1988 P Cr (PLP)

Messrs S.A. Haroon and another v. The Collector of 'Customs, Karachi etc. P L D 1967 S C 458 rel. Najamud Din Khan for Petitioner. M. Shamsher Ishaq for Respondents. Date of hearing: 9th February, 1988. This Constitutional petition has been moved for the quashment of the orders of the respondents dated 10‑12‑1970, 2‑9‑1972 and 30‑11‑1973 respectively.

2. The facts of this case in substance are that Karim Bakhsh petitioner is a goldsmith by profession and carries on his vocation in Soda Basti, Bahawalnagar City, for the last 40 years prior to the institution of this writ petition. The petitioner used to purchase gold from the neighbouring cities like Lahore, Sahiwal and Multan as the gold in those cities was comparatively cheaper. On 17‑6‑1970 the petitioner went to Sahiwal to purchase gold for himself and for Khushi Muhammad and Subhani. He purchased gold from the shop of Muhammad Akbar, a goldsmith of Sahiwal City. After the purchase of gold he boarded a bus bound for Bahawal Nagar when the police interrogated him in the bus and took possession of 60 Tolas of gold which he had purchased from Muhammad Akbar. A case was registered against the petitioner under section 156(89) of the Customs Act, 1969 by means of F.I.R. No. 157, dated 17‑6‑1970. Consequently the Assistant Collector, Customs served a show‑cause notice on the petitioner on 15‑8‑1970 as to why penal action under sections 156(8) and 156(89) of the Customs Act, 1969 should not be taken against him. The petitioner submitted his reply to the show‑cause notice on 28‑8‑1970. After taking down the evidence and considering the report of the Superintendent, Assay's Office, Pakistan Mint Lahore, the Assistant Collector, Customs confiscated 60 Tolas of gold and also imposed penalty of Rs.3,000 on the petitioner. The petitioner lodged an appeal to the Collector, Customs which was dismissed. Subsequently he was constrained to file a revision petition before the Central Board of Revenue and was unsuccessful on 30‑11‑1973. He has now filed this writ petition questioning the impugned orders of the respondents. 2‑A. In this case section 156(8) of the Customs Act, 1969 (which shall hereinafter be referred as an Act) does not apply because the petitioner was not found smuggling gold into or out of Pakistan nor he was apprehended in the Border Belt. At the most it could be said that he was in possession of the smuggled gold and was liable to be punished under section 156(89) of the Act, in case the gold was found to be of foreign origin.

3. In the very F.I.R. it has been stated that four bullions of gold weighing 40 Tolas contain the inscription Muhammad Farooq and Sons, Karachi and two bullions of gold weighing 20 Tolas embody the seal of S.A. Karim and Company Karachi. The Assistant Collector Customs has given weight to the Assay report submitted by Abdul Hafeez, Superintendent (Annexure 'F') which shows that 40 Tolas of gold i.e. four bullions with inscription Farooq and Sons, Karachi had a fineness of 975.4,975.5,995.3 and 975.4 per 1000 parts whereas two bullions containing a seal of S.A. Karim and Company Karachi illustrated the fineness of 985.7 and 985.7 only.

4. There is no evidence on the file as to the proportion of fineness of gold melted in the indigenous refineries. In Messrs S.A. Haroon and another v. The Collector of Customs, Karachi etc. PLD 1967 S C 458, the question of fineness has been elaborately explained and it was held that fineness of gold is not a conclusive proof that the gold is of foreign origin. In this connection it has been stated in this precedent that in a civil suit Mr. Abdul Jalil, Superintendent of Assay Department of Government Mint Lahore, had deposed that the ' maximum fineness of gold achievable in Pakistan was 999.3 for 1000 parts which could be obtained by a refinery process carried out in Sooha Bazar, Lahore. He had added that the standard quality of Mint gold had a fineness of 999.5 for 1000 parts. In this ruling the judgment of the Central Board of Revenue dated the 9th October, 1960 was relied upon in which it had been held that in accordance with the opinion of the Mint Officers at Lahore the fineness of 998.9 and 999.8 per 1000 parts could be achieved by usual methods of refining adopted in the country. In this case the report of the Assay Department shows a fineness of 975.4 to 985.7 as stated supra and in one bullion it is 995.3. According to the instructive precedent quoted above such a fineness is achievable in this country and the Customs Officers have obviously erred in classing the gold belonging to the petitioner as of foreign origin.

5. Furthermore, the Customs Officers had relied upon the statement of Ashfaq Ahmad, S.H.O, 'A' Division Sahiwal, and that of Karim Bakhsh,, Khushi Muhammad and Subhani. They did not bother to take down the statement of Muhammad Akbar who is stated to have sold this gold to Karim Bakhsh petitioner.

6. In the circumstances, the gold purchased by Karim Bakhsh is not of foreign origin and it has illegally been confiscated and unnecessary penalty was imposed on the petitioner. I therefore, accept this petition and quash the impugned orders of the respondents. The confiscated gold should be handed over to the petitioner and the penalty recovered from him may be refunded. The writ petition is accepted with costs. M.Y.H./K‑85/L Petition accepted.