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‑ Ss. 2(s) & 156 (1)(89) ‑ Import and Export (Control) ' Act (XXXIX of 1950), S. 3(1) ‑ Foreign Exchange Regulations Act (VII of 1947), Ss. 5 to 8 ‑ Notification No. F. E. 1/78‑SB dated. 11‑5‑1978‑Smuggling‑Foreign currency‑Person importing foreign currency into Pakistan in terms of Notification dated 11‑5‑1978 is obliged to make declaration in form prescribed by State Bank of Pakistan if so required by Customs Authorities at time of his arrival and not subsequent to that.

(b)

CU stoms Act (IV of 1969)‑

‑‑ Ss. 2(s)(iii) & 9, 156(1)(89)‑"Smuggling"‑Foreign currency Prohibitedt'restricted goods brought through unspecified routes in order to constitute "smuggling" importation or exportation should be in breach of any restriction or prohibition for the time being in force, or it should be with object of evading payment of customs duties or taxes livable thereon‑If there is no prohibition or restriction for import or export of any of items specified in sub‑cls. (i), (ii) & (iii) of S. 2(s) of Act and no evasion of payment of customs duties or taxes leviable thereon is involved, fact that foreign currency was originally imported from a route other than specified routes, held, would not constitute "smuggling".

Begum Zarina Naz v. M. A. Rahman and 13 others P L D 1975 Kar. 482; Jalil v. The State 1978 P Cr. L J 155; S. Ch. Niaz Ahmed and others v. the State P L D 1978 Kar. 774; Syed Shabbir Ahmed Shah v Pakistan through the Secretary to the Government of Pakistan, Ministry Interior/ Defence, Telanabad and 3 others P L D 1979 Kar. 68; Salooka Steels Limited v. Director‑General, Coast Guards of Pakistan P L D 1981 Quetta 1 and Central Board of Revenue and another v. Khan Muhammad P L D 1986 S C 192 ref.

(c) Customs Act (IV of 1969)‑

‑‑ S. 156(1)(89)‑Constitution of Pakistan (1973), Art. 199‑Civil Procedure Code (V of 1908), S. 11‑Conviction recorded under S. 156(1)(89) of Act IV of 1969 by Special Judge/Foreign Exchange Tribunal and maintained by High Court in appeal‑Not to cons titute res judicata as to debar High Court from taking a different view in writ petition ‑Judgment recorded against accused in criminal case, held, would not constitute res judicata for purpose of constitu tional petition, for the reason that criminal prosecution and depart mental proceedings for confiscation were independent of each other; former being judicial proceedings while latter departmental proceedings in condemnation of goods for purpose of revenue.

Adam v.'Collector of Customs, Karachi and another P L D 1969 S C 446 and P L D 1986 S C 192 rel.

(d) Customs Act (IV of 1969)‑

‑‑ S. 156(1) (89)‑Smuggling‑Foreign currency ‑ Currency seized from accused confiscated by authorities but orders of confiscation were based on grounds not sustainable in law‑Orders declared as being without lawful authority and of no legal effect‑Currency confiscated was restored to accused. Yanya Bakhtiar for Petitioner.

Yaqub Khan Yousufzai, A.‑G. for Respondents.

Date of hearing: 24th May, 1986.

JUDGEMENT

AJMAL MIAN, At;TG. C. J.‑This petition is directed against the orders, dated 8th April, 1984, 25th June, 198 , and 1st April, 1985, passed by the respondents Nos. 1, 2 and 3 respectively confiscating 65 lacs Irani Rials equivalent to about Rs. 1,10,000 seized from the petitioner on 27th October, 1983, at the Balali Check Post of the Customs, while the petitioner was travelling in Bus No. QAB‑9‑45 and was proceeding towards Quetta. The brief facts leading to the filing of the above petition as per averments in the petition are that the petitioner a boy who is Afghan national, aged about 14 years at the relevant time had come along with his father, also an Afghan national, from Afghanistan via Chaman in September, 1983, and were lodged in Mohajir Refugee Camp in Roghani near Chaman and were issued Identity cards Annexure "A". They also received their Ration Card for drawing ration from the Camp (Annexure "D"). It has been averred that after their arrival in Pakistan, the petitioner and his father went to the Customs Department in Chaman to inquire about the changing of Irani currency. Thereupon, the Customs Department told them that the currency could only be changed by the State Bank in Quetta or by an Authorised Dealer there. It has also been averred that they were not‑asked to fill in any form of declaration about the currency. It has been further averred that since the petitioner's father was very old man, he asked the petitioner to take the Irani Rials to Quetta where his Uncle Haji Saifuddin also an Afghan; national would help him. With the above object, the petitioner boarded the above bus on 27^th October, 1983, from his Mohajir Camp, near Chaman for Quetta and was stopped at several check posts on the way, but at the Balah Check Post, the petitioner among others, was searched in the Bus by the Customs Sepoy, who found the bulge of currency and asked the petitioner what it was. It has been asserted that thereupon, the petitioner told the Sepoy that it was Irani Tumans and that he was taking them for exchange in Qaetta, but the Customs Officer took the currency and told that he would change it for him. But instead of changing, after several hours, he served a notice under section 171 of the Customs Act, 1969 (herein after referred to as the "Act") and the petitioner was arrested. It has been further averred that after a few days of the petitioner's arrest, his father expired on account of heart attack. After that the petitioner was issued a show‑cause notice, dated 24th December, 1983, by the Deputy Collector Customs under section 156(1) (89) of the Act for contravening section 3(l) of the Import and Export (Control) Act, 1950, read with sections 2(s) and 16 of the Act and sections 5‑8 of the Foreign Exchange (Regulation) Act. The above notice was contested by a reply dated 23rd January, 1984. However, the learned Collector of Customs, the respon dent No. 1, by his order, dated 8th April, 1984, ordered the forfeiture of the above currency. The petitioner went in appeal, but the same was dismissed by the Central Board of Revenue i. e. the respondent No. 2, by its rder, dated 25th June, 1984. The revision filed against the above order was also dismissed on the ground of delay in filing of the same by an order, dated 1st April, 1985, by the Secretary, Ministry of Finance, Islamabad, i. e. respondent No. 3. The petitioner thereafter filed the present petition.

