NAZIM HUSSAIN SJDDIQUI, J.- The petitioners have impugned the judgment dated 24.4.2001 of a learned Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby Writ Petition No. 81/1998 filed by respondent No. 1, Mahmood Ahmed Qureshi, was allowed and the impugned order passed by the petitioners, confiscating the currency in question was declared illegal, void and without jurisdiction with a direction to return the currency to said respondent.
2. The case of the petitioners is that on 25.9.1984, an Assistant Collector Customs of Islamabad Airport, received a spy information that huge amount of foreign currency would be smuggled through Islamabad Airport by Saudi Airline Flight No. SV-367 bound for Jeddah. Pursuant to above information, the concerned Deputy Superintendent, Customs was directed to keep watch on the outgoing passengers and their baggages. When the respondent reported for search at ASF Security Counter, he was asked to declare, if he had anything objectionable/contraband, in his baggage or on his person to which he replied in the negative. Being dissatisfied, his personal search was conducted in presence of two witnesses, which led to recovery of US $19,700.00, which were concealed in wearing shoes. Besides above, Rs.4500.00 were also recovered from his black brief case. Accordingly, FIR No. 602/1984 under Section 156(1)8) of the Customs Act, 1969 read with Section 8 of the Foreign Exchange Regulation Act, 1947, was registered against the respondent.
3. Learned Special Judge Custom, Lahore Camp at Rawalpindi, vide judgment dated 14.3.1989, delivered in Special Case No. 6/1985 acquitted the respondent by extending him the benefit of doubt.
4. Before confiscation of the currency a show-cause notice dated 15.11.1984 was served upon the respondent, as to why seized currency and brief case be not confiscated under Sections 1 56(1)(8)
(70), 157 of the-Customs Act, 1969 read with Section 8 of the ' Foreign Exchange Regulation Act, 1947. In reply of the show-cause notice, the respondent maintained that, as per State Bank of Pakistan Notification No. FE/78-SB, dated 1 1.5.1978, he was not required to file a declaration of foreign exchange on arrival in Pakistan and, as per Circular No. 39, dated 11.12.1977, the State Bank had prescribed 6 months time frame for deposit of foreign exchange brought into the country with a scheduled bank and that in the instant case the foreign exchange was retained only for a period less than a month, as such, no violation of the aforesaid notification had taken place. A plea was also taken that 197 notes could not be concealed in the wearing shoes, It was also claimed that he declared aforesaid amount in Form "A" duly filled by him before alighting down the aircraft, but such declaration was not accepted by the Custom Staff on the plea that it was not required, It was also his case that seized amount was given to him by his employer namely, M/s. Jillani Trading and Contracting East, Jeddah, for some business payment. It was urged by him that Saudi Riyals were subsequently converted into dollars i.e. US $ 20,000/-, as he failed to make necessary payment in Saudi Arabia and he brought the same to Pakistan and that it was the same amount, which he was carrying back to Saudi Arabia, It is pertinent to point out that in criminal case in his statement recorded under Section 342, Cr.P.C., he maintained that he had drawn seized currency from the above-named company as his house rent. Further, he stated that he failed to have contact in Saudi Arabia with the owner of the house for paying him house rent and he brought it to Pakistan, where he had 1 come to celebrate Eid.
5. Deputy Collector Customs, who passed the order in Original No. 13/1985, in adjudication proceedings, repelled all grounds taken by the respondent and observed that, as per rules and regulations notified by the State Bank of Pakistan, the Pakistani Nationals, who were working abroad and came Pakistan on temporary visit, were allowed to take with them within three months from the date of their arrival in Pakistan the unspent balance of foreign exchange brought by them at the time of their arrival into Pakistan and it was subject to the terms and conditions of State Bank of Pakistan's Notification No. FE-4/71-SB, dated 9.12.1978 and said persons were required to declare the Custom Authorities at the time of leaving Pakistan, currency notes foreign exchange etc. On the prescribed currency declaration form, but in the instant case no such declaration was made and the currency was concealed as stated earlier.
6. As regard Form "A" produced by the respondent, it was noted that it was not bearing any "S. No." or machine number/counter signatures of any customs officer and, therefore, was not admissible.
Having minutely examined each and every plea raised before the Adjudicating Officer, the currency was ordered to be sized on the basis of unimpeachable evidence against the respondent by assigning cogent reasons, in this regard.
