1999 P Cr (PLP)

MAMOON KAZI, C.J.

According to the allegation, the petitioner brought 15 slabs of gold, each weighting 150 Tolas, into Pakistan and 41.4 grams in the shape of gold armaments and the said goods were concealed inside the socks and of the pockets of the coat worn by the petitioner. The said goods were seized under section 168 of the Customs Act under Mashirnama prepared at the spot since import of gold was restricted by the Government of Pakistan vide Notification No.SRO 491(1) of 1985, date 23-5-1985, issued under section 2(s) of the Customs Act. A show-cause notice, dated 2-6-1990, was served upon the petitioner, upon which proceedings before the Deputy Collector Customs were initiated. All the three respondents, before whom the petitioner's case went for adjudication held that the petitioner has not declared the said contraband articles and in fact, tried to conceal the same and, therefore, he was found guilty of an attempt of smuggling of gold. The main contention of Mr.Haider Iqbal Whaniwal, learned counsel for the petitioner, before us has been that, the matter had already been dealt with by the Central Board of Revenue under section 195 of the Customs Act and as was ordered by the same, no action was to be taken against the petitioner by the Custom$ authorities and, therefore, any orders passed by the Customs, consequent to such decision, were without lawful authority. So far as this contention is concerned, the learned counsel for the petitioner has invited our attention to an order, dated 12-8-1990, which indicates that upon a letter received from C.B.R., the Law Officer of the Customs was permitted to withdraw prosecution against the Petitioner in the said case and the petitioner was consequently acquitted. However, the position has been explained by the learned Dy.A.-G. It is pertinent to point out that proceedings under section 179 of the Customs Act had already been maintained by the Deputy Collector of Customs against the petitioner and vide order, dated 19-11-1980, the gold was ordered to be confiscated under clause (8) of section 156(1) of the Customs Act. The appeal and revision, filed by the petitioner, were also dismissed as the order passed by the Deputy Collector was upheld both upon the factual as well as the legal planks. No doubt, Mr Wahniwal has relied upon the order passed by the Special Judge (Customs and Taxation), Karachi, allowing withdrawal of criminal proceedings arising in the same, matter, but as has been pointed out by the learned Dy.A.-G., there were two parallel proceedings pending against the petitioner and withdrawal of one of them could not have prejudiced the other proceedings which were pending before the Deputy Collector of Customs under section 179 of the Customs Act. We, therefore, find no force in the first contention of the learned counsel for the petitioner. The second contention of the learned counsel for the petitioner was that the petitioner was not taken before a Gazetted Officer before his search as required by section 159 of the Customs Act which had vitiated the proceedings. However, the second contention of the learned counsel also appears to be without force because in the first instance nothing has been placed before us to indicate that the petitioner had expressed his desire to be searched by a Gazetted Officer of Customs or a Magistrate, as provided in section 159 of the Customs Act. This issue had not been raised by the petitioner before the departmental authorities during the adjudication proceedings but the same has been raised for the first time before us. However, there being no material before us to support the, said contention, the contention of the learned counsel cannot be accepted. Lastly, it was argued by the learned counsel that the petitioner has been discriminated against as some other parties had been permitted to import gold in tfie country. However, this is only an oral assertion of the learned counsel in this regard. No material has been placed by the learned counsel in support of the said contention. We are, therefore, unable to accept the third contention of the learned counsel as well. For the aforesaid reasons, we find no force in this petition and the same is, therefore, dismissed in limine. Q.M.H./M.A.K./H-66/L Petition dismissed.