2. It may be pertinent to observe that while the proceeding before the Customs Officers was pending, the petitioner was proceeded with under sections 4, 8. 9 and 23 of the foreign Exchange (Regulation) Act, 1947, before the learned Sessions Judge/Foreign Exchange Tribunal, Quetta which by its judgment dated 12th February, 1985, in Special Case No. 50 of 1983, convicted the petitioner under section 156(1) (89) of the Act and sentenced him to two years' R. I. and a fine of Rs. 1,000 and in default further R. I. for six months. The petitioner filed Customs Appeal No. 2 of 1985, which was disposed of by a learned Single Judge of this Court by a judgment dated 7th September, 1985, whereby the conviction was maintained, but the petitioner being a young man of hardly 17‑18 years of age under section 5 of the Probation of Offenders Ordinance, 1960, has been enlarged on probation for 2 years on furnishing two sureties to the sum of Rs. 50,000 of 25,000 each on the condition that he would not repeat the offence.

3. In support of the above petition, Mr. Yahya Bakhtiar, learned counsel for the petitioner has urged as follows:‑

(i) That since there was no restriction or prohibition for bringing in the foreign currency and on the contrary under Notification No. F. E. I/78‑SB, dated 11th May, 1978 (hereinafter referred to as the "Notification") issued by the State Bank of Pakistan providing that any person could bring into Pakistan from any place outside Pakistan without limit any currency notes or bank notes other than un issued notes and notes legal tender in Pakistan, the petitioner was not guilty of smuggling in terms of section 2(s) and 156(8) of the Act;

(ii) That since there was no prohibition or restriction for bringing into Pakistan any foreign currency and as evasion of payment of custom duties or taxes was not involved, sub‑clause (iii) of clause (s) of section 2 of the Act, was not attracted to; and

(iii) That since the proceedings before the Customs Authorities and before‑ the Customs Tribunal were independent, the conviction recorded in the above criminal proceeding would not affect the present proceeding.

On the other hand, Mr. Yaqub Khan Yousafzai, learned Advocate General appearing for the official respondents has submitted as under:‑

(i) That when the petitioner was arrested at the Balali Check Post, he was asked to make declaration,

which he declined and, there fore, be was not entitled to the benefit of the Notification; and

(ii) That since admittedly, the petitioner had entered into Pakistan by a route other than the route declared under section 9 or 10 of the Act, the bringing in the foreign currency from the unspecified route would constitute smuggling in terms of sub‑clause (iii) of clause (s) of section 2 of the Act.

4. Before taking up the above contentions it may be pertinent to refer to the relevant provisions of the Act, namely, section 2(s), sections 9,10, 16, 156(8), (9) and (89) and the Notification which reads as under:‑

"Section 2(s).‑"Smuggle" means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force. or evading payment of customs duties or taxes leviable thereon‑

(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances, or

(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the Official Gazette, which, in each case, exceed five thousand rupees in value, or

(iii) any goods by any route other than a route declared under sec tion 9 or 10 or from any place other than a custom‑station, and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly."

Section 9. Declaration of Customs‑Ports Customs Airports, etc--The Board may, by notification in the official Gazette, declare‑

(a) the places which alone shall be customs‑ports or customs‑airports for the clearance of goods or any class of goods imported or to be exported;

(b) the places which alone shall be land customs‑stations, for the clearance of goods or any class of goods imported or to be exported by land or in land waterways;

(c) the routes by which alone goods or any class of goods specificd in the notification may pass by land or inland waterways into or out of Pakistan, or to or from any land customs station or to or from any land frontier;

(d) the places which alone shall be ports for the carrying on of coastal trade with any specified customs‑ports in Pakistan; and

(e) what shall for the purposes of this Act be deemed to be a custom house and the limits thereof."

