' QAZI MUHAMMAD FAROOQ, J.---This petition for leave to appeal is directed against the judgment dated 13-11-2001 passed by a learned Judge in Chanters of the Lahore High Court in Writ Petition No,5323 of 2001.
2. The writ petition was filed by the respondent Tariq Iqbal. It had arisen in the circumstances that a case under section 156(1) (8) of the Customs Act, 1969 was registered against the respondent at Police Station FIA Airport, Lahore, vide F.I.R. No,20 dated 29-6-1985, on the charge of making an attempt to smuggle US dollars 1,27,000 from Pakistan to Dubai. The currency was confiscated by a departmental order dated 5-6-1986. The respondent was tried by the learned Special Judge Customs but was acquitted on 20-2-1991. The appeal filed by him against the order of confiscation of the currency was dismissed by a Member (Judicial), C.B.R. However, the appeal filed by him before the Customs. Excise and Sales Tax Appellate Tribunal, Lahore was allowed on 18-10-1999 with the observation that the confiscated foreign currency stood automatically restored to the appellant. The department preferred an appeal against the order of the Appellate Tribunal but it was dismissed on 11-9-2000 by a learned Division Bench of the Lahore High Court and the petition for leave to appeal was dismissed by this Court on 1-1-2001. The respondent approached the department for release of the confiscated foreign currency but without any success. Feeling frustrated he filed Criminal Original No,3 of 2001 in Customs Appeal No,11 of 2000 for initiation of contempt proceedings and from the written reply it transpired that sometime in June, 1993 the department had converted the confiscated foreign currency into Pakistani currency amounting to Rs,33,92,883.80. The respondent withdrew the contempt petition in order to file a writ petition.
During the interregnum the department sent a cheque dated 13-2-2001 in the sum of Rs,33,92,883.
The respondent acknowledged the receipt of the cheque under protest and filed a writ petition wherein he, inter alia, claimed refund of the confiscated foreign currency or its equivalent in Pak- rupees as per exchange rate prevalent on the date of actual refund. The writ petition was allowed on 13-11-2001 with the following observations:-- ' "In the absence of any explanation whatsoever for selling the currency in violation of the provisions of the section 201 of the said Act as also in disregard to the directives issued by the C.B.R. Failing to make the deposit of foreign currency with the State Bank, the respondents are bound to hand over the said amount of foreign currency of US$ 1,27,000 to the petitioner or to pay its equivalent in Pak.
Rupees as per prevalent exchange rate on 13-2-2001 when the said amount of Rs,33,92,883 was actually tendered to the petitioner which amount was accepted by the petitioner under protest as noted on the acknowledgment note (Annexure G). The officers concerned of the respondent department have proceeded in this matter with negligence and in dereliction of their duty. The currency continued to remain deposited with them, according to their own showing in the comments, after about 7 years of its confiscation. By that time the learned Special Judge had already acquitted the petitioner of the charge of smuggling and he was actively pursuing his remedies in the forums appealable under the Customs Act, 1969. Even if the said CGO No,5/92 directing the said officers to deposit the currrency in the State Bank of Pakistan were not to be there, it was the duty of the said officers to take absolute care in the matter of disposal of the currency in terms of section 169 read with section 201 of the Customs Act, 1969. They have failed to do so without any just cause. The said officers, after fixation of individual responsibility in a departmental inquiry, are liable to be proceeded against under the E&D Rules and the resultant loss suffered by the department to be recovered from them. Office to remit copy of this order to the Chairman, C.B.R., Islamabad immediately.
' For the reason stated above and with the above observations this writ petition is allowed. The sale of the foreign currency seized from the petitioner and later confiscated is declared to be,illegal and without lawful authority and the respondents are directed to pay the value of the said currency of US$.1,27,000 in Pak.Rupees as per rates prevalent on 13-2-2001 for inter Bank exchange of US$ with Pak Rupees."
3. When the petition came up for hearing today the learned counsel for the petitioner submitted that under instructions he would not question the relief granted to the respondent and assail only the observations made in the impugned judgment against the concerned officers of the department. According to him the concerned officers of the Customs Department having taken the action complained of in good faith were entitled to the protection envisaged by section 217 of the Customs Act, 1969 and the department had also not suffered any financial loss at their hands but they were condemned unheard.
4. There is no need to advert to the merits of the case as the relief granted to the respondent has not been challenged at the bar. However, we are inclined to tone down the observations made in the impugned judgment against the concerned officers of Customs Department.
5. The competent Authority may look into the matter and take appropriate action against the concerned officers, if deemed necessary. With these observations the petition is dismissed and leave declined.