MR. JUSTICE NASIM SIKANDAR.-(l). The appellant late Nizar Ali, now represented by his successors was arrested on 28.8.1987 in case FIR No. 311/87, dated 28.08.1987 under section 156(1)89/157 of the Customs Act, 1969 registered at Police Station, Litton Road, Lahore.
2. According to the complainant Major Tanvir Rafi, Commandant Anti Smuggling Rangers Headquarters, Lahore, the accused was arrested on a "Naka" near Chauburgi Chowk and was found in possession of 670 tolas of foreign origin gold 7 mm rifle and Pak currency of Rs. 2,90,000/-.
The raiding team, according to the complainant, besides a number of rangers Officers and Staff comprised of Custom Inspector Waqar Yousaf and S.I. Muhammad Naseeb Khan of Punjab Police.
3. Consequent thereupon the accused was served with a show cause notice dated 25.10.1987 by Collector of Customs, Lahore. The opening part of the show cause notice reads as under:- "Whereas a report has been received from the Director General Pakistan Rangers, Lahore,, that in pursuance of an information that Nizar Ali s/o Sher Ali r/o 2-Dishno Street, Chauburji, Lahore, will smuggle gold of foreign origin in Suzuki Car No. SLE-5886 to India via Village Diayal, near Wagha Border, through Murad Khan, the staff of Pakistan Rangers held "Nakabandi" on Miani Road, Chauburji, "Chowk" Lahore from 2200 hours of 27.8.1987. On 28.8.1987 at about 0130 hours, the Rangers' naka party observed Suzuki Car No. SLE-5886 coming from Multan Road and turning towards Miani Road, Chauburji, Lahore. On reaching close, the rangers naka party signalled the said suzuki car to stop but the driver thereof instead of stopping the car, tried to run away. The rangers naka party quickly encircled and stopped the said car along with its driver, who, on interrogation disclosed his name and address as Nizar Ali son of Sher Ali, Caste Rajput r/o 2-Bishno Street, Chauburji, Lahore."
4. In the latter part of the show cause notice various contents of the aforesaid FIR were repeated and the respondent accused was called upon as to why he should not be penalized and the aforesaid gold and currency be confiscated with reference to the aforesaid provisions of the Customs Act, 1969,
5. The accused late Nizar Ali in his reply dated 12.1987 denied the charges levelled against him. He urged that in fact Pakistan Rangers, Lahore raided and ransack his house at 10.00 p.m. On 27.8.1987 and removed 70 pieces of gold weighing 700 tolas and a cash of Rs. 3,00,000/- from his almirah of the strong room and also took into possession a 7mm rifle and a 32 bore revolver duly licensed. He explained that one Muhammad Hashim Saraf had purchased that gold for a sum of Rs. 23,50,000/- through auction conducted during liquidation proceedings of Punjab and Kashmir Banks under the direction of the Company Judge of the High Court. He claimed that he received the aforesaid gold from the said gentleman on 9.6.1987 as a gold smith for the purpose of melting which he actually carried out for the benefit and at the direction of its owner Muhammad Hasham Saraf.
6. Before the original authority Collector Customs, Lahore, on legal plane it was claimed that the raid conducted by the rangers and the alleged naka put up near Chauburji Chowk by rangers was totally illegal inasmuch as they could operate within the border area if at all they were to exercise the powers of Custom Officers conferred upon them vide SRO 29(I)/73, dated 21.1.1973 and CBR letter C-8(57)SS(J)/86 dated 15.7.1986. To support the contentions that the seizure being in- competent, all proceedings became coloured and unlawful, learned counsel for the late appellant relies upon in re: Bank of Bahawalpur v. Siddiq Textiles Ltd. (PLD 1969 Karachi 599), re: Dalilur Rahman Chaudhry v. Crown (1969 SCM R 602), re: S.M. Yousaf v. Collector Customs (1972 SCM R 87), re: Muhammad Zubair v. Pak Government (NLR 1986 Cr. 905) and re: Sher Bahadur v. Chairman Industrial Relations (PLD 1975 Karachi 483).
7. The original authority however, on the basis of income tax returns of the late appellant filed during the last five years and on the basis of facial features of the gold recovered refused to accept the factual as well as legal objections put forth before him. Accordingly the seized gold weighing 670 tolas was confiscated along with seized suzuki car bearing registration No. SLE-5886 used for the carriage. The Pakistan currency, seized rifle as well as cartridges and other personal efforts also taken into custody at the time of arrest of the appellant were however, directed to be returned to him.
8. The late appellant partly succeeded in revision as the learned Member (Judicial) CBR through his order dated 18.5.1991 set aside the findings and remanded the matter with a direction to re- examine the jurisdiction of Pakistan rangers viz-a- viz the contentions of the appellant and also to look into the other aspects of the case before finalizing the order.
9. After remand and on usual proceedings the Collector Customs Lahore on 9.8.1995 repeated exactly the same findings made by his predecessor in the earlier round for almost similar reasons.