"Section 10. Power to approve landing places and specify limits of Customs‑Stations.‑The Board may, by Notification in the Official Gazette‑

(a) specify the limits of any customs‑station, and

(b) approve proper places in any customs‑station for the loading and unloading of goods or any class of goods."

"Section 16. Power 1o prohibit or restrict importation and exportation of goods.‑The Federal Government may, from time to time, by Notification in the Official Gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land."

Section 156(8)(9) & (89)

Section of the

Offences Penalties Act to which

Offence has

reference

1 2 3

8. If any goods be smuggled Such goods shall be liable to con‑ General

into or out of Pakistan. fiscation and any person con

cerned in the offence shall be

liable to penalty not exceeding

ten times the value of the goods;

and upon conviction by a

Special Judge he shall further

be liable to imprisonment for a

term not exceeding ten years

and to fine not exceeding ten

times the value of such goods,

and, if the Special Judge in his

discretion so desires, also to

whipping:

Provided that, in the case of

such goods essential to the life

of the community as may be

notified by the Federal Govern

ment in the official Gazette,

the sentence of imprisonment

shall not be less than five years

and the person convicted shall

also be awarded sentence of

whipping, and the whole or any,

part of his property shall also

be liable to confiscat;on in

accordance with the provisions

of the Prevention of Smuggling

Act, 1977.

1 2 3

9. (i) If any goods, not being such goods shall be liable to 15 & 16 goods referred to clause 8‑are confiscation; and any person imported into or exported from concerned in the offence shall Pakistan evading payment of also be liable to a penalty not

leviable customs‑duties or in exceeding two times the value i

violation of any prohibition or of the goods.

restriction on the importation

or exportation of such goods

imposed b) nr under this Act

or any other law; or

(ii) if any attempt be made.

so to import or export any

such goods; or

(iii) if any such goods be

found in any package produc ed before any Officer of cus toms as containing

no such goods; or

(iv) if any such goods be found either before or after landing or shipment to have been concealed in any manner on board any conveyance with in the limits of any sea‑port, air‑port, railway station or other place where conveyances are ordinarily loaded or un loaded, or

(v) if any such goods, the exportation of which is prohibi ted or restricted as aforesaid be brought within a customs area or to a wharf, with the intention of loading them on a conveyance for exportation in violation of such prohibition or restriction.

89. If any person without lawful Such goods shall be liable con‑ General,

excuse, the proof of which fiscation and any person con

shall be on such person, acquir‑ cerned in the offence shall be

es possession of, or is in any liable to a penalty not exceeding

way concerned in carrying, ten times the value of the goods;

removing, depositing, harbour‑ and, where the value of such

ing,keeping or concealing, or goods exceeds ten thousand

in any manner dealing with rupees, he shall further be liable

smuggled goods or any goods upon conviction by a Special

with respect to which there may Judge, to imprisonment for a

be reasonable suspicion that term not exceeding six years

they are smuggled goods: and to fine not exceeding ten

Provided that if thes mug‑ times the value of such goods

gled goods be gold bullion and if the Special Judge in his

or silver bullion the onus of discretion so orders also to whipping proving the plea that such bul‑

lion was obtained by processing to or other‑ means employed in Pakistan and not by smuggling shall be upon the person taking that plea."

Notification no f e 1/78-SB, import of currency notes

In pursuance of the Notification of the central government

No F 1 (8)-EF/49 l, dated the 2^nd may 1949 and in super session

Of the state bank of the Pakistan notification No F E 3/60 SB

Dated the 27^th August 1960 the state bank of Pakistan is pleased to

permit any person to bring into Pakistan from any place outside

Pakistan without limit any currency notes or bank nites other than:

1 Unissued notes and

2 Ntes lehal tender in Pakistan provided that he shall if so required

by the customs authorities at the time of his arrival make

a declaration in the form prescribed by the state bank if

Pakistan in this behalf of the total amount if notes brought in.

5. It may be noticed that the above‑quoted clause(s) of section 2 of the Act defines the word "smuggle" as means the bringing into or taking out of Pakistan in breach of any prohibition or restriction for the time being in force or evading payment of customs duties or taxes leviable thereon. It may further be noticed that sub‑clauses (i) and (ii) specify the items with the proviso that any other goods which may be notified by the Federal Government. The above items include currency, whereas sub clause (iii) of the above clause (s) provides that the import of any goods by the route other than a route declared under section 9 or 10, shall also constitute smuggling. It may further be pointed out that proviso to sub‑clause (iii) extend the scope of the term "smuggle" by providing that it includes an attempt, abetment or connivance etc.

