Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, MULTAN BENCH
MULTAN
(JUDICIAL DEPARTMENT)
Case No. Writ Petition No.6132 of 2018
Muhammad Zaman Versus Additional Sessions Judge etc.
[Link] order/ Date of order/ Order with signatures of Judge, and that of parties or
Proceedings Proceedings counsel, where necessary.
09.02.2022 Sardar Tariq Sher Khan, Advocate for the petitioner.
Maher Muhammad Mumtaz Hussain Mirali, Assistant
Advocate General.
Mian Ashfaq Hussain, Advocate/Legal Advisor for
respondent No.4 (Custom Department).
Muhammad Zaman petitioner was working as “Dafaydar” in
Border Military Police at Check Post Bawata, when on 01.09.2017,
he halted and seized a Vitz Car, bearing registration No. LEH-
2307-13, Model 1999 from one Suleman Khan. For whose custody
later Director Custom Intelligence, D.G. Khan and said Suleman
Khan moved applications before the Magistrate who vide order
dated 02.02.2018 dismissed both the applications; however,
directed the Director Custom to approach concerned special court
for like relief. Said order was challenged by Suleman Khan, upon
which impugned order was passed by learned Additional Sessions
Judge on 03.04.2018, whereby he has overturned the order of
Magistrate directing therein to conduct inquiry u/s 523 Cr.P.C.
before taking decision about custody of vehicle; further directed to
take action against the petitioner by lodging a case under Article
155-C of Police Order, 2002 because he has not reported the matter
to Magistrate forthwith as required u/s 523 Cr.P.C. Challenge was
thrown against direction for lodging of FIR on the ground that
vehicle was taken into custody u/s 550 Cr.P.C. by the petitioner and
as being subordinate officer immediately through Rapt No.5 dated
01.09.2017, intimated the high ups and as such has discharged his
function in accordance with law. It has also been observed that
Writ Petition No.6132/2018 2
vehicle was one that could not have been taken into custody under
section 550 Cr.P.C. by the police. To better appreciate the
contention, section 550 Cr. P.C. is reproduced as under;
550. Powers of police to seize property suspected to be stolen: Any
police officer may seize any property which may be alleged or
suspected to have been stolen, or which may be found under
circumstances which create suspicion of the commission, of any
offence, such police officer, if subordinate to; the officer Incharge
of a police station, shall forthwith report the seizure to that officer.
Two conditions are necessary for seizure of property which are as
follows;
i. any property which may be alleged or suspected to have
been stolen or
ii. found under circumstances which create suspicion of the
commission of any offence
What is stolen property, it has been defined in section 410 PPC
which is as follows;
410. Stolen Property;
Property, the possession whereof has been transferred by
theft, or by extortion, or by robbery, and property which
has been criminally misappropriated or in respect of which
criminal breach of trust has been committed, is designated
as stolen, property, "whether the transfer has been made,
or the misappropriation or breach of trust has been
committed within or without Pakistan. But if such property
subsequently comes into the possession of a person legally
entitled to the possession thereof it then ceases to be stolen
property.
Whereas “found under the circumstance” means, some offence has
been committed by use of such vehicle in any area.
2. In the case, no FIR was stood registered for theft or otherwise
of such vehicle nor it was found in the circumstance that it could
have been taken into possession under such section particularly
when there was no evidence of tempering of chassis number etc.
Even police have no authority to stop or seize non-custom paid
vehicle because Customs Act, 1969 does not authorize police to
take such action which authority rest with Custom Officers. If it
was mistakably taken, even then subordinate officer was bound to
inform the Officer Incharge of Police Station and not the Magistrate
Writ Petition No.6132/2018 3
as the section says. Petitioner has thus performed his duty and no
breach or violation can be attributed to him. It was the duty of
Officer Incharge of Police Station to inform the Magistrate if he
could have found that above conditions of section are met,
otherwise he was under duty to inform the Custom officers for
further proceedings which is in consonance with the Customs Act,
1969; relevant section is as under;
170. Procedure in respect of things seized on suspicion by the
police.- (1) When any things liable to confiscation under this Act
are seized by any police-officer on suspicion that they had been
stolen, he may carry them to any police-station or court at which a
complaint connected with the stealing or receiving of such things
has been made, or an inquiry connected with such stealing or
receiving is in progress, and there detain such things until the
dismissal of such complaint or the conclusion of such inquiry or of
any trial thence resulting.
(2) In every such case the police-officer seizing the things shall
send written notice of their seizure and detention to the nearest
custom-house and immediately after the dismissal of the complaint
or the conclusion of the inquiry or trial, he shall cause such things
to be conveyed to and deposited at, the nearest custom-house, to be
there proceeded against according to law.
It is clear from above section that police can carry such vehicles to
any police-station or court at which a complaint connected with the
stealing or receiving of such things has been made and can kept
under custody till the conclusion of inquiry or trial but not otherwise
and as per sub-section (2) they are bound to inform the nearest
custom-house.
3. Coming to the question of application of section 523
Cr. P.C. in this case which was not as complex as learned Additional
Session Judge has perceived because correspondence of police was
started immediately with Directorate of Intelligence & Investigation
FBR, Multan and police was finally directed to hand over the said
vehicle to the Directorate. Before proceeding further, let see what
the section 523 Cr. P.C. says which is as under:-
523. Procedure by police upon seizure of property taken under
Section 51 or stolen: (1) The seizure by any police officer of
property taken under Section 51, or alleged or suspected to have
been stolen, or found under circumstances which create suspicion
of the commission of any offence shall be forthwith reported to a
Magistrate who shall make such order as he thinks fit respecting
the disposal of such property or the delivery of such property to the
Writ Petition No.6132/2018 4
person entitled to the possession thereof, or if such person cannot
be ascertained, respecting the custody and production of such
property.
