MUHAMMAD BASHIR KHAN JEHANGIRI, J.- 1. This petition for leave to appeal is directed against the order of a learned Division Bench of Peshawar High Court, Peshawar, dated 7-3-1995 whereby the writ petition filed by the petitioner against the respondents was dismissed.
2. Briefly the facts are that the Customs Mobile Squad No. 1, Peshawar, intercepted on 26-6-1979 at 11-00 hours Car No. KL-19679 near Islamia College Check Post on Jamrud Road, Peshawar. The search of the car led to the recovery of, inter alia, 1146 gold coins of 4 Masha each and 392 gold coins of 8 Masha each bearing the inscription "Muhammad Raza Shah Pehlavi Mehar Arya: Shihinshah Iran 1255" from the rear seat of the car. There being no evidence of lawful import and possession of the said coins of foreign origin, the coins were seized under section 156(1)(8)(89) of the Customs Act (IV of 1969) (hereinafter called as the Act) read with section 2(s) ibid. The car aforesaid carrying the coins was also seized under section 157 ibid. The occupants of the car, namely, Ismail Khan and Janzada, were arrested and the case was accordingly registered. In consequence of the investigation that ensued, the seized gold coins were to be delivered to Sufi Goldsmith as per the directions of Auri Jan and Haji Mazar Khan of Landi Kotal. During the pendency of the adjudication proceedings, the accused, who had been challaned to Special Judge Customs and nation, N.W.F.P: Peshawar, in the criminal case, were acquitted of the charge. On 30- 11-1985 respondent No. 2 passed an order confiscating the seized 'gold coins' imposing personal penalty on Haji Mazar Khan, petitioner, amounting to Rs. 1,17,423. The car allegedly used in transporting aforesaid gold coins was also confiscated with an option of redemption on the fine of Rs. 20,000. The appeal filed by the petitioner before respondent No. 1 was accepted for fresh trial after giving the parties an opportunity of being heard. The grievance of the petitioner was that the so-called gold coins were not made of pure gold but were confirmed to be of 17 Carats by witnesses before the Special Judge Customs; that the Customs Department did not verify the ingredients of the seized coins from the Assayers of the Mint Department. It is further stated that the matter was referred to Gemstone Corporation which had no locus standi to perform the job of an Expert. Nonetheless, it was held by respondent No. 1 that the "original authority had convincingly repudiated the arguments put forth by the appellant" and that "the impugned order is correct and in fact does not merit any interference". Thus the appeal was dismissed. Feeling aggrieved, the petitioner moved a Constitutional petition in the Peshawar High Court, Peshawar, to have the orders of confiscation of the gold coins declared as without lawful authority and of no legal effect.
The respondents in their comments had controverted the pleas raised on the legal plane and repudiated the assertions on factual plane. It was argued before the learned Division Bench of the High Court that the impugned judgments of the respondents were without jurisdiction and of no legal effect as no show-cause notice had been served upon the petitioner and further that it had not been substantiated that the coins were of foreign origin and that they could at all be held to be of gold when there was no lawful report of the Assayer of the Pakistan Mint and that, in any case, the coins could not be confiscated being of 17 Carats gold.
3. The learned Judges of the Division Bench in the High Court reached the conclusion that perusal of the impugned judgments of the respondents as well as of the learned Special Judge Customs revealed that the petitioner had been served with a show-cause notice; had been given the opportunity of defence and; thereafter the impugned orders had been passed with jurisdiction and strictly in accordance with law procedure. It was further held that the order of the learned Special Judge acquitting the accused was of no avail to the petitioner as no order had been passed in respect of gold coins confiscated in the case. It was lastly observed that the petitioner was under legal obligation to have proved the burden that the gold coins were not of foreign origin which he had not been able to discharge. Resultantly, the writ petition was dismissed.
4. Mr. Muhammad Sardar Khan, learned counsel appearing on behalf of the petitioner, has reiterated before us that no show-cause notice in terms of section 180 of the Act was served upon the petitioner by the competent authority within the specified period of to months of the seizure and, therefore, the entire adjudication proceedings were vitiated and; that the impugned judgment/order of the learned Division Bench in the High Court does not conform to the standard laid down by this Court in: (i) The Federation of Pakistan and another v. Sardar Ali and others (PLD 1959 SC (Pak.) 25) and (ii) Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173). In this context, Mr. Sardar Khan submitted that serious questions, resolution of which involved conscious application of mind, were raised but none of them was attended to as required under the law. It was next contended by the learned counsel for the petitioner that the respondents had failed to prove positively that the gold coins in question were of foreign origin and where it was established on record that they were not so with reference to the judgment of the learned Special Judge, there existed no justification for holding that the petitioner had failed to discharge this 'obligation' before the 'competent authorities.
5. Leave to appeal is granted to consider the following questions of public importance-
(i) Whether it has been established before the adjudicating authority that the coins were of 'gold' particularly when the report of Assayer of Pakistan Mint had not been made available to the petitioner?
(ii)Whether the notice under section 180 of the Act had been served upon the petitioner, if not, whether statutory extension of the envisaged by section 168 thereof had been granted with reasons therefor?
(iii) Whether the disposal of the case of the petitioner was violative of the law laid down by this Court in the case of The Federation of Pakistan and another v. Sardar Ali and others (PLD 1959 SC (Pak.) 25) and Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173)?