Whereas, under clause (c) of section 9, the Central Board has been empowered by a notification in the Official Gazette to declare the routes by which alone goods or any class of goods specified in the notification may pass by land or inland waterways into or out of Pakistan. It may also be noticed that‑ under section' 10 the Board has been authorised by a notification in the Official Gazette to specify the limits of any customs‑station and approve places for loading and unloading of the goods.

It may also be noticed that under section 16 of the Act, the Federal Government has been empowered by a notification in the official Gazette from time to time to prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land.

Whereas, clause (8) of section 156, of the Act deals with the punish ment for smuggling any goods into or out of Pakistan, and provides the punishment of confiscation and the imposition of penalty not exceeding ten times the value of the goods, and awarding of sentence by the Special Judge for a term not exceeding 10 years and fine not exceeding ten times the value of the smuggled goods. It also provides an embargo of minimum sentence of five years in respect of the essential goods to the life of the community. It may further be noticed that clause (9) deals with the importation and exportation of the goods with the object of evading the payment of customs duty on the importation or exportation of such goods and provides that such goods shall be liable to be confiscated in addition to the imposition of penalty not exceeding two times value of the goods involved.

Whereas, clause (89) deals with the acquiring of possession of smuggled goods by any person without lawful excuse or its concealment or carrying, removing, depositing or harboring. It provides penalty of confiscation and imposition of fine not exceeding ten times in case when the value of the goods does not exceed 10,000 rupees, but in case it exceeds the above value, the person having possession incurs the criminal liability of being awarded six years' R. 1. and fine not exceeding 10 times of the value.

6. It may further be noticed that by the above notification, the Central Government permitted bringing into Pakistan from and place outside, without limit any currency notes or Bank notes other than (i) unissued notes and (if) notes legal tender in Pakistan.

7. After having dealt with the relevant provisions of the Act and the Notification, we may dilate upon the: case‑law on the subject relied upon by Mr. Yahya Bakhtiar, learned counsel for the petitioner and Mr. Yaqub Khan, learned Advocate‑General, Mr. Yahya Bakhtiar, learned counsel for the petitioner in furtherance of his above submission has referred to the following cases:‑

(i) Begum Zarina Naz v. M. A. Rahman and 13 others reported in P L D 1975 Kar. 482 in which, a Division Bench of the erstwhile High Court of Sind and Baluchistan while construing section 2(s) (a) of the Act, read with SRO‑1426(1)/73, dated 5tb October, 1973, and section 14 of the Pakistan Coast Guards Act, 1973, held that since the cars are neither mentioned in section 2 (s), clause (a) or (b), nor in the Notification seizure of the Car as smuggled goods was illegal.

(ii) Jalil v. the State reported in 1978 P Cr. L J 155. In the above case, a learned Single Judge of the Sind High Court while construing sections 9 and 23 of the Foreign Exchange Regulation Act, 1947, read with Notification No. 1(1)‑2‑EF/56, dated 1st August, 1956, held that merely coming into possession of foreign exchange by itself 'does not constitute an offence. It was further held that the prosecution was bound to prove that the accused after becoming owner of foreign exchange failed to offer same ,for sale within one month of his acquisition as required under the above Notification and that since the prosecution had failed to prove the 'same, the accused was entitled to benefit of doubt.

(iii) S. Ch. Niaz Ahmad and others v. The State reported in P L D 1978 Kar. 774 in which, a Division Bench of the Sind High Court while construing sections (s) and 156(9) of the Act, held that mere fact of importation or exportation of certain goods being prohibited by law does not amount to smuggling. It was further held that in order to constitute smuggling, the goods must be notified by the Federal Government under section 2 (s) (a). It was also held that since "Charas" was not so notified, the same cannot be subject matter of smuggling, though the same may amount to an offence under section 156(9). It was also pointed out that clause (8) of sec tion 156, and clause (9) of the above section 156, must run parallet and that the goods covered under the former clause cannot be the subject‑matter of the latter clause and, if the above clauses are not so read, they will be destructive of each other.

(iv) Syed Shabbir Ahmed Shah v. Pakistan through Secretary to the Govern ment of Pakistan, Ministry Interior Defence, Islamabad and 3 others reported in P L D 1979 Kar. 68. In the above case, the view found favour with the learned Judges of the Division Bench in the above, reported case of 1978 was reiterated and it was held that since the car were not notified item under section 2(s), the same could not have been the subject‑matter of smuggling, notwithstanding the fact that the import thereof is prohibited under notification issued in exercise of power conferred by section 3(1) of the Import and Export (Control) Act, 1950 It may ,be advantageous to reproduce a passage from the above judgment which reads as follows:--

The learned Deputy Attorney‑General tried to persuade us that the view taker. in the aforesaid case is untenable in law for it ignores the broad definition of smuggling' given in the Customs Act which according to him would include‑ any item import or export of which is prohibited by any taw for the time being in force 'and not limited to articles specified in this clause or, notified under this clause. This argument has been considered in the'af6resiid case and we' see no reason ‑to depart from the view taken, for according to us sub‑clause (a) his t6 be read with Clause (s) bf section 2 for otherwise the former in isolation will be m6aningless and‑ further more the vital distinction between clauses (8) and (9) of section 156 of the Act will be totally lost. We, therefore, re‑affirm the view taken in the aforesaid decision to which one of us is party."

