The petitioner has challenged the orders passed by the respondents Nos. 1 to 3, dated 25-11-1986, 30-3-1986 and 31-10-1985 respectively in this petition.
2. The facts of the case in brief are as follows:-- The case as set up by the respondents Department is that on 25-9-1984 an information was received by the Assistant Collector of Customs, Islamabad Airport that a huge amount of foreign currency was attempted to be smuggled out from country through Islamabad Airport to Jaddah, Saudi Arabia, a special watch was, therefore, kept on the outgoing passengers and their luggage at the time of departure of Saudi Flight No.SV-367 at 4-30 p.m. And at that time the petitioner Mahmood Ahmad Qureshi with his Pakistani Passport reported for A.S.F. Security checking at the search counters. It is further alleged that before his personal search he was asked to declare if he had anything objectionable/contraband contained in his luggage or on his person but the reply was in the negative and on his personal search recovery of 19,700 U.S. Dollars and 4,500 S.R. Was effected and on demand the petitioner failed to produce any evidence for the lawful export of the same. It is thus, the case of the respondents Department that the petitioner was trying to smuggle out foreign currency in contravention of section 16 of the Customs Act, 1969 read with section 3(1) of the Imports and Exports (Control) Act, 1950 and the currency was, therefore, seized for action under sections 156(1)(8)(70) and 157 of the Customs Act, 1969 read with section 8' of the F.E.R. Act, 1949. A case was accordingly registered with the Police Station Civil Lines, Rawalpindi vide F.I.R. No.602 of 1984, dated 25-9-1984, during the course of his physical remand, the petitioner stated that he was working as Project Manager with Messrs Jilani Trading and Contracting Establishment, Jaddah on a monthly salary of S.R.10,000 and one month before the occurrence he had brought an amount of U.S. $ 20,000 and S.R.4,500 with him to Pakistan, this amount was drawn by him as electricity and miscellaneous charges and when he was going back to Saudi Arabia after having availed Eid holidays he was apprehended by the Customs Staff. After the completion of investigation, seizure report was submitted by the Superintendent, Customs Investigation and Prosecution Cell, Rawalpindi and in terms of section 180, Customs Act 1969, show-cause notice was issued by the Deputy Collector, Customs, Rawalpindi on 13-11-1984. In response to the show-cause notice, the petitioner reiterated his earlier contention already deposed before the Investigating Agencies.
The Deputy Collector Customs vide his order, dated 31-10-1985 held that the offence as charged was fully established and ordered confiscation of the seized currency in favour of the State. The Collector (Appeals) vide his order, dated 30-3-1986 dismissed the petitioner's appeal and the respondent vide his order, dated 25-11-1986 dismissed the revision petition. Hence, this petition.
On the criminal side, the petitioner was tried by the Special Judge, Customs, Lahore under section 156(1)(8) of the Customs Act, 1969. The petitioner pleaded not guilty to the charge asserting that he had not concealed the currency and in fact made declaration of the same. The prosecution, in all, examined four witnesses. In his 342, Cr.P.C. While answering 'to Question No.7, the petitioner/accused t u the following plea:-- "I am a Mechanical Engineer. I was employed as project Manager in Jilani Establishment, Jaddah.
The seized currency was drawn by me from the said company as my house rent in Taif where I was posted. I had to come to Pakistan to celebrate Eid. As I could not make contact with the owner of the house for payment of the house rent in Saudi Arabia, I brought this amount with me to Pakistan, when landed at Islamabad Airport on 27-8-1984, I declared this amount orally before the Customs Authorities. On their inquiry I told them that I would be staying in Pakistan only for three weeks. The Custom Authorities told me that there was no need to declare this amount in writing due to the short period for which I was going to stay in Pakistan. On 25-9-1984 an employee of A.S.F. During personal search enquired as to the contents of my pocket. I told him that I was carrying dollars and Saudi Rayals. I handed over the dollars to Mazhar Iqbal Sepoy Customs who was standing there.
Thereafter, Masood A.I Khan, Deputy Superintendent Customs came. He tried to strike a bargain with me but I refused. There I also told him that I was carrying Saudi Rayals which were lying in my brief-case. The Saudi Rayals were also taken into possession by the Customs Authorities. Masood A.I Khan told me that he would not register any case against me if 4,500 Saudi Rayals and 8,400 U.S. Dollars were given to him as illegal gratification. When I refused to fulfil the demand of Masood A.I Khan, Deputy Superintendent Customs, he included the words concealed in your wearing shoes' in the notice Exh.P.F."
The observations made by the learned Special Judge and the petitioner's acquittal recorded by him have attained finality because the Department has not challenged it any further.
