SAIDUZZAMAN SIDDIQUI, J.---The respondent was prosecuted before the Special Judge, Customs, for offences under section 156(1), 89 of the Customs Act 1969 (hereinafter to be referred as 'the Act' only) for having carried 500 'tolas' of gold of foreign origin for which he failed to offer any satisfactory explanation. The accused was arrested on 27-3-1979 and was charge-sheeted before the Special Judge, Customs, on 12-7-1979. The Special Judge, Customs, after recording evidence of the parties acquitted the accused of the charges under section 1580) 89 of the Act on the ground that the gold seized from the possession of the respondent was not of foreign origin but was of Pakistani origin and that the seizure of the gold was effected by the Head Constable, who was not competent under the law, to make such seizure. The learned Special Judge, Customs, accordingly, directed return of 500 tolas of gold to the respondent from whose possession it was recovered by the Customs Authorities. It is an admitted position in the case that the Government did not prefer any appeal against the judgment of Special Judge, Customs, dated 10-11-1980 acquitting the respondent in the case. It appears that while respondent was being prosecuted before the Special Judge, Customs, the Customs Authorities also carried on adjudication proceedings in respect of the gold seized from the possession of the respondent on the ground that it was of foreign origin.
The Deputy Collector, Customs, Lahore by order dated 15-4-1980 having reached the conclusion that the gold seized from the possession of the respondent was of foreign origin ordered its confiscation. The respondent filed an appeal before the Collector Customs, Lahore, against the order of Deputy Collector of Customs, which was dismissed on 14-7-1981. The appellant then filed revision before the Government of Pakistan under section 196 of the Act which to failed when it was dismissed by the Additional Secretary, Ministry of Finance. The respondent finally moved the High Court under Article 199 of the Constitution of 'Islamic Republic of Pakistan, praying for issuance of a writ against the appellants for restoring the possession of 500 tolas gold which was accepted and the orders of the appellants 2 to 4 were, declared as without lawful authority and of no legal effect and the net sale proceed of the confiscated gold was directed to be made over to the respondent.
Leave was granted in the above case to consider the following contentions:-- "The question whether even after repeal of section 179-A of the Customs Act the Special Judge Customs on the acquittal of the accused of the offence under section 156(1) 89 of the Act, 1969, was competent to order the return of the net sale proceeds of confiscated good's adjudicate upon by the competent authorities requires consideration. Leave is, accordingly granted. Stay shall continue. "
2. We have heard Mr. Izharul Haque, ASC for the appellants and Mr. Raja Mehmood Akhtar for the respondent. Section 179-A of the Act was incorporated in the Act on 15-1-1977 which 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."
Section 179-A, was subsequently deleted on 28-6-1979. It is an admitted position in the case that the case against the respondent under section 156(1)(89) of the Act was registered on 27-3-1979 when section 179-A of the Act was very much part of the Act. The learned counsel for the appellants contended that on the date the respondent was acquitted in the case by the Special Judge, Customs, namely 10-11-1980, section 179-A of the Act was no more available on the statute book and therefore, no advantage could accrue to respondent on account of the order of acquittal in the case passed by the learned Special Judge, Customs. The learned counsel for the respondent, on the other hand, supported the judgment of the High Court. After hearing the learned counsel for the parties, we are of the view that no interference is called for with the order of learned Judge in Chambers.
3. It is an admitted position in the case that at the the the respondent was charged with the alleged smuggling of the gold, section 179-A of the Act was the part of the Act. This provision clearly laid down that notwithstanding the provisions of sections 179 and 181 or 182 of the Act, where a person is being prosecuted before a Special Judge, any order of adjudication made under section 179 or under Chapter 19, shall be subject to the decision of Special Judge and the Special Appellate Court in appeal or revision,. If any. It is therefore, quite clear that under the above provision of law, the adjudication order of the Customs Authorities could not prevail over the judgment of the Special Judge, Customs, or the Special Appellate Court as the case may be. Article 12 of the Constitution of Islamic Republic of Pakistan which provides protection against retrospective punishment reads as follows:-- "12.---(1) No law shall authorize the punishment of a person--
(a) for an at or omission that was not punishable by law at the the of the at or omission; or
(b) for an offence by a penalty greater than, .Or of a kind different from, the penalty prescribed by law for that offence at the the the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any the since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."
4. Since the offence alleged against the respondent was committed on '27-3-1979 he was fully entitled to the protection provided under section 179-A of the Act which was part of the Act on the date of the commission of the offence. No doubt section 179-A was deleted subsequently on 28-6- 1979 but such deletion could not affect the right of the respondent to be governed by the provisions of section 179-A ibid as the offence alleged against the respondent was of a date when section 179-A ibid, was very much part of the statute. In the case of Federal Government of Pakistan v.
Muhammad Sarwar (PLD 1'989 SC 377), the effect of repeal of section 179-A ibid, was considered by this Court as follows:-- "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.
However, the appeals were withdrawn on 16-4-1982 after the section had been repealed.
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 the 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.
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 a$ the appeals were withdrawn, the orders of acquittal assumed finality as from the date they took effect, and in terms of clause (e) 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.
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.
The alternative argument raised before the High Court does not arise before us."
5. We are, therefore, of the view that the prosecution of the respondent having commenced at a the when section 179-A of the Act was very much part of the statute, the repeal of that section subsequently could not affect the right of respondent and the order of adjudication passed on appeal or revision by the Appellate Court or revisional authority after the acquittal of the respondent by the Special Judge, Customs, had to be in conformity with the order of acquittal. We, accordingly, do not find any reason to interfere with the order of the High Court. The appeal is, accordingly, dismissed but there will be no order as to costs in the circumstances of the case.