(v) Salooka Steels Limited v. Director‑General, Coast Guards of Pakistan reported in P L D 1981 Quetta 1. In the above case, a Division Bench of this Court while construing sections 2 (s) (b), 8, 9 and 10 of the Act held that a ship brought from any other route other than the declared under section 8 or 10 of the Act or from any place other than the customs‑station, cannot be said to be a smuggled goods. The views taken by the Sind High Court in the above three cases were reiterated. While construing clause (s) of section 2 of the Act, it was pointed out that the first part of the above section controls the latter part. In this regard, it will be advantageous to reproduce the observations on the above point, which read as follows:‑

"Page 7

This view was reiterated in Shabbir Ahmed Shah v. Pakistan P L D 1979 Kar. 68 and in unreported Judgment in the case of Mahmood Alam v. Director‑General Pakistan Coast Gua ds and others C. P. No. 745 of 1,979. 1 am in respectful agreement with the views expressed by their Lordships of the Sind High Court in all these ca ,s. I may however add that the first part of clause (s) of section 2 of the Customs Act, which henceforth I will call the controlling part, qualifies and controls the categories of goods listed in, sub‑clauses (a) and (b). That means that every goods which are brought into Pakistan, or are taken out of it, must be either prohibited/restricted goods or should be so brought in or taken out for the purposes of evading customs duties or taxes. Either of these two conditions must be fulfilled by the categories of goods listed in sub‑claues (a) and (b). Sub‑clause (b) is not relevant to the facts of this case. But in order to illustrate the point I may say that prohibited; restric ted goods, if brought through unspecified routes, became smuggled goods in terms of this sub‑clause ; and so also if they are brought such rouies to evade custom duty or taxes."

(vi) Central Board of Pevenue and another v. Khan Muhammad reported P L D 1986 S C 192. In the above case, the facts were that quite 5:ibstantial amount of foreign currency was recovered from the respondent while he was proceeding to the aircraft for embarkation at the Peshawar Air Port. The above seizure was challenged through a writ petition before the Peshawar High Court, which was allowed by a Division Bench. The Central Board of Revenue went in appeal before the Honorable Supreme Court of Pakistan, which was dismissed. It may be advantageous to reproduce para. 7 of the above judgment, which has some bearing to the controversy in issue, which reads as follows:‑

"Para. 7:

Now clause (8) of section 156, deals with the offence of smuggling goods into or out of Pakistan and clause (89) provides for punish ment for acquiring possession of or in any way being concerned in carrying, removing, depositing, harboring, keeping or concealing any smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods. The learned Judges of the High Court have referred to Notification No. F. E. I/ 78‑SB, dated 11th May,1978, issued by the State Bank of Pakistan by which any person could bring into Pakistan from any place outside Pakistan without limit, any currency notes or bank notes other than un issued notes or notes legal tender in Pakistan. The learned Deputy Attorney‑General has not been able to bring to out notice any notification superseding the aforesaid notification of the State Bank of Pakistan putting any embargo on the import of such currency notes. In the circumstances he has not pressed the case as that of illegal importation of foreign currency by the respondent. Indeed the findings of the Collector of Customs in the adjudication proceedings were also that the respondent had not brought any foreign currency from outside Pakistan but according to him the respondent had collected the foreign currency seized from his possession locally. In view of this the learned Deputy Attorney‑General was unable to press the charge under clause (89) of section 156, for the simple reason that if there was no restriction or prohibition on the import of foreign currency notes, the possession of such notes cannot be said to be the posses sion of smuggled goods or goods with respect to which there may be reasonable suspicion that they are smuggled goods. As regards clause (8) of section 156 also, in view of the admitted position that there was no prohibition on the importation of foreign currency notes, there would be no question of smuggling the same into Pakistan. The only question to be considered and indeed pressed by the learned Deputy Attorney‑General is whether the 'respondent had made an attempt to smuggle foreign currency notes out of Pakistan, so as to attract the mischief of clause (8) of section 156 of the Customs Act, 1969."

8.On the other hand, Mr. Yaqub Khan, learned Advocate‑General has relied upon un unreported order of the Honourable Supreme Court of Pakistan # dated 8th May, 1984, passed in Criminal Petition for leave to Appeal No. Q‑2 of 1984 while dismissing Petition for Leave against the, judgment of Special Appellate Court (Customs) High Court of Baluchistan whereby conviction recorded by the Special Court Customs was maintained.