(2) Procedure where owner of property seized unknown: If the
person so entitled is known, the Magistrate may order the property
to be delivered to him on such conditions (if any) as the Magistrate
thinks fit. If such person is unknown, the Magistrate may detain it
and shall, in such case, issue a proclamation specifying the articles
of which such property consists, and requiring any person who
may have a claim thereto, to appear before him and establish his
claim within six months from the date of such proclamation.
This section requires that seizure of property shall be forthwith
reported to “a Magistrate” which does not mean Area Magistrate in
all cases but one who is authorized under the law to deal with
property so taken. If the vehicle is seized under Control of Narcotics
Substance Act, 1997, only Court concerned would deal with the
vehicle and not the Area Magistrate, similar is the case for all other
special laws. Police was bound to hand over such vehicle to
Directorate of Intelligence & Investigation FBR, Multan. That was a
right course, involvement of Magistrate in such matter is not
required under the law who could only tackle the properties
mentioned in section 523 Cr.P.C. It is trite that provisions of special
law prevail over general law; a special procedure has been given in
the Customs Act, 1969 with respect to seizure of non-custom paid
vehicle and dealing with offence therein. Such procedure is more
comprehensive as per section sections 179 and 180 and it also
includes a provision of regularization of such vehicles as per
following section;
181. Option to pay fine in lieu of confiscated goods: - Whenever
an order for the confiscation of goods is passed under this Act, the
officer passing the order may give the owner of the goods an
option to pay in lieu of the confiscation of the goods such fine as
the officer thinks fit.
Honourable Supreme Court in the case of “Adam Vs. Collector of
Customs, Karachi and another” reported in PLD 1969 Supreme
Court 446, has observed as follows:
“……….The intention of the Legislature in thus clear that the
disposal of the goods seized under the Act is left entirely in the
jurisdiction of the custom authorities. The proceedings taken by the
custom authorities for the confiscation of the goods are more in the
Writ Petition No.6132/2018 5
nature of departmental proceedings which have been
characterized in English and American jurisprudence as
proceedings in condemnation of the goods for the purpose of
revenue and are regarded as proceedings of a civil nature, despite
their penal character……”
Even special Judge Customs has no jurisdiction for
adjudication of property subject-matter of seizure which exclusively
falls within the domain of Customs authorities.
This view has been affirmed in “State through Director-General,
Pakistan Coast Guards, Turbat Vs. SABRO and another” reported
in (1992 P Cr. L J 1795), another Single Judge (Munawar Ahmed
Mirza, C.J., as he then was) acting under the Appellate Jurisdiction
under the Customs Act (Quetta) has observed as follows:-
“…………..Therefore, in the peculiar circumstances question of
adjudication vested in Custom forums as authoritatively
determined by the Honorable Supreme Court in case Adam v.
Collector of Customs Karachi and another P L D 1969 SC 446. It
is quite evident that powers of Special Judge Customs are only
restricted to trial of the accused who have committed offence for
the violation of Custom Act.
However, adjudication of property subject-matter of
seizure exclusively falls within the domain of Customs authorities
as contemplated by sections 179 and 181 of the Customs Act.”
This view is supported with above cited Judgment of Honourable
Supreme court reported as PLD 1969 Supreme Court 446 wherein
it was held as under;
“Both are concurrent remedies but each is independent of the
other. They cannot, therefore, be deemed to be mutually exclusive.
Therefore, no question of double jeopardy arises when
simultaneously or subsequently a trial is held to determine the guilt
of the individual, who has been concerned in the offences in
respect of the goods, which are the subject-matter of the
adjudication proceedings. And since the proceedings for
adjudication by the Customs Authorities and the criminal
prosecution of the offender in the Court are not interdependent,
they can proceed simultaneously and neither can remain under
suspension for the sake of the other.”
Similar view was reiterated in another case reported as “Government
of Pakistan through Additional Secretary (Customs), Ministry of
Finance, Islamabad and another Vs. Mahmood Ahmed Qureshi and
another” (PTCL 2002 CL. 579).
Writ Petition No.6132/2018 6
4. It is clear from above dictum that when a Special Judge
Customs has no jurisdiction to intervene into these matters, there is
no question of vesting jurisdiction on Magistrates or the Sessions
Judges to entertain such proceedings as has been held by
Honourable Supreme Court in a case “The Director Intelligence and
Investigation (Custom) FBR, Islamabad and another versus Fazal Ghani and
others” (Criminal Petition No. 802 of 2015) as follows:-
“The question emerging for consideration of this court is whether
the vehicles seized have been lawfully imported and the persons
importing them have paid the duties and taxes leviable thereon.
The answer to the question is simple no. When this being the case,
the learned Additional Sessions Judge could not have passed an
order for their disposal under Section 516-A of the Cr.P.C. nor
could the High Court in the hierarchy affirm such order.”
In two other cases reported as “BHUTTO KHAN and 4 others Versus
DIRECTOR GENERAL OF POLICE KHYBER PAKHTUNKHWA
PESHAWAR and 4 others” (2018 PTD 1716) and “MUHAMMAD
SALAM Versus the STATE and another” (2019 PTD 1595); it has
been held;
“Admittedly, the vehicles in question were neither brought into
settled area in accordance with the provisions contained in the
Customs Act, 1969 nor the