Customs Vs. Muhammad Afzal Khan (P.L.D. 1964 (W.P.) Peshawar 178).
6. 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 Mohammad Sarwar Vs. Federal Government of Pakistan and others (PTCL 1988 CL. 172) decided by the Lahore High Court on lst November, 1987.
7. 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.C. 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 Collector, Customs & C.E. Vs. Sher Ahmed CL. 577 {Mr. Mukhtar Ahmed Junejo, J.} 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 Sind 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 Vs. Muhammad Ajzal Khan (PLD 1964 (WP) 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 Mohammad Sarwar (PTCL 1988 CL. 172) 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 at 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 favour of the petitioners. There is need of an authoritative pronouncement by this Court on the subject at issue, which is of public importance.
8. Consequently leave to appeal is granted to consider, whether a Criminal Court trying an accused under the Customs Act can, at the the of acquitting the accused, restore to him the goods allegedly smuggled.