Reliance has been placed particularly on the following observations :

"It was contended by the learned counsel for the petitioner that. by a Notification No. F. E: 1/78‑SB dated I Ith May, 1978, issued by the State Bank of Pakistan any person is permitted to bring into Pakistan from any place outside Pakistan without limit any currency notes or bank notes and as such the petitioner could not be charged or tried for an offence of smuggling of foreign currency. This contention was repelled by the learned Special Appellate Court (Customs) relying upon the provison to the notification in question acc6rding to which a person at the time of his arrival is required to make a declaration in the form prescribed by the State Bank of Pakistan in this behalf of the total amount of notes brought in by him, if so required by the Customs authorities. A plain reading of the notification would make it clear that the restriction with regard to bringing foreign currency into Pakistan is waived in respect of persons arriving into Pakistan. Such arrival into Pakistan should necessarily be one through such authorised routes or places which are manned by Customs staff and are declared ports, airports or land customs‑stations within the meaning of section 9 of the Customs Act, 1969, by a notification issued by the Board in the official Gazette. The question of requiring any person to make a declara tion at the time of his arrival would hardly arise in the case of those persons, who enter into Pakistan otherwise than through authorised routes which are not manned by any Customs officials. The peti tioner is said to be an' Afghan national and was apprehended from within the Quetta town. In the circumstances, the Customs authorities had hardly any opportunity of calling upon him to make a declaration in the prescribed form in respect of the foreign currency brought into Pakistan by him as provided in the notification. Reliance was also placed on another notification by which general permission is granted by the State Bank of Pakistan to travelers to Pakistan to bring within them without any limit foreign currency notes and coins. This notification too was not applicable to the case of the appellant, as rightly held by the learned Special Appellate Court because the appellant was admittedly not a traveller."

9. It may be observed that in the instant case the Customs authorities have confiscated the petitioner's above foreign currency on two grounds, namely, that when 'he was asked to declare if he had any foreign currency after the interception of the bus, in which, he was traveling his reply was in the negative and secondly, that the foreign currency was brought into Pakistan from a route other than specified under section 9 or 10 of the Act. It is, therefore, necessary to examine whether the above conclusions are in consonance with the provisions of the Act. It may also be observed that in the above latest case of the Honourable Supreme Court o Pakistan of 1986, their Lordships have taken the view that mere possession of foreign currency would not constitute any offence in view of the notification permitting the import of foreign currency without any limit. It was not urged before us that at the relevant time, the notification was no longer in the field or that 3 months prescribed period for surrender of the above currency has expired. The only point which was canvassed by the learned Advocate‑General was that since the petitioner had failed to make a declaration when asked by the Customs staff, he was not entitled to the benefit of the notification. We may examine this aspect in more detail. It is an admitted position that the petitioner and his father entered into Pakistan from Afghanistan in September, 1983, and brought the above Irani Rials with them and they were lodged in Mohajir Refugee Camp in Roghani, near Chaman. The importation had taken place in September. 1983. It is evident that when they entered into Pakistan and imported the foreign currency in question, nobody from the Customs Department had asked them to make declaration as they had come from an unspecified route. When on 27tb October. 1983, the petitioner was searched and arrested, the above currency was in his possession. He was in fact not importing the foreign currency into Pakistan but was in possession thereof. 1t may be pointed out that under the notification, the declaration of foreign currency is not obligatory. The person importing the foreign currency into Pakistan in terms of the notification is obliged to make declaration in the form prescribed by the State Bank of Pakistan, if so required by the Customs authorities at the time of his arrival, and not subsequent to his arrival. In our view, on 27th October, 1983, when the petitioner was searched and the foreign currency was recovered from him, the declaration in terms of the notification could not have been asked by the Custom authorities, as it could not be said by any stretch of imagination that th petitioner arrived in Pakistan on the above date. Furthermore, it has been pointed out by Mr. Yahya Bakhtiar, learned counsel for the petitioner that factually, it is not correct that the petitioner was asked by the Custom staff' to make declaration of the foreign currency after he was intercepted in the bus in which he was travelling. To reinforce his above submission, he has produced a copy of the statement of. Mr. Baqar Hussain Jafety, Sepoy of the Customs Department, who intercepted the above bus, recorded by the Special Judge in the aforesaid criminal case on 7th October, 1984, in which, there is no mention that the petitioner was asked to declare the foreign currency. It may be advantageous to reproduce the same, which read as follows:‑

"P. W. 2. 1

Statement of Baqar Hussain Jafri Muslim cast

Syed age 37 Sepoy Customs Department

Naib Court Quetta

On S. A.

To examination to special Prosecutor Mr. Muhammad Iqbal Quetta.

