2011 P T D 2778
[Quetta High Court]
Before Mrs. Syeda Tahira Safdar and Muha mmad Noor Meskanzai, JJ
COLLECTOR,, CUSTOMS SALES TAX AND CENTRAL EXCISE, QUETTA
Versus
Messrs MANAN KHAN, KARACHI and another
Custom Appeal No.6 of 2005, decided on 25th August, 2011.
Customs Act (IV of 1969) ---
----Ss. 2(s), 156, 168, 179, 181, 194 -A & 196 ---Smuggling ---Confiscation of vehicle and
conviction of accused -Appeal against acquittal ---Special Judge (Customs) acquitted the
accused and ordered to release vehicle in question ---Appellate Tribunal upheld findings of
Special Judge ---Appellate Tribunal had not recorded its findings on any other material, but
complete reliance had been made on the decision given by the Special Judge (Customs) ---
Appellate Tribunal was supposed to apply its mind apart from the decision of the Special
Judge, made in a criminal case; and had to decide the matter in accordance with law, which
had not been done ---Order of acquittal was set aside, in circumstances.
Ch. Mumtaz Yousaf Standing Counsel for Appellant.
Messrs Manan Khan and Ghulam Hussain Mengal f or Respondents.
Date of hearing: 9th March, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Being aggrieved by the order of Customs
Appellate Tribunal, Bench -III, Karachi, dated 18 -5-2005, instant appeal has been
preferred on the following law point s:--
(1) Whether the Tribunal has erred in Law in directing to release the seized vehicle
To the respondent?
(2) Whether the Tribunal seriously erred in Law in ignoring and passing an order
testifying an illegal vehicle and has failed to examine the fa cts of the case
brought before it.
(3) Whether findings of Appellate Tribunal were based on misreading and non -
reading of record/facts leading to the seizure of the said vehicle placed before it
during the course of hearing of appeal.
(4) Whether the l earned Appellate Tribunal has erred in holding that as the appellant
has been acquitted of the charge by the Special Judge Customs under the
criminal offence, hence appeal is decided in his favour. This view of the court is
against the law as well as settl ed principles of justice i.e. evidence of one case
cannot be used in other.
(5) Whether the learned Appellate Tribunal has decided the matter without giving
any reason and is a non -speaking order contrary to the judgments of the superior
courts in which directions have been given to the Tribunal to decide the matter
properly with cogent reasons.
(6) Whether the learned Tribunal was justified to release the vehicle on mere
sympathetic ground without discussing the merits and probabilities of the case.
(7) Whether the findings of the learned Appellate Tribunal are based on mis -reading
and non -reading of the material/facts available."
It is contention of the appellants that the impugned order is based on mis -reading, and
non-reading of the material/fact s, while the Appellate Tribunal wrongly held that as
Special Judge, Customs under criminal hierarchy has acquitted the appellant of the
charge, hence appeal should be accepted without discussing the facts, and deciding the
matter on its own merits. Further , the evidence, and the facts of one case cannot be
relied upon in other case. Therefore, the Appellate Tribunal while doing so has acted
illegally. It is further contended that the fact that the engine number of the vehicle was
tempered, and act of forger y was conclusively established in the papers obtained from
Excise and Taxation Office, Karachi, it was not considered by the Appellate Tribunal;
rather sole reliance was made on acquittal orders of the Special Judge, Customs.
Furthermore, this fact has als o not been considered by the Appellate Tribunal that the
status of the vehicle in question has been established as smuggled one, and was being
filed on the basis of fake, and forged documents. Further, Forensic Examination by the
Police Crimes Branch also transpired that engine number of the vehicle was completely
punched. It is contended that the Tribunal without considering the facts as mentioned
hereinabove, recorded its findings relying on the decision made in the criminal case,
which is illegal, thus n ot sustainable.
The learned counsel for the parties are heard, while record is perused. Through instant
appeal order dated 10 -3-2005 has been assailed, whereby the Appellate Tribunal while
holding that Customs Authorities have failed to prove their case against the appellant,
the order in original was set aside, and appeal was allowed. The learned counsel for the
appellant mostly stressed that the Tribunal has made a non -speaking order, further the
appeal is decided on the basis of the fact that the respo ndent has been acquitted of the
charge by Special Judge, Customs. It is asserted that it is an error of law as evidence
recorded in some other case cannot be relied upon. The perusal of the impugned order
reveals that the Appellate Tribunal while dilating upon the matter concluded that: -
"5. In view of the facts discussed above we have of the view that customs
authorities have failed to prove their case made out against appellant as during
the trial before Sessions Judge/Special Judge, Customs, Quetta, it is admitted by
the Investigating Officer that the registration book produced by accused Manan
Khan is a genuine one. With this discussion order -in-original is hereby set aside
and appeal is allowed."
