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Writ Petition No.368 of 1983, decided on 19th June, 1984.

---S.2--State Bank of Pakistan Notification No. E/1/7/8/SB, dated 11th May, 1978--Foreign currency, import of--Any amount of foreign currency, held, can be imported into Pakistan under State Bank Notifica tion No.E/1/7/8/SB, dated 11-5-1978.

---S.156, cls. (8), (77), (81), (82) & (89)--Provisional Constitution Order (1 of 1981), Art.9--Smuggling of currency--Allegations against petitioner that he had not brought any foreign currency from outside Pakistan but had purchased same from inside Pakistan and in collusion with Customs Officer prepared a bogus declaration of foreign currency, not substantiated by any evidence--Concerned officer of Customs Department charged for this irregularity but allegations against accused not at all proved--Authorities having no material before them to presume that accused had not brought foreign currency from outside Pakistan- Accused declaring currency on same date he arrived in Pakistan, held. a circumstance sufficient to prove that he had brought it from outside Pakistan.

--S. 156, cls. (8),(77), (81), (82) & (89)--Smuggling of currency--Attempt to smuggle or actual smuggling of currency out of Pakistan not proved- Arrest of accused on such allegations, held, uncalled for and illegal. Crown v. Muhammad Rafique Safdar and others P L D 1952 Sind 281 and Abdul Salam v. The State 1984 P Cr. L J 1133 ref.

--Art.9--Customs Act (IV of 1969), S. 156--Constitutional jurisdiction- Petitioner having a remedy by way of appeal under a statute but impugned order of respondent against petitioner illegal ab initio- Petitioner, held, could file writ petition instead of filing an appeal against said order.--[Appeal (civil)]. The Murree Brewery Co. Limited v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 S C 279 rel. Zaheer Ahmad Khan for Petitioner. Raza Ahmad Khan, Deputy A: G. for Respondents. Date of hearing: 19th June, 1984.