It appears that in second round the appellant had stressed more on his objection regarding lack of jurisdiction of the rangers. However, the learned Collector rejected the objection on the ground that the raiding party being accompanied by a Custom Inspector Waqar Yousaf, Sub-Inspector Naseeb Khan and S.I. Zahid Hussain, no factual or legal lacuna in the constitution of the team and the conduct of the raid could possibly prevail. Therefore, the seizure of the impugned goods and the arrest of the accused was found well within the legal frame-work.
10. After recording of second order in original on 9.8.1995 the appellant approached the Customs Excise and Sales Tax Appellate Tribunal which had in the meantime been constituted under law. A Division Bench of the learned Tribunal after hearing the parties maintained the order in original. A particular reference was made to the provisions of section 7 of the Customs Act providing for assistance to customs authorities by all the Officers of Central Excise, Police and the Civil Armed Forces, etc. According to the learned Tribunal, the nature of duties and function of the Custom Officer was such that in many cases they were required to move instantaneously to perform their function in which section 7 provided for a solution. In the view of the learned Tribunal since Waqar Yousaf, Custom Inspector could operate in Lahore he could very well seek the assistance of the rangers. Lastly it was found that show cause notice was well within time and that the appellant having failed to support his submissions with regard to purchase as of bullion the order in original did not need any interference. The order so recorded by the Tribunal on 9.7.1997 has brought the appellant in further appeal before us under section 196 of the Customs Act, 1969.
11. After hearing the learned counsel for the parties we are persuaded to agree with the learned counsel for the appellant that the seizure of gold etc. As made by the raiding party headed by the complainant in the aforesaid FIR was not in accordance with law. The contents of the FIR clearly demonstrate that it was all along a show of rangers and the officer from the Custom Department including the Police Officer of Punjab Police were included only in order to justify the conduct of raid by them within the municipal limits of Lahore. Learned counsel for the revenue has not been able to cite any law or precedent which could support the operation conducted by the rangers. The provisions of West Pakistan Rangers Ordinance, 1959, certainly provide for the area of their operational activities and their jurisdiction. A notified officer of rangers, by virtue of the aforesaid SRO could operate as Customs Officer only within that area and not beyond. It has never been the case of the prosecution that the rangers could under any situation exercise their jurisdiction as a Customs Officer some 25/30 kilometres in side the country and in fact in the centre of Provincial capital. If that kind of exercise is condoned for the mere factum of mention of the name of a Custom Officer/Inspector and that of an officer of Punjab Police then there will be no way to check their intention into cities. The opening part of the show cause notice issued by the customs authorities and even the contents of the FIR amply demonstrate that it were the rangers alone who were in operation all along and not neither the Customs Inspector nor the aforesaid officer of the Punjab Police. Even if we do not believe the statement- Of late appellant that rangers had conducted a raid at his residence, we will readily agree that conduct of raid by rangers and putting up a Naka in the heart of the city was not supported by any provision of law or even the exigency of the situation. According to them the late appellant on interrogation stated that he was to supply the aforesaid gold to some one else in a village Diayal near border area. If the alleged information as claimed in the report made to the police which was converted into FIR and the contents of the show cause notice are correct, still after having received the information of the alleged attempt to smuggling to India did not empower the rangers to seek the intended smuggler right in his house.
They were obliged to wait till the late accused as carrier or the alleged receiver of Diayal village had actually entered their area of jurisdiction i.e. The border area. Any illegal act including smuggling certainly needs to be properly checked and forestalled but only by an authority which is so empowered. The undue zeal on the part of the rangers has provided the late appellant with a convincing defence. Thereafter the only issue which could be seen was if a piece of gold metal allegedly bearing a foreign mark could validly result into a conviction for smuggling for the mere reason of its possession by a person whose claim of being a gold smith by profession was never challenged.
12. We have noted that Mr. Aqeel Ahmad Khan, Special Judge, Customs, Lahore through his order recorded on 16.7.1991 also examined the issue in the light of the provisions of Customs Act as also the aforesaid notification dated 3.1.1973 issued by the Central Board of Revenue to entrust certain functions of the officers of the customs to certain categories of the officers of the West Pakistan Rangers. Learned Special Judge while acquitting the late appellant before us finally concluded that the prosecution had failed to establish that the accused was found in possession of smuggled goods or any goods with respect to which there could be a reasonable suspicion that these were smuggled. According to the learned Special Judge the accused was a gold smith by profession and the quantity of gold recovered from him was not out of proportion to the normal requirements of a person engaged in such business. The learned Judge also made a specific reference to the ratio settled in Barkat Ali and another v. The State (PLD 1973 Karachi 659) wherein a question arose if the presence of marking of foreign banks or companies was a sufficient proof of the foreign origin of gold slabs. Their Lordships were of the view that the mere fact that the gold was so marked was by no means a proof, much less to say of conclusive proof that it was brought into Pakistan from outside or that it could support the alleged better degree of refinement which could not be obtained in Pakistan.
13. Therefore, for the aforesaid reasons, we will hold that the seizure of the gold by rangers in the heart of the city was without any legal authorisation. It was beyond their normal powers as entrusted to them under the Ordinance and the aforesaid SRO and totally against law. All proceedings held subsequently are also held to be without lawful authority.
14. The appeal of the late appellant, who is represented by his legal heirs, accordingly succeeds in toto.