2020 P T D 1821
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ
The COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE,
QUETTA
Versus
FAZAL MUHAMMAD and others
Customs Reference No.52 of 2018, decided on 31st March, 2020.
(a) Customs Act (IV of 1969)---
----S.196--- Reference--- High Court, jurisdiction of ---Principle ---While exercising reference
jurisdiction under S.196 of Customs Act, 1969, High Court has to examine and decide only such questions of law, which may arise from the order passed by Customs Appellate Tribunal ---High Court is not supposed to enter into disputed questions of facts, unless such
findings are found to be perverse or contrary to record---Customs Appellate Tribunal is final fact finding forum as provided under the law.
(b) Customs Act (IV of 1969)---
----Ss.156(1)(8)(89) & 196---Foreign Exchange Regulation Act (VII of 1947), Ss.2(5), 15 &
16---Foreign Exchange Manual 2002, Chapter XVIII ---Notifications SRO No.566(I)/2005
dated 6 -6-2005--- SRO No.499(I)/2009 dated 13- 6-2009--- State Bank of Pakistan
Notification No.1/2015 dated 1- 6-2015--- Reference---Factual controversy---Defective
investigation---Dispute was with regard of recovery of foreign exchange from respondent at
the airport when he was going abroad---Validity ---Investigation officer was responsible to
investigate the matter according to law ---Investigation officer did not call those persons who
submitted their affidavits stating that the total foreign currency did not only belonged to t he
respondent rather each of them had contribution of 10000 Dollars --- Respondent produced
eight receipts of foreign currency before adjudicating officer, which showed that each of the four deponents purchased 10000 Dollars ---Investigation officer verified the receipts from
foreign exchange dealer ---Under Notification No.1/2015 dated 1 -6-2015, issued by State
Bank of Pakistan, a person was authorized to take out foreign exchange from Pakistan ---No
requirement existed for foreign exchange to be less than US$ 10000/ - or equivalent thereof ---
High Court while exercising jurisdiction under S.196 of Customs Act, 1969, was not free to embark upon an unfettered inquiry into factual aspects which had been properly considered and decided by the Tribunal ---Reference wa s dismissed in circumstances.
Collector Customs Karachi v. Messrs Haji Ismail Co. and others 2015 SCMR 1383 = 2015
PTD 2642 rel.
Akhtlaq Ahmed Shah and Tahir Iqbal Khattak, Assistant Attorneys General for
Petitioner.
Mazhar Ali Khan for Respondent No.1.
Date of hearing: 22nd March, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----This Custom Reference under Section 196 of
the Customs Act, 1969 ("the Act") has been preferred against the judgment dated 23rd June,
2018 ("impugned judgment") passed by the Customs Appellate Tribunal (Member Technical -
III, Karachi), whereby Customs Appeal No.Q -402/2018 against the Order -in-Original
No.03/2018, dated 24.01.2018 was allowed.
2. Brief facts of the case as reported by the Superintendent ARU MCC Quetta are that
on 16.09.2017, at about 21.50 hours, a passenger namely Fazal Muhammad son of Pir
Muhammad (respondent No.1) having Passport No.NAO 157952 and CNIC No.544003951795- I/5 was checked, who was proceeding to Dubai via flight No.FZ -342. His
luggage was searched whi ch resulted in recovery of foreign currency 50,000 Australian
dollars. He failed to produce any lawful authority for its possession. Hence, his act amounted to smuggling of foreign currency. Accordingly, the said currency was seized for violation of the pr ovisions of Chapter XVIII of Foreign Exchange Manual 2002 read with sections 2(5),
15 and 16 of the Act, further read with SRO 566 of 2005 and read with section 8 of Foreign Exchange Act, 1947.
3. Initially a show -cause notice dated 24.10.2017 was issued t o the respondent No.1 and
after completion of requisite formalities, the matter was placed before the Collector Customs, Quetta, who vide order dated 20.02.2018 held that the charges against the respondent No.1 are established and ordered for confiscation of Australian dollar 50,000/ -(Equivalent to Pak
Rs.42,00,000/ - outrightly in favour of the State and a personal penalty of Rs.500,000/ - (five
hundred thousand) was also imposed on the respondent under clauses (8) and (89) of the section 156(1) of the Customs Act, 1969 read with SRO 566(I)/2005 dated 06.06.2005 and SRO 499(I)/2009 dated 13.06.2009. The respondent No.1 being aggrieved of the order passed by the learned Collector Custom Quetta, preferred an appeal before the Customs Appellate Tribunal Karachi, Bench -III ("the appellate tribunal"), which was allowed vide
order impugned judgment. Hence, this reference.