By this writ petition under Article 9 of the Provisional Constitution Order, 1981, the petitioner Khan Muhammad has challenged the order dated 18-3-1983 of respondent No.1 whereby foreign currency was seized from the petitioner. 2. The facts of the case are that the petitioner, a citizen of Afghanistan, arrived at Torkham Land Customs Station from Afghanistan on 13-3-1983. He was in transit to U.K. He declared foreign currency at the Customs Station and the Customs Officer on duty issued to him the relevant from of the declaration. The petitioner had to go to U.K. via Dubai and he travelled to Islamabad. The foreign currency in his possession was checked by the Customs Authorities at Islamabad but certain papers relating to his visa were left at Peshawar, so he could not travel from Islamabad. He came back to Peshawar and got his booking from Peshawar to Karachi for 18-3-1983. On the said date at about 5.00 p.m., he was intercepted by Peshawar Customs authorities when he was proceeding to the aircraft to travel to Karachi. The bag containing foreign currency, which was in his possession, was also searched and the foreign currency was seized and a show-cause notice was issued to him. He was arrested on 20-3-1983 but was released on bail on 19-5-1983. In the show-cause notice, which was issued on 15-7-1983 under clauses (8), (77), (82) and (89) of subsection (1) of section 156 of the Customs Act, 1969 by the Collector of Customs, Peshawar, it was alleged that the foreign currency seized was in excess of the amount declared by him, that the currency was never brought from Afghanistan but was collected locally, that the petitioner was not the owner of the currency and was only a carrier and that the currency was being smuggled to Dubai. The petitioner submitted his reply to the said show-cause notice wherein he drew the attention of the Customs authorities to the conditions prevailing in Afghanistan and affirmed that he was a businessman in Kabul and the foreign currency belonged to him and some other merchants of Kabul. During the proceedings before the respondent No. 1, in pursuance of the show-cause notice, neither any prosecution evidence was recorded nor the petitioner was afforded an opportunity to produce any evidence. However, the respondent No. 1, vide order dated 10-10-1983, confiscated the foreign currency under section 156(1), clauses 8 and 89 of the Customs Act and also imposed personal penalty of Rs.50,000 on the petitioner. The petitioner has challenged the aforesaid order on the grounds inter alia that the import of foreign currency into Pakistan was no offence in view of the Notification No.F.E. 1/78-SB, dated 11th May, 1978 issued by the State Bank of Pakistan and that he had not even attempted to smuggle the foreign currency out of Pakistan. 3. In so far as the question of importation of foreign currency into Pakistan is concerned, there is no restriction thereon. An amount of foreign currency can be imported into Pakistan under the aforesaid notification of the State Bank of Pakistan dated 11th May, 1978. This position was not controverted by the learned counsel for the respondents. His objection was that the petitioner had not brought any foreign A currency from outside Pakistan but he had purchased the same inside Pakistan and had in collusion with the Customs Officer, posted at the Land Customs Station Torkham prepared a bogus declaration of foreign currency. However, this allegation is not substantiated by any evidence. The concerned officer of the Customs Department posted at Torkham on the relevant date was charged for this irregularity but this allegation against the petitioner was not at all proved. It was an unfounded allegation. The respondents had no material before them to presume that the petitioner had not brought the said foreign currency from outside Pakistan or that he had purchased this foreign currency from inside Pakistan. The petitioner had declared the said foreign currency on the same date that he arrived in Pakistan. This circumstance alone was sufficient to prove that he had brought it from outside Pakistan. Needless to say that there is no restriction on the importation of foreign currency into Pakistan. 4. In so far as the other allegation that the petitioner intended to smuggle the foreign currency out of Pakistan is concerned, that also was not proved on the date when the currency was seized from the petitioner. No doubt, the petitioner has mentioned in the writ petition that he was in transit to U.K. via Dubai but at the relevant time there was not even an attempt on his part to smuggle the currency out of the country. He had not boarded at Islamabad any flight going out of the country. Actually he had not boarded any flight at Islamabad. He had returned to Peshawar and from there he intended to go to Karachi, for which purpose he had booked a seat from Peshawar to Karachi by domestic Flight PK-329. This flight was to terminate at Karachi. Even if he had boarded this flight from Peshawar, he would not have committed any offence of smuggling because he had to leave that flight at Karachi and if he intended to go out of Pakistan, then he was bound to get a booking in some other flight which was to go out of Pakistan. It cannot be concluded by any stretch of imagination that a person going from Peshawar to Karachi had committed the offence of smuggling any goods out of Pakistan for the simple reason that he was still in Pakistan and had not made any attempt to go out of Pakistan. His arrest at Peshawar on the allegation that he was attempting to smuggle foreign currency out of Pakistan was uncalled for and illegal. At that stage there was neither any attempt at or actual smuggling out of Pakistan. At the most it could be a preparation towards the commission of the offence of smuggling but it was neither attempt at or actual smuggling till that stage. In support of this contention we would venture to cite the cases of Crown v. Muhammad Rafique Safdar and others, P L D 1952 Sind 28 and Abdul Salam v. The State 1984 P Cr. L J 1133. We would, therefore, observe that the petitioner had not, in boarding a' flight from Peshawar to Karachi, committed any offence of smuggling of any prohibited goods out of Pakistan. It was contended by the learned counsel for the respondents that the petitioner intended to leave the country but he had made no declaration about the foreign currency in his possession. This point is without any merit for the simple reason that the petitioner was only going upto Karachi when he was arrested and it could not be presumed that he intended to smuggle the currency out of Pakistan. 5. A preliminary objection was raised by the learned counsel for the respondents that the petitioner had not exhausted other remedies available to him under the Customs Act before filing the writ petition. It was urged by him that the petitioner could file an appeal against the impugned order of respondent No.1 and he had not availed of that right and as such the writ petition was misconceived. We have given our serious consideration to this aspect of the matter. No doubt, the petitioner could file an appeal under section 193 of the Customs Act, 1969 to the Central Board of Revenue against the impugned order o respondent No.1, but the impugned order being illegal ab initio, the petitioner had a right to file a writ petition instead of filing an appeal, under the Act. In arriving at this conclusion, we are supported by' the case of The Murree Brewery Co. Limited v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLDI 1972 S C 279. 6. For the aforesaid reasons, we would accept this writ petition with no order as to costs. The foreign currency seized from the petitioner shall be returned to him in accordance with the relevant rules/regu lations. M.Y.H Petition accepted.

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