The relevant law relating to the subject-matter has been reproduced by the Deputy Collector (Customs) himself in his impugned order, dated 31-10-1985 which is reproduced below for the sake of convenience:-- "According to the present rules and regulations notified by the State Bank of Pakistan, Pakistan nationals who are working abroad when come to Pakistan on temporary visits are allowed to take out with them within three months from toe date of their arrival in Pakistan, the unspent balance of foreign exchange brought by them at the time of their arrival into Pakistan. However, in terms of the State Bank Notification No.FE-4/71-SB, dated 9-12-1971 all persons are required to declare to the Customs Authorities at the time of leaving Pakistan, currency notes and coins, foreign exchange etc. On the prescribed currency declaration form."
3. Further facts necessary for the disposal of this writ petition are that the writ petition was dismissed for non-prosecution on 6-7-1998. The petitioner filed C.P.L.A. No. 1393 of 1998 before the Honourable Supreme Court of Pakistan. The case was remanded to this Court by the Supreme Court of Pakistan with the following directions:-- "We have refrained from entering upon discussion on merits of the case as the writ petition is to be decided on merits by the High Court. It, however, appears that the decision of the case would mostly revolve upon the decision of the genuineness or otherwise of the two documents, dated 20- 10-1984 and 1-1-1985 written by Al---Jeelani Trading and Contracting Establishment from Jadda, appended with the writ petition, therefore, if the question of genuineness or otherwise of these is raised on behalf of the respondents, the High Court shall through Registrar get the verification as to genuineness of the same from Jadda directly from the said company and then decide the writ petition."
4. It may be mentioned here that in support of his contentions and to establish the source, the petitioner had produced a certificate, dated 2-10-1984 issued by the General Manager of Al-Jeelani Trading and Contracting Establishment to the effect that the petitioner was working as Project Manager with the Establishment for the last four years and his monthly salary was S.R.10,000 (ten thousand) with free food and furnished accommodation and that on 25th August, 1984 he had drawn S.R.75,000 for payment of annual house rent (60,000 Riyals) and approximately 15,000 Riyals as telephone, electricity and other miscellaneous expenses. The petitioner also produced a letter, dated 1st of January, 1985 issued by the same Al-Jilani Trading and Contracting Establishment giving the details of the balance due to the petitioner by them for his services from June, 1984 to August, 1984 and November, 1984 to 31st December, 1984 showing total balance due to the petitioner from them as S.R.88,106. This letter also shows that S.R.75,000 were deducted from the petitioner as loan and 3,000 Riyals were deducted as Social Insurance leaving balance of S.R.10,106.
This letter shows that S.R.75,000 which were drawn by the petitioner on 25-8-1983 were deducted by Al-Jeelani Trading and Contracting Establishment from the salaries etc. Of the petitioner as advance loan. In compliance of the observations of the Honourable Supreme Court, reproduced above, the genuineness and authenticity of these two documents was got verified by this Court through Additional Registrar of this Court. The Jilani Trading and Contracting Establishment vide its letter, dated 20-11-1999 addressed to the Additional Registrar of this Court has verified the' genuineness of these letters and the contents of both these letters have been declared to be correct by the Managing Director of the Establishment.
5. I may here also make a reference to para.2 of F.E. Circular No.39, dated 11-12-1977 issued by the State Bank of Pakistan, Exchange Control Department, Rawalpindi as the same deals with the controversy in hand and for the convenience sake this paragraph is reproduced below:-- "2. With a view to further liberalise facilities to the Pakistanis working/settled abroad who come to Pakistan on temporary visit it has been decided that they can now retain the foreign exchange brought in by them up to 3 months from the date of their arrival in Pakistan as against the existing period of one month. Furthermore, while leaving Pakistan they can take back with them the unspent balance of foreign exchange including foreign currency notes up to the value of $ 50 per head or equivalent thereof in other currencies, within the above period of 3 months. Where the foreign currency notes are declared to the Customs on Form ' F.M.' at the time of arrival in Pakistan they can be taken back by the returning Pakistanis even in excess of $ 50 per head or equivalent thereof in other currencies."
6. The para. 2 of the F.E. Circular No.39, dated 11-12-1977 issued by the State Bank of Pakistan, Exchange Control Board, Rawalpindi (reproduced above), shows that at the relevant time due to the liberalization policy, the Pakistanis working/settled abroad were permitted to bring in any amount of the foreign exchange/foreign currency in Pakistan and could take the same back within three months and the only requirement was that the foreign currency had to be declared on Form "F.M." at the time of arrival in Pakistan. It is nobody's case that the petitioner was informed of the restrictions and was asked to make declarations on Form "F.M." The only form which was handed over to the petitioner in the air on his way to Pakistan was Form "A" for the use of the Pakistan Customs and it was to be filled in only by, those passengers who wanted to make purchase from Duty Free Shop. The case of the petitioner is that he duly filled in the said form and the foreign currency brought by him was declared on the said form but as the petitioner did not want to make purchase from the Duty Free Shop, therefore, the Customs Authorities did not make any endorsement on the same and the said form in original remained with the petitioner.