On 27‑10‑83 1 was posted at Baleli Check Post as a Sepoy of Customs Department. My duty was from 4 a. m. to 12 noon. At about 11‑30 a. m. one Bus QAB. 9545 came from Chaman side. Accused was present in Court was a passenger in a bus. He appeared to be suspicious and I searched his person. He had a belt of cloth tied around the vest under the shirt. The accused was brought in the office accused was searched in presence of Inspector Ghulam Mustafa. From the belt 65 lacs Irani Rial were recovered. A memo of recovery was prepared. Recovery memo P/A is the same correct and signed by me.

Note. Examination‑in‑Chief is reserved for want of property.

S: R. S. A.

(Sd.) 7‑10‑84

Special Judge Customs

Quetta.

Recalled and Reaffirmed.

Examination‑in‑Chief to Mr. Muhammad Iqbal Special Prosecutor Customs.

I see_the recovery memo. Exh. P/A contains the details in Exh. P/B.

The recovery memo. Exh. P/S is signed by me. I see currency Exh. P/1 in Court till the same. I see the belt Exh. P/2, in Court, is the same from which the currency was recovered.

Cross examination to Mr. Ehsanul Haq Advocate for the accused.

The bus was coming from Chaman. The number of bus was QAB 9545. I do not know the names of the driver of the bus or owner of the bus. The accused only was brought down front the bus. There were about 20/30 other passengers in the bus. The search of the accused was made in .the office in the absence of the passengers. We did not try to call any public person to serve as a witness of recovery Ghulam Mustafa and Ansari Deputy Superintendent were present in the office. We had taken about half an hour in completing the recovery proceedings. The papers were prepared by the Inspector and at the interruption of Special Prosecutor, the witness states that I do not know where the papers were taken by the Inspector. I had the instructions to take down the accused from the bus from Havaldar Ali Sher of Customs Department. He is posted at Balali Check Post. Havaldar had given me instructions before the arrival of the bus. Havaldar had given me the description of the person but not his name. Havaldar had given me the instructions about 2/3 hours before the arrival of the bus. The duty of mine and of Havaldar was from 4 am. to 12 noon, the accused was brought down from the bus under the instructions of Havaldar. I do not know if there was any other reason for it or not. I had brought down the accused from the bus. I had brought, down the accused from the bus as per instructions and as he bad something tied around his waist which I had felt at the time. After about 5 minutes of the getting down from the bus, the' person of. the accused was searched. When the bus bad come there, no other vehicle has come there at that time. I do not know if accused 'is Afghan Refujee. Tile proceedings given by me, only had taken place there in my presence.

No re‑examination.

Dated 10‑11‑1984..

S. R. O. and A. C.

(Sd.)

Sessions Judge, Quetta."

10. He has also invited our attention to the averments contained in Paras. 5 and 7 of the petition, which have not been refuted by filing any counter‑affidavit in which, inter alia, it has been averred that 7 or 8 days after his arrival in Pakistan, the petitioner and his father went to the Customs Department in Chaman to inquire about the changing of Irani currency, which they had. Thereupon, the Customs Department told him that the currency could only be changed by the State Bank of Pakistan in Quetta or by an authori:e:l dealer there and that they were not asked to fill‑in any form of declaration about the currency.

Adverting to the above second ground, namely that since the petitioner had brought the foreign currency from unspecified route, it would amount to smuggling in view of sub‑clause (iii) of clause (s) of section 2 of the Act, it may be observed that in the above Quetta case, it has been held by a Division Bench of this Court that the first part of clause (s) controls the subsequent part of the same, meaning thereby that in order to constitute smuggling, the importation or exportation should be in breach of any restriction or prohibition for the time being in force, or it should be with the object of evading payment of customs duties or taxes leviable thereon, We are in respectful agreement with the above view. We are also inclined to hold that if there is no prohibition or restriction for the import or export of any of the items specified in sub‑clauses (i), (ii) and (iii) and no evasion of payment of customs duties or taxes leviable thereon is involved., the fact that the foreign currency was originally imported from a route other than the specified route, would not constitute smuggling. We may. also observe that it is a matter of common knowledge that the Government of Pakistan has allowed Afghani immigrants in millions to come into Pakistan from unspecified routes and, therefore, there is tacit permission on the part of the Government to allow the import of belongings of the immigrants into Pakistan by unspecified routes. There is nothing contrary on record to the averment of the petitioner that the above Irani Rials were the sale proceeds of their business which his father had brought while immigrating to Pakistan. It has also come on record that the petitioner's father after few days from the date of the petitioner's arrest died on account of heart attack after learning about the above incident.

