ORDER WAJIHUDDIN AHMED, J.- The pivotal fact in these proceedings consists of the petitioner being intercepted, upon a secret information, by Asad Awan, SI, FIA, Immigration Check Post, Lahore Air port. The petitioner was apprehended when he had booked his baggage and obtained the boarding card for PIA flight, PK-209, to Dubai, the baggage was off loaded and, on search, an amount of Rs. 50,0, 000/- Pak. Currency was recovered. The FIA registered a case under sections 156(1)(8)(81)(82) of the Customs Act, 1969, read with section 5 of the Prevention of Corruption Act, 1947. The petitioner was served with a notice under section 171 of the Customs Act. He could not give any explanation as regards the recovered amount. The petitioner, however, filed a Constitutional Petition in the Lahore High Court, claiming that the show-cause notice under section 180 of the Customs Act, by way of a step to confiscate the seized currency, was time barred, not in accordance with section 168(2) of the said Act and thus illegal, itwas also averred that the order under section^ 168(2) of the 1969 Act, extending the period for service of notice by two months in terms of section 180, aforesaid, was also illegal. During the pendency of the Constitutional Petition the Collector was directed to decide the question of legality of the show-cause notice and that of extension of time. Such matters were decided, respectively, on 11.12.1996 and 28.2.1996. The petitioner amended the petition in course of time so as to challenge the order dated 11.12.1996.
2. It was argued before the High Court that the FIA was not competent to register a case under the Customs Act. Besides, avowedly, FIA was not covered within the expression "appropriate officer", as contemplated by section 2(b) of the Customs Act. Further questions of validity of notice in terms of sections 168(2) and 180 of the Customs Act were also agitated.
3. In response, it was argued that the FIA was not a party before the Court, that the petition was not competent, having been brought simply against the issuance of a show- cause notice and that extension of time became necessary because the concerned Sub-Inspector, FIA, did not forward the seizure report to the Customs within time, necessitating the extension order dated 11.6.1995, pursuant to which the requisite show-cause notice was issued on 19.7.1995. As to the powers of the FIA, it was added that vide Notification dated 5.10.1986, issued under section 6 of the Customs Act, all police officials were given powers of seizure and arrest under section 161(2) of such Act and for that reason the FLA intervention was lawful. Reliance was also placed on section 5 of the Federal Investigation Agency Act, 1974, and particularly sub-section (2) thereof. As to merits, it was urged that per Notification dated 28.12.1992 Pakistan citizens could carry Pakistani currency outside Pakistan up to a maximum of Rs. 3000/- only.
4. The High Court found the petition to be non- maintainable on the ground that the finding of the Collector of Customs (Appeals) could be questioned before the Customs, Excise and Sales Tax Appellate Tribunal and, finally, appeal lay to the High Court as per section 196 of the Customs Act, 1969, duly amended to such effect by the Finance Act, 1997, the resultant appeal to be heard by a Bench of not less than two Judges. However, apparently because of the vehemence with which the matter was pursued, the High Court also touched upon the merits of the controversy, itfound that the notice under section 180 of the Customs Act was properly given and that the same was within time, necessary extension having been made under section 168 (2) by the Collector. The High Court also found that the FIA could lawfully act under the Customs Act because of the Notification dated 5.10.1986 under section 6 of the Customs Act, aforementioned and also in line with section 5 of the Federal Investigation Agency Act, (XIII of 1975).
5. In view of the obvious bar of an adequate alternative remedy being available in the matter the High Court should have dismissed the Constitutional Petition brought before it without going to the length of addressing the merits of the controversy.
6. We would first like to emphasize the effectiveness of bar of jurisdiction in such matters and feel constrained to address merits, albeit very sparingly, because the relevant High Court observations require some comment at this level.
7. As to bar of jurisdiction, it is to be noted that Article 199, of the Constitution opens with words to the effect that the High Court may exercise its powers under such Article only "if it is satisfied that no other adequate remedy is provided by law". Adequacy of the alternative remedy, therefore, if there is another remedy available, should always attract the attention of a High Court.
8. Of such alternative remedies also there are some, which would still leave the jurisdiction of the High Court virtually unaffected, if the order, complained of, is so patently illegal, void or wanting in jurisdiction that any further recourse to or prolongation of the alternative remedy may only be counter productive and, by invocation of Article 199, the mischief can forthwith be nipped in the bud. In such matters, of course, neither the alternative remedy would be adequate nor bar of jurisdiction in the sub- Constitution Legislation may come in the way of the High Court in exercising its Constitutional jurisdiction.