The perusal of record reveals that the petition was a dmitted on the point formulated
through order dated 23 -11-2005 to the effect that: --
"Whether the acquittal in criminal case would amount to acquittal in custom
case?"
The bare perusal of the impugned order reveals that the learned Appellate Tribunal h as
not recorded its findings on any other material, rather complete reliance has been made
on the decision given by the Special Judge, Customs in Sessions case No.28 of 2004,
and Customs Case No.13 of 2004. The learned counsel for the appellant stands to h is
contention, and stressed that the evidence recorded in some other case cannot be relied
upon. But in reply the learned counsel for the respondent failed to address this issue.
Section 156 of the Customs Act, 1969 provided the punishment for the offenc es under
the Act. The plain reading of the section reveals that most of the offences mentioned
therein are to be adjudicated by the Customs Authorities, while there are also certain
offences, which are triable by the Special Judge, Customs. It is further t o be noted that
there are also several offences, which are to be adjudicated by both the Customs
Authorities, as well as by the Special Judge. In such like cases both the forums
exercised their jurisdiction independently. In case in hand the confiscation o f the
vehicle has been made under clauses (8) and (89) of section 156(1) of the Customs Act,
1969. While the trial before the Special Judge, Customs, was held for the offence under
Section 156(89) Customs Act, 1969, and offences under sections 420, 468 and 471
Pakistan Penal Code (P.P.C.). The perusal of clauses (8) and (89) of section - 156 of Act,
1969 shows that two penalties are provided therein, one pertains to confiscation of the
goods, and the person is liable to be fined. While the second penalty pro vided therein is
of imprisonment awarded by the Special Judge upon his conviction. The order of
confiscation is to be made in view of provisions 'contained in section 179 of the Act,
which describes the jurisdiction, and powers of the officers of Customs f or making
order for confiscation of goods, and imposition of penalty. Furthermore, in addition
section 181 of the Act, empowers the Officer, passing the order of confiscation, to give
the owner an option to pay fine in lieu of the confiscation of the goods . While on the
other hand, the Special Judge, appointed under section 185 of the Act, has to exercise its
powers within the ambit of section 185 -A of the Act. Further, the perusal of provisions of the
Act 'reveals that separate procedures are provided for both the forums, with separate appellate
forums. The appeals against order of the officer of Customs lies to Collector (Appeals), as
provided under section 193 of the Act, while the order of the Collector can be assailed before
the Tribunal constituted und er section 194 of the Act, and in said hierarchy to this court as
provided under section 196. As far as Special Judge is concerned, the matter adjudicate
thereon, the appeal provided against his order lies to Special Appellate Court established
under secti on 185 -F of the Act.
Keeping in view the above referred provisions of the Act, it is to be noted that the penalty,
and punishment are mentioned side by side in the 'TABLE', while simultaneous jurisdiction
of both the Customs Officer, and Special Judge ar e provided thereon. Furthermore, keeping
in mind the object behind the law, the confiscation so made does not amount to a punishment
for the crime allegedly committed by a person. Rather, in view of section 181 of the Act,
where by an option is given to th e owner for payment of fine in lieu of confiscation, it is clear
to the extent that the order of confiscation is made as a tool to collect revenue in shape of
penalty. While the sentence awarded is in addition to punish the person committed the act.
Theref ore, in view of the same, it can safely be concluded that the proceedings taken by
Customs Authorities for confiscation of goods, are some how in nature of departmental
proceedings for purpose of collection of revenue, which does not bar the Authorities fr om
initiating criminal proceedings against the wrong doer. Thus in view of the same, the criminal
proceedings are quite distinct from the proceedings held by the Department, while the
imposition of civil penalties i.e. confiscation will not amount to convi ction and sentence.
Therefore, the civil penalties will not absolve the transgressor from liability to criminal
prosecution and vice versa. In addition, there is also no restriction on holding criminal
proceedings prior to adjudication by the Officer of Cu stoms, or afterwards or even
simultaneously.
In views of above discussion, the point formulated is decided in negative. The Appellate
Tribunal has made an error, while placing reliance on the order of the Special Judge, thereby
decided the appeal, and se t aside order in original. The Appellate Tribunal had to apply its
mind apart from the decision of the Special Judge, made in a criminal case, and had to decide
the matter in accordance with law, which has not been done in present case. Thus in view of
the mentioned facts, the appeal is hereby accepted, impugned order dated 23 -5-2005 is
hereby set aside.
H.B.T./105/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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