1989 P Cr (PLP)

Dates of hearing: 12th to 14th December, 1988. This is a Constitutional petition filed by Messrs Muhammad Tahir and Wali Muhammad petitioners calling in question the order passed by the Customs authorities in adjudication proceedings.

2. The brief facts of the case are that the West Pakistan Rangers set up a picket near Co‑operative Store at the entrance of Model Town Crossing on 24 11‑1971 at 10 a.m. and hauled up Muhammad Tahir and Wali Muhammad, petitioners, when they were coming on Scooter No. LEH‑8907. During the incident, Muhammad Tahir petitioner took out a revolver but the same was snatched away by Muhammad Akhtar S.I. Rangers. On search of Wali Muhammad petitioner, 298 rennies of 'gold each weighing 10 Tolas were recovered from three jackets. The gold rennies bore the mark `JHONSON METHY 999 LONDON' Notices under section 171 of the Customs Act were served on both the petitioners by Major Ghulam Sarwar, Commandant Rangers. The said commandant also filed a complaint with Model Town Police Station against the petitioners under M.L.R. 23 of the 1969 and section 307, P.P.C. Pursuant to the said complaint F.I.R. was registered at Police Station Model Town, against both the petitioners under M.L.R. 23 section 307, P.P.C. and section 156 of the Customs Act.

3. The case was sent to the Martial Law Authorities, but they refused to take cognizance. Accordingly, the challan against the petitioners was filed under section 156(i) 89 of the Customs Act, with the Ilaqa Magistrate on 28‑11‑1971.

4. According to the parawise comments lodged by the respondents, it appears that the case papers containing the seizure report were submitted to the Customs authorities on 24‑5‑1972, on 2‑6‑1972 the Collector of Customs, Lahore, issued notices to both the petitioners to show‑cause why action should not be taken against them and why the seized property should not be confiscated under sections 156(1)8 and 89 and 157 of the Customs Act, 1969. The petitioners submitted their reply to the show‑cause notices on 4‑7‑1972, inter alia claiming that the gold was not foreign, but had been purchased locally. The Deputy Collector, Customs, Lahore, then took up adjudication proceedings. After hearing the petitioners, he ordered confiscation of the seized property on 29-1‑1976. A joint appeal filed by the petitioners against the said order was dismissed by the Collector of Customs, Lahore, on 30‑6‑1976. A revision petition filed by the petitioners was also dismissed by the Second Secretary, Government of Pakistan on 10‑6‑1979.

5. While the adjudication proceedings had just commenced, the criminal case pending against the petitioners before the Ilaqa Magistrate was transferred to the Special Judge, Customs, Lahore in August, 1974. The said case was ultimately decided on 3‑5‑1988, when both the petitioners were acquitted. In the said case, learned Special Judge Customs inter alia held that the gold was not of foreign origin, but prepared locally.

6. Being aggrieved by the orders of the Customs authorities confiscating the seized property, the petitioners preferred a writ petition in the High Court, which is now before me for disposal.

7. On behalf of the petitioners a number (if submissions have been made. First that the seized gold rennies were not of foreign origin, but locally manufactured. In this connection the learned counsel relics upon the judgment of the; learned Special Judge, Customs, Lahore, dated 3‑5‑1988. Second, that the decision of the learned Special Judge, Customs, Lahore, has greater weight and legal credence over the findings of the Customs authorities regarding the question whether the seized gold was of foreign origin or not. In this connection the learned counsel has referred to Collector of Customs v. Iqbal Hussain C.P.S.L.A. No. K‑98 of 1976, dismissed by the Supreme Court on 24‑5‑1976 and Muhammad Sarwar v. Federation of Pakistan 1988 P Cr. L.I 213 at

234. Third, that the staff of the West Pakistan Rangers had no power to make seizures outside the border belt and the seizures made by the staff of the West Pakistan Rangers within the limits of the Municipal Corporation of Lahore were, therefore, illegal. In this connection Federal Government notification S.R.O. 314, dated 11‑7‑1954 and the opinion of Mr. Sarfraz Ahmad Khan, Secretary (Customs) Central Board of Revenue, Islamabad, addressed to Mr, Siblain Ahmad Fazli, Collector of Customs, Lahore, vide his memo. No.3(57)SS(J)/86, dated 15‑7‑1986 are referred. Fourth and last, that the notice given to the petitioners by the Customs under section 168 of the Customs Act were time‑barred and the Customs authorities were bound to release the seized goods. In the light of these submissions it is urged that the confiscation of the seized goods by‑the respondent being illegal, null and void, the impugned orders deserve to be set aside.