9. There are other matters, however, where the Constitutional jurisdiction under Article 199, cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive tribunal, mandated by the Constitution itself, Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example, essentially relevant to the first, would be the Service Tribunal where the tribunal is mandated by the Constitution of Pakistan namely, Article 212 thereof and where an appeal lies directly from the tribunal's decision to the Supreme Court. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a tribunal even in matters where the High Court's jurisdiction cannot be taken away e.g. Acts which are void, without jurisdiction or coram non judice. In such cases of ouster, the High Court would consider it a better exercise of its discretion not to interfere. More or less a similar principle applies where an exclusive tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate*# or revisional jurisdiction to the High Court itself. Obvious examples could be civil and criminal proceedings, emanating under the codes of civil and criminal procedure, Income Ta# references, Customs appeal etc. In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional Petition and to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation, arising in course of time. Some discussion on the point is to be found, regarding Income Tax matters and the alternative remedy of a reference,, which lies in a High Court under section 136 of the Income Tax Ordinance, 1979, in Yasmeen Lari Vs. Registrar, income Tax Appellate Tribunal, 1990 PTD 967. There the constitutional relief was declined for the sole reason that the alternative of a reference under the cited section of the Ordinance was an equally adequate remedy. As to a more or less similar situation of a some-what conditioned appeal in contemplation of the Banking Tribunals Act, 1984, since supplanted by the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the limited extent to which the Constitutional remedy would be addressed, in the face of a very restricted statutory appeal to the High Court, reference may conveniently be made to Balochistan Trading Company (Pvt.) Ltd. Vs. National Bank of Pakistan 1998 SGMR 1989. Relevant to Customs disputes, mention may be made to the comparatively recent development in the way of an amendment, effected through the Finance Act, 1997, introducing section 196 of the Customs Act, 1969, whereby a final appeal has now come to be postulated to lie in the High Court to be heard by a bench of not less two Judges. The outcome is obvious namely, that, following upon the amendment, the High Court shall be ever more circumspect in directly entertaining Constitutional Petitions touching customs controversies and, instead, prefer its own normal appellate jurisdiction to be invoked in due course.
As regards the appeals and revisions contemplated by and under the codes of civil and criminal procedure there is a plethora of precedents, contemplating that the High Court, itself being the Court of final resort under such statutes, should be extremely slow in allowing its own general jurisdiction to be side-tracked and rendered ineffective in matters overstretched to be tackled on the Constitutional plane.
10. To sum up, therefore, the High Court in the circumstances, should have declined to say anything on merits of the dispute and preferred to non-suit the petitioner on the sole ground of maintainability. As it turns out, the High Court has done that but not without touching merits with the result that we ourselves are compelled to make limited observations in the context of merits of the controversy.
11. The objection of the petitioner, pertaining to the intervention of the FIA is to be approached on two planes. Firstly, the Federal Investigation Agency Act, 1974, has interacted with a variety of other laws, including the Customs Act, 1969. Thus broad based powers have been conferred by section 3 of the Act on the Federal Investigation Agency for inquiry into and investigation of a large array of offences, specified in the schedule to the enactment. Such, inter alia, include offences under the Prevention of Corruption Act, 1947 and under Section 156 of the Customs Act, 1969, each the subject matter of the current FIR. Besides, under Section 5 of the same Act, members of the Agency, throughout Pakistan, for the purposes of inquiry and investigation under the Act, have been accorded such powers, including powers relating to search, arrest of any person and seizure of property and such duties, privileges and liabilities as the officers of a Provincial Police, have in relation to investigation of offences under the Code of Criminal Procedure or any other law for the time being in force. Sections 3(1) and 5(1 )(2) of the Federal Investigation Agency Act, being relevant here, are reproduced below:- "3. Constitution of the agency: (1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government . May constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of, the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence."
"5. Powers of the members of the Agency: (1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of person and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.
(2) Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer- in-charge of a police station in any area in which he is for the time being and,, when so exercising such powers, shall be deemed to be officer-in-charge of a police station discharging his functions as such within the limits of his station."
In section 5(1), above quoted, the words "any other law for the time being in force" would attract powers conferred on the local police under the Customs Act. That, in turn, would bring in the picture. SRO. 913 (D/86, dated 5.10.1986, whereby powers were conferred on police officers under section 6 of the Customs Act, 1969. Such powers, in virtue of section 5(1), aforesaid, mutatis mutandis^ would become invaluable by officers of the FIA even though no separate notification has been issued pertaining to the latter under section 6 of the Customs Act. The objections raised, pertaining to this aspect of the matter, appear to have been correctly decided by the High Court, by holding that the referred officer of the FIA proceeded within the ambit of his authority by intercepting the petitioner, as he did on the fateful day.
