SYED ZAHID HUSSAIN, J. - It was in the night between 3/4 December, 1978 when Truck No. HA-7055 was seized at Faisalabad by the officials of Customs Department for the allegations that opium weighing 6 maunds and two pieces of cloth (K.T.) of Japan origin were found from the Truck. F.I.R.
No. 276, dated 4.12.1978 with Police Station Nishatabad, Faisalabad was lodged, challan was filed in the Court of Special Judge (Customs), Lahore against Abdul Majid, Abdul Malik and Abdul Shakoor, the drivers and the cleaner of the Truck. After trial, it was found by the Special Judge (Customs) vide judgment, dated 12.11.1980 that the opium was not proved to be of a foreign origin but the accused/petitioners were convicted having been found in possession of cloth of foreign origin, under Section 156(1)(89) of the Customs Act, 1969. An appeal was filed by the petitioners there against which was accepted by the Special Appellate Court, Lahore and were acquitted vide judgment, dated 22.12.1987. The matter is stated to have attained finality in this regard.
2. On the departmental side, a show-cause notice, dated 12.3.1979 was issued to the petitioners (petitioner No. 1 is stated the owner of the Truck), the matter was contested by the petitioners by submitting reply to the same before the Collector who, however, vic/e order, dated 11.7.1979 ordered the confiscation cf the goods as also the Truck. Personal penalty was also imposed on each of them. An appeal was filed there against which was rejected by the Central Board of Revenue on 6.4.1980. A revision was then filed before the Government of Pakistan which was rejected on 10.5.1983. This writ petition was filed under Article 9 of the then Provisional Constitution Order, 1981 challenging the aforesaid orders as without lawful authority with the further direction that the truck and Bajri be released to the petitioners.
3. In support of this petition, it is contended by the learned counsel that at the time when the case was registered against the petitioners, Section 179-A of the Customs Act, 1969 was in force, the orders of adjudication are subject to the decision of the Special Judge/Appellate Court. According to him, the petitioners having been acquitted by the Special Appellate Court in appeal which judgment has attained finality, the orders passed by the respondents being contrary to the same are illegal and liable to be declared as such. Reliance has been placed on Government of Pakistan through Secretary, Finance, Islamabad and others v. Abdul Majeed (PTCL 1997 CL. 35). It is contended by him that while admitting this petition on 11.10.1983, the respondents were restrained from disposing of the Truck, the same is liable to be returned to the owner.
4. Mr. Khan Muhammad Virk, Advocate for the respondents contends that Section 179-A (ibid) was on the Statute Book till 28.6.1979, when it was omitted, the petitioners are not entitled to the benefit of the same. This is the position taken by respondent No.1 in the comments as well.
5. The only point that needs to be examined is as to the import and applicability of Section 179-A of the Act. In Federal Government of Pakistan and others v. Muhammad Sarwar (PTCL 1990 CL. 139), this provision of law came up for consideration by their Lordships of the Supreme Court, In that case, a Toyota car was intercepted on 29.8.1976 on a secret information that smuggled goods were being transported through the same. The said vehicle, the goods and two more vehicles were seized on the pointation of Muhammad Sarwar respondent therein. The adjudication proceedings in regard to the seized goods were initiated by the Deputy Collector of Customs, he found that the goods were smuggled, ordered confiscation of the seized goods i.e. Golden watches, currency, vehicles, mare, jackets and waist coats and also imposed personal penalties, In appeal, the Collector modified the order on 20.1.1985 to an extent. A revision was filed before the Government of Pakistan which was dismissed on 20.4.1986 with a reduction in the quantum of penalty. The said orders were challenged through a petition before this Court. At the same time, proceedings before the Special Judge (Customs) were in process who on 7.2.1979 acquitted them. An appeal was filed against their acquittal which was later withdrawn. The writ petition qua the orders passed by the Customs Authorities was accepted, It was in this contest that the applicability of Section 179-A of the Act was considered by their Lordships and it was held that Section 179-A was enacted to provide relief against double jeopardy, It was, therefore, that the order of adjudication under Section 179 was made subject to the decision of the Special. Judge and of the Special Appellate Court in appeal or revision, if any, by reason of the non-obstante clause in the opening part of the section, namely "notwithstanding anything contained in Section 179, Section 181 or Section 182 or in Chapter XIX. The words "if any" after the words "appeal or revision" are of significance in that the decision of the Special Appellate Court is to prevail over the decision of the Special Judge if an appeal or revision is filed and decided on merits and the order of adjudication shall be subject to it.
However, if no appeal or revision is filed then the decision of the Special Judge holds the field and attains finality". Thus, in view of the acquittal order, it was held that "the order passed in appeal and revision in hierarchy of adjudication of proceedings had to be in conformity with the order of acquittal". This view has been followed in a later judgment by their Lordships of Supreme Court in Government of Pakistan, through Secretary, Finance, Islamabad and others v. Abdul Majeed (supra) and it was observed that "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 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", It was further observed that "the prosecution of the respondent having commenced at a time 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". (Underlined by me for emphasis).
6. In the present case, the incident is stated to have taken place on 3.12.1978 when Section 179-A of the Act was in the field and was repealed later on 28.6.1979. The said section gives the verdict of the Special Judge or the Special Appellate Court supremacy over the orders passed by the authorities in adjudication proceedings. The said orders have been made "subject to the decision of the Special Judge and of Special Appellate Court in appeal or revision, if any". The principle deducible from the dictum laid down by the Lordships of the Supreme Court is that it is the date of commission of the offence and commencement of prosecution which has relevancy qua the applicability of Section 179-A of the Act. Thus, repeal of Section 179-A would not make any difference for the present case. The stance of the respondents, therefore, has no sound basis and is repelled. Thus, in view of the judgment of acquittal, dated 22.12.1987 of this Court in Criminal Appeal No. 1295-C of 1980 titled as Abdul Hamid and others v. State (PTCL 1988 CL. 131), the orders passed by the respondents in adjudication proceedings cannot sustain and are declared as without lawful authority and of no legal effect.
The petition is accepted to the extent of the prayer made therein. No order as to costs.