3. Learned counsel for the petitioner contended that the learned appellate Tribunal has
passed the impugned judgment without considering the provi sions of section 139 of the Act;
that it is incumbent upon every citizen to declare his luggage. The respondent did not declare the alleged currency notes at airport; that the plea taken by the respondent No.1 is after thought.
4. Conversely learned counse l for the respondent No.1 stated that the impugned
judgment is in accordance with law and the respondent No.1 at the time of arrest declared the
luggage and disclosed all the facts but the authority did not consider the same. He lastly
prayed for dismissal of the reference.
5. We have heard the learned DPG as well as counsel for the respondent No.1 and have
gone through the record with their able assistance.
6. It may be observed that while exercising reference jurisdiction under section 196 of
the Customs Act, 1969, this Court has to examine and decide only such questions of law,
which may arise from the order passed by the Customs Appellate Tribunal and, therefore, this court is not supposed to enter into the disputed questions of facts, unless such findings are found to be perverse or contrary to the record, the Appellate Tribunal is the final fact finding forum as provided under the law.
7. It is the allegation against the respondent No.1 that on 16.09.2019 when he was ready
for departure to Dubai at Quet ta Airport via flight No.FZ -342, his luggage was searched and
50000 Australian dollars were recovered from his luggage. The perusal of record reveals that at the time of recovery the respondent No.1 told the customs authority that 50000 Australian dollar belongs to respondent and four others persons, who were also present there, but the customs authority did not inquire from that four persons. It appears from the record that the other four persons had also filed affidavits before the Pakistani Embassy at Dubai confirming their ownership with regard to the recovered currency. The Investigating Officer has a power to examine any person during inquiry of the case. It would be appropriate to reproduce the relevant provision of the Act as under:
"165. Power to e xamine persons.- (1) The appropriate officer may, during the course
of an inquiry in connection with the smuggling of any goods,-
(a) require any person to produce or deliver any document or thing to such officer,
(b) examine any person acquainted with the facts and circumstances of the case.
(2) The appropriate officer shall exercise the powers in subsection (1) only in relating to a person who is readily available or present before him and shall be subject to the same provisions as on officer -in-charge of a police station is subject to under the
Code of Criminal Procedure, 1898 (Act V of 1898), when investigating a cognizable offence."
8. It is responsibility of the Investigating Officer to investigate the matter according to
law. It appears from the record that the investigating officer did not call the other four persons, who submitted their affidavits stating therein that the total foreign currency does not only belong to the respondent rather each of them have contribution of 10000 dollars. In this regard the respondent No.1 also produced eight (08) receipts of foreign currency before the
adjudicating officer, which shows that Hakimullah purchased 10000/ -, Raz Muhammad
having two receipts, purchased 10000/ -, Muhammad Arif purchased 10000 dollars and Fa iz
Akhtar purchased 10000 dollars. The adjudicating officer verified the referred reciepts from the foreign exchange dealer. As per Notification No.1/2015- SB, date 1st June 2015, issued
by the State Bank of Pakistan a person is authorized to take out of Pa kistan foreign exchange
from Pakistan. There is no requirement for foreign exchange less than US $ 10,000/ - or
equivalent thereof. The referred notification being relevant is reproduced as under:
APPENDIX III -23
NOTIFICATION NO.F.E/1/2015 -2B
DATED 1ST JUNE, 2015
In exercise of powers conferred by Section 8 of the Foreign Exchange Regulation Act,
1947 (Act No.VII of 1947) and in terms of permission State Bank of Pakistan, it is notified as follows:
Any person is allowed to take out of Pakistan US Dolla rs or equivalent thereto in
other foreign currencies as per the following limit: -
Age group of person Maximum limit per person
Per Visit (US $ or equivalent in other foreign
currencies) Annual Ceiling per person
(US$ or equivalent in other foreign curren cies)
Up to 5 years 1,000 6,000
From 5 -18 years 5,000 30,000
Above 18 years 10,000 60,000
Sd/-
(Saeed Ahmed)
Governor (A)
9. The Constitution of Islamic Republic of Pakistan 1973, has guaranteed rights to every
citizen to be treated equally and according to law. It would be appropriate to reproduced Article -4 of the Constitution as under: -
"4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inal ienable right of
every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular -
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accorda nce with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
10. There is nothing in the impugned judgment which would justify disregard of the
cogent reasoning and the factual determination made by the Tribunal. In the case title
Collector Customs Karachi v. Messrs Haji Ismail Co. and others 2015 SCMR 1383 = 2015
PTD 2642, it has been held that it is the Tribunal which is the forum meant for determining factual aspect of the case such the above. The High Court while exercising jurisdiction under Section 196 of Customs Act, 1969 is not free to embark upon an unfettered inquiry into factual aspects which have been properly considered and decided by the Tribunal.
In view of above, the instant reference being bereft of any merit is dismissed.
MH/55/Bal. Reference dismissed.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,
let us know.