12. Another question raised, again pertaining to the powers of the FIA, concerns section 2(b) and (o) read with sections 3 and 4 of the Customs Act. It is contended that powers having been conferred by the 1974 statute on the FIA as an organization, individual officers could neither qualify as appropriate officer(s) under section 2(a) nor as officer(s) of Customs under section 2(o) ibid., those officer(s), as defined, meaning only officer(s) appointed under section 3 of the Customs Act to exercise such powers as may be conferred on them under the same Act. It is also argued that sections 3,4 and 6 of the Customs Act speak of individual officers and conferment of powers as an organization can never have been in contemplation of that legislation. This is too broad a question to be raised and decided without specific reference to the functions of the appropriate officer(s) or officer(s) of Customs, as envisaged in the Customs Act as also in the applicable notification(s), occupying the filed. Such question the petitioner would be free to raise before the tribunal and then before the High Court in the proper perspective of facts. Therefore, it is left open. However, as to the specific powers, conferred by the FIA Act, per sections 3 and 5 thereof, such do not appear to be, in any manner, restricted by the Customs Act and the correct position seems to that the FIA enactment, being later in time, the new dispensation introduced by it is a graft on the Customs Act but only so far as it goes. Thus even if an Officer of the FIA does not qualify as an "appropriate officer" for seizure of goods under section 168 of the Customs. Act, he manifestly qualifies for so doing under section 5(1) etc., of the FIA Act.
13. The next contention in the case is that an extension of time, in terms of section 168(2) of the Customs Act, cannot be made without reference to and without having a nexus with due reasons and reliance in the context is made on Abdul Zahir Vs. Director General Pakistan Coast Guards. PLD 1990 Karachi 412. An extended argument is that because time, by another two months, cannot be enlarged without reasons being recorded in writing, the exercise implying bi-partisan and adversary proceedings, an extension cannot be allowed without due notice to the party affected. In relation to the second limb of the argument reliance is placed on Asst. Collector, Customs Vs. Malhotra, AIR 1972 Supreme Court 689. Before examining these questions, it would be appropriate, for ready reference, to reproduce sections 168 and 180 of the Customs Act, which run as under:- "168.- (1) the appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
(2) Where any goods are seized under subsection (1) and no show cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized.
Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months.
(3) The appropriate Officer may seize any documents or things which in his opinion will be useful as evidence in any proceeding under this Act.
(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs."
"18. No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person, unless the owner of the goods, if any, or such person:-
(a) is informed in writing (or if the person concerned consents in writing, orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty;
(b) is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it, orally) within such reasonable time as the appropriate officer may specify, against the proposed action; and
(c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorised agent."
14. Taking up the first argument it is, no doubt, true that the Collector, seized of the plea for extension, in contemplation of section 168(2), must record his reasons in writing and, what is more, the reasons should have substance and cannot be merely perfunctory. However, with the advent of a tribunal of competent jurisdiction and the final appeal having come to be provided before the High Court, the factum or propriety of the reasons, ascribed under the provision should, normally, be raised in that jurisdiction alone. Nothing therefore as to the reasons or the adequacy thereof need detain us here.
15. Taking up the second part of the same argument, it needs to be stated that the extension, to the extent of a maximum of another two months, in contemplation of section 168(2) of the Customs Act, is for issuance of a notice only and if a further notice is read in the provision, even for considering an extension to issue the requisite notice, unnecessary duplication may arise. That, however, need not preclude the issuance of such a second or further notice to ensure whether an extension is called for it, lawfully, such a notice can be read in the provision, as seems to have been the position in the case from the Indian jurisdiction. There, in the first place, the initial period allowed for the notice was six months and extention(s) for another six months could be made.
Secondly, extention in India could not be made except for "sufficient cause" shown, which was a much stronger expression than an obligation to record reasons in writing. We, therefore, do not think that the case of Malhotra Supra, can be of an help to the petitioner.
16. Having said as much, we also do not think that the petitioner's caveat is totally devoid of substance. Thus if the initial period of two months, envisioned in section 168 supra., is allowed to go by without any extension having been made, a vested right may come to accrue to the affectee and the Collector should be obliged to issue a notice and accord necessary hearing before granting any extension. Correspondingly, as always, it would remain a moot question whether an extension, if any, was actually made, within the initial period of two months from the date of seizure and merely because it purports to have been so made, within time, may not in itself be enough.
The contrary may be shown but, ordinarily, within the customs jurisdiction alone.
17. With these observations, this petition is dismissed but the dismissal shall not carry any costs.