The above‑quoted observatlon of the honourable Supreme Court of Pakistan from the unreported order, in our view, cannot be pressed into service in the instant case for more than one reasons, namely, (i) that the question whether first part of clause (s) of section 2 of the Act controls the latter part, was not brought to the notice of the Honourable Judkes of the Supreme Court : (ii) that the above observations are contained to an order refusing the leave against a judgment of conviction in a criminal proceeding, whereas, we are dealing with the departmental proceeding relating to confiscation, which are independent ; (iii) that the latest view of the Honourable Supreme Court which is of a Full Bench of 1986 and, to which, the learned Judge who had written the above leave refusal order, is a party, seems to be contrary to the earlier view; (iv) that the instant case is more akin to the above‑reported judgment of the Honourable Supreme Court of 1986, i.e. possession of foreign currency on the date of seizure is involved and not the importation and (v) the above Supreme Court case of 1986 also arises out of departmental proceeding of confiscation of the foreign currency seized, whereas, the above refusal leave order, as pointed out hereinabove, had arisen out of the criminal prosecution.

11. The only question which remains to be touched upon is as to whether the conviction recorded under section 156 (1) (89) of the Act bye the learned Special Judge, Quetta/Foreign Exchange Tribunal and which conviction has been maintained by this court in Customs Appeal No. 2 of 1984 and in which, it has been held that since the petitioner had brought the foreign currency from unspecified route, he committed the offence of the smuggling, in any way constitute res judicata as to debar this Court fro 'm taking a different view in this writ petition. In this regard, it may bet pertinent to refer to the case of Adam v. Collector of Customs, Karachi and, another (PLD1969SC‑446) in which the Honourable Supreme Court of Pakistan while dealing as to the nature of the two proceedings as follows :‑

"The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the Customs authorities. The proceedings taken by the Customs authorities for the confiscation of the goods are more in the nature of depart mental proceedings which have been characterized in English and , American jurisprudence as proceedings in condemnation of the goods for purpose of revenue and ale regarded as proceedings of a civil nature, despite their penal character. The Sea customs Authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purpose of supporting a plea of double jeopardy. On the other hard, the proceedings for the criminal prosecution of a person who commits an offence under the Act in relation to those goods, fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for commission of the alleged offence and entailing a punishment for the same. Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. The contention of the learned counsel for the appellant; therefore, that adjudication proceedings by the Customs Authorities and the prosecution of the offender in a criminal Court both of which are based on a common single act amount to "double Jeopardy" is wholly misconceived.

The above view has been reiterated in the above recent judgment of the Honourable Supreme Court, reported in P L D 1986 S C 192: The relevant observations are as follows : ‑

P.9 RA. l l:

The other contention advanced by the learned Deputy Attorney‑General was that the prosecution proposed to be launched against the respondent on the same facts has been seriously prejudiced by the High Court having interfered with the adjudication proceedings taken against the respondent. The apprehension entertained by the learned Deputy Attorney‑General is legally unfounded and untenable. It has been held by this Court in Adam v. Collector or Customs P L D 1969 S C 446 that the criminal prosecution of a person who commits an offence under the Sea Customs Act in relation ' to the goods which are seized under the said Act by the Customs Authori ties, fall in a separate category. While the confiscation proceedings taken by the Customs Authorities are in the nature of departmental receding in condemnation of goods for the purpose of revenue, the proceedings for criminal prosecution ,of a person who commits an offence under the Act in relation to those goods, are judicial proceedings for determination of the guilt of the person concerned for commission of the alleged offence and entailing the punishment for the same. It was held that both are concurrent remedies but each is independent of the other and, therefore, they cannot be deemed

to be mutually exclusive. They can proceed simultaneously and neither can remain under suspension for the sake of the other. This decision is sufficient to dispel an) doubt entertained by the depart ment in proceeding with the trial of the accused concerned with the goods involved in this case."

12. We are, therefore, inclined to hold that the above judgments recorded against the present petitioner in the aforesaid criminal case do no constitute res judicata far the purpose of the present Constitutional Petition for the reason that the criminal prosecution and ‑ the departmental‑, proceedings for confiscation art: independent from each other, the form being judicial proceedings, whereas the latter being departmental proceeding in condemnation of the goods for purpose of revenue. In this view of th matter, it is open to us to take contrary view on the basis of the considera tion of the relevant provisions of the Act and the Notification.

13. Since the impugned orders of confiscation of the foreign currency in question are based on the grounds, which are not sustainable in law a highlighted hereinabove, the same cannot be said to have been passed with lawful authority‑ and, hence, they are not sustainable in law. We, therefore; allow the above petition and declare the impugned orders as being without lawful authority and of no legal effect. We would direct the respondents to restore to the petitioner the above confiscated 7 lacs Irani Rials or equivalent Pak rupees i. e. Rs. 1,10,000 as mentioned in the Writ Petition. However, we stay the operation of this judgment for a period of 60 days in order to enable the official respondents to obtain a stay order from the Honorable Supreme Court of Pakistan, in case, they wish to challenge this judgment.

The petition stands disposed of in the above terms with no orders as to cost.

M .Y .H. Petition allowed.

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