8. On behalf of the Customs authorities it is submitted that the adjudication of the question whether the gold seized by the Customs was of foreign origin or not, was exclusively that with the officers of Customs, which was final and binding in the matter and any decision given by another Court could not affect the same. In this connection it is submitted that the Supreme Court has granted leave to appeal against the decision given by this Court in Muhammad Sarwar's case. It is further submitted that the case papers relating to seized property were first delivered to the Customs authority by the staff of the West Pakistan Rangers on 24‑5‑1972 and, therefore, notices served by the Customs authorities on the petitioners on 2‑6‑1972 were within time and the question whether the earlier action of the Rangers in seizing the goods was illegal, is of no relevance.

9. I have given my anxious consideration to this case. The first question that arises is whether the action of the West Pakistan Rangers in apprehending the petitioners within the Corporation limits of Lahore for offences under the Customs Act can be said to be legal. It is obvious that when one reads the Preamble and section 6 of the West Pakistan Rangers Ordinance, 1959, it becomes clear that the Rangers force is primarily intended to protect and maintain order in the border belt. The powers given to the officers of the West Pakistan Rangers, not below the rank of Head Constables/Hawaldars, to act as Land Customs Officers, is only restricted to the areas within their respective jurisdictions. S.R.O. 314, dated 11‑7‑1959 issued by the Central Board of Revenue under section 6(1) of the Land Customs Act, 1924, clearly states that such officers of the West Pakistan Rangers posted in Lahore, Kasur and Chunian Tehsil of i Lahore District can act as Land Customs Officer L.C.O. within the areas of their respective jurisdiction. Since under the West Pakistan Rangers Ordinance, 1959 the area and jurisdiction open to the Rangers force is the border area only, the Rangers force had no legal authority to make seizures in respect of offences under the Land Customs Act, 1924, within or around the Corporation limits of Lahore.

10. As regards the question whether the decision of a Criminal Court overrides that of the Customs Officer, the decision of the learned Special Judge, Customs, Lahore will take precedence over the decision of the Customs Officer, i in terms of the general principle laid down in Muhammad Sarwar's case (supra). In this connection, Iqbal Hussain case (supra) may also be referred. Apart from the general principle stated in Muhammad Sarwar's case (supra), the rule stated in section 179‑A of the Customs Act, which was enacted on 15‑1‑1977 and, repealed on 28‑6‑1979, shall also apply. See Muhammad Sarwar's case (supra). In this view of the matter, I have no hesitation in holding that the gold rennies seized from the petitioners were not of foreign origin and that the adjudication proceedings were, therefore, without jurisdiction.

11. As regards the question whether the notices were served on the petitioners within time, as required by section 168(2). of Customs Act,. it is obvious that they were not so served. The seizure was made on 24‑11‑1971, whereas the show‑cause notices were issued on 2‑6‑1972, well out of time.

12. The upshot of the above discussion is that the orders of the Customs authorities dated 29‑1‑1976, 30‑6‑1976 and 10‑6‑1979 having been passed without lawful authority, deserve to be set aside.

13. For the foregoing reasons, this writ petition is accepted and the orders of the respondents dated 29‑1‑1976, 30‑6‑1976 and 10‑6‑1979 are declared to have been passed without lawful authority and are hereby set aside. The seized ‑property, including the Scooter and 298 gold rennies each weighing ten Tolas should be returned to the petitioners. In case the seized gold rennies have been melted down, two thousand nine hundred and eighty (2980) Tolas of gold of 998 purity should be returned to the petitioners. In case Scooter LEH‑8907 has been sold its money equivalent realised in the sale, shall be refunded to Muhammad Tahir, petitioner No.1, the owner of the Scooter. In case any penalties have been paid by the petitioners, the same shall be refunded to them.

14. This petition is accepted with costs. Rupees two thousand is fixed as counsel fee, which shall he paid to the petitioners. H.B.T./M‑1174/L Petition accepted.