7. On the strength of the above facts and the relevant law prevalent at the time, it has been argued by the learned counsel for the petitioner that the charge of smuggling has not been established against the petitioner and the confiscation of currency through the impugned orders was, therefore, illegal. It is submitted further that the petitioner has established the source as the letters issued by Messrs Jilani Trading Establishment have been verified and it has now been established beyond any shadow of doubt that the petitioner brought the foreign currency with him from Saudi Arabia and under the law he could take back the same with him within the period of three months and as the Honourable Supreme Court has also held that the decision of the present case would mostly revolve upon the decision of the genuineness or otherwise of the two documents, referred above, and the same have now been verified in the manner prescribed by the Supreme Court, therefore, the writ petition is liable to be accepted. The learned counsel has also placed his reliance on the following case-law:-- 1993 MLD 1247 the petitioner Muhammad Shahid was acquitted by the Special Judge, Customs and it was held by him that the petitioner was in transit, he had no intention to smuggle gold into Pakistan and a Division Bench of Karachi High Court held that the findings of the Special Judge had attained finality and was binding on Customs Authorities as they were party to such decision and did not choose to challenge the same and, therefore, the petitioner could not in law as well as equity be deprived of gold in question which was to be restored to him or value of the same.
1987 SCMR 1840 foreign currency seized from possession of the respondent, an Afghan national, after having been tried and convicted under section 156(1)(89) of Customs Act, 1969, for attempting to smuggle into Pakistan Iranian Rials. The action of confiscation against respondent was taken on two grounds namely (i) that when intercepted at the check point respondent, even though asked to declare any foreign currency in his possession, declined to do so, and (ii) that the alleged contraband currency was brought into Pakistan from unauthorized route. The High Court while accepting the Constitutional petition of respondent, held (i) that when currency was brought into Pakistan nobody from Custom Department had asked respondent to declare the same, (ii) that when respondent was searched he was not importing foreign currency into Pakistan but was only in possession thereof, (iii) that under the Notification of State Bank of Pakistan a person importing currency was not under obligation to make a declaration on his own but only if so required by Customs Authorities at the time of his arrival and not thereafter and (iv) that the mere fact of currency having been brought by an unspecified route would not constitute smuggling. The Honourable Supreme Court, while refusing to grant leave to appeal and while dismissing the petition of the Collector, Central Excise and Land Customs and others affirmed the findings of the High Court including the finding that no demand was shown to have been made requiring respondent to make declaration before searching of his person and seizure of currency. It was further held that High Court was correct in holding that the conviction in criminal prosecution had no bearing on adjudication proceedings which are independent proceedings under the provision of Customs Act, 1969.
8 The learned counsel representing respondents, while opposing the petition has submitted that the petitioner has failed to prove that he brought the currency from abroad and he was caught red-handed while trying to smuggle the currency out of the country and, therefore, the same has rightly been confiscated by the respondents and the petitioner's acquittal by the Special Judge, Customs would not make the adjudication of confiscation as illegal or without jurisdiction.
9. Avoiding the repetition, the facts and circumstances detailed above show that the petitioner brought the currency notes to Pakistan from Saudi Arabia. The lawful source has also been established. The charge of smuggling or attempting to smuggle the currency out of the country has not been proved as the petitioner has been acquitted from the said charge by the Special Judge Customs and the findings of the Special Judge Customs, Lahore, in his judgment, dated 14- 3-1989 that the defence version was true, that the accused/petitioner had made a declaration of the currency in his possession before he was subjected to search at the Airport, that he did not attempt to smuggle the currency out of the country and that he shall be deemed to have changed his mind about taking the currency out of Pakistan, as soon as he disclosed that he was in possession of the foreign currency, are binding on the Customs Authorities as they were a party to the said proceedings and the said findings have attained finality as the Customs Authorities have opted not to challenge the same. These facts having been established the respondents illegally resorted to the confiscation of the petitioner's currency as the confiscation can be ordered/resorted to only in case of attempt of smuggling is established as held in Muhammad Shahid v. Khalid Mehmood Tabassum and 4 others (supra) and Syed Masood Ahmad v. Islamic Republic of Pakistan and 3 others (supra). The confiscation was, therefore, not justified and the same was without lawful authority and of no legal effect. In the Collector, Central Excise and Land Customs and others v. Rahm Din (supra) the accused was convicted by the Special Judge Customs yet the confiscation of the currency was declared to be illegal. I am convinced that in the present case nobody ever asked the petitioner to declare the foreign currency in his possession and in fact the behaviour of the Customs Authorities in such-like cases is to trap the innocent people.
10. In view of the abovementioned, this petition is accepted and the impugned orders ordering confiscation of the petitioner's currency are declared to be illegal void and without jurisdiction and it is directed that the foreign currency recovered from the petitioner and confiscated by the respondents be restored to the petitioner. In the circumstances of the case, parties are directed to bear their own costs.