7. Collector Appeals, vide order dated 2.3.1986, upheld the above referred order of Deputy Collector, Additional Secretary, Ministry of Finance, maintained the order of Collector (Appeals), agreeing with the findings recorded by him (Collector Appeals). Thus in custom hierarchy concurrent findings were recorded on the points raised in the petition before High Court, It is noted that the provisions relating to Appeals and Revisions specially concerning to Customs, Excise and Sales Tax Appellate Tribunal, which were added by the Finance Act, 1989 vide Notification No. S.R.O. 842(l)/95, dated 24.8.1995 issued under Section 1(3) of the Finance Act, 1989 w.e.f. 30.3.1995 were not attracted to the instant case as it was registered in the year 1984 and impugned orders by the Customs Officers were passed before the Notification referred to above was issued.
8. It is noted that earlier the Writ Petition filed by the respondent was dismissed for non-prosecution on 6.7.1998. Thereafter, he filed Civil Petition No. 1393/1998 before this Court and the case was remanded with an observation to examine the genuineness or otherwise of the two documents dated 20.11.1984 and 1.1.1985 of "Al-Jeelani Trading and Contracting Establishment, Jeddah." It appears that learned High Court mainly relied upon the above observations of this Court and held as follows:- "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 order was, therefore, illegal, It is submitted further that the petitioner has established the source as the letters issued by M/s. 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 Hon'ble 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."
9. It is contended on behalf of the petitioners that learned High Court failed to take into consideration the authoritative pronouncements of this Court, while delivering the impugned judgment. Learned counsel argued that the proceedings 'before Special Judge' and 'adjudicating proceedings before Custom Officers' are independent to each other and mere fact that on wrong appreciation of evidence by Special Judge the benefit of doubt was extended to the respondent it does not, ipso facto, nullify the adjudication proceedings, which were conducted strictly in accordance with the law.
10. As against above, learned counsel for the respondent relied upon the impugned judgment of High Court and submitted that it is based upon sound judicial principles and is not open to any interference.
11: We have heard learned counsel and have perused the record with their assistance.
12. It was not legally proved that the respondent had brought said currency into Pakistan. On the contrary it was established that he was attempting to smuggle it out of Pakistan, It is an established law that criminal proceedings, before Special Judge are judicial proceedings while proceedings conducted before custom authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject-matter, yet, they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the custom authorities relating to adjudication proceedings. These proceedings go side by side but do not mingle. The authoritative judgment on this point is reported as Adam v. Collector of Customs, Karachi (PLD 1969 SC 446), wherein a Full Bench of this Court comprising four Judges, including the then Chief Justice observed as follows:- "Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double 'jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offence in respect of the goods, which are the subject-matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not interdependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other."
13. Relying upon aforesaid judgment, learned High Court in the case reported as Muhammad Sarwar v. Federal Government of Pakistan and others (PTCL 1988 CL 172), authored by Mr. Justice Rustam S. Sidhwa, in para 20, observed as follows:-- "20. In the instant case, the right of the Special Judge, Customs, to punish the petitioner for smuggling and that of the Customs Officers to adjudicate whether the smuggled goods should be confiscated, both arise out of the same provision of law, namely, item (89) of sub-section (1) of Section 156 of the Customs Act, 1969. As held by the Supreme Court in Adam's cm..; (PLD 1969 SC 446), the proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment for the same and the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings and such Customs Officers are not Judicial Tribunals and that though the State has concurrent remedies, but each is independent of the other and they cannot be termed to be mutually exclusive. Earlier, the Supreme Court in Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan (PLD 1959 S.C. 177 at 201) had held that though the Adjudicating Officer was not a judicial Tribunal, yet principles of natural justice applied before him, as proceedings before him were at least of a quasi-judicial character, if not of a judicial character."
14. On above point in the case reported as State through Director General, Pakistan Coast Guards, Turbat v. Sabro and another (1992 P.Cr.L.J. 1795) authored by Munawar Ahmed Mirza, C.J. As he then was, relying upon the case of Adam (supra) he held as follows:- "However, adjudication of property subject-matter of seizure exclusively falls within the domain of Customs authorities as contemplated by Sections 179 and 181 of the Customs Act."
Customs Authorities and any order of the Custom Judge would not, ipso facto, over-rule, the decision delivered by the custom officers in adjudication proceedings, nor the acquittal of the accused would nullify the effect of the adjudication proceedings, unless the said proceedings on their own strength were contrary to law and against the principles of natural justice.
16. In the instant case, the custom authorities confiscated currency strictly in accordance with law, as such, the said findings could not be disturbed by the impugned judgment.
17. Under the circumstances, this petition is converted into appeal and the same is allowed. The judgment of High Court is set aside and seized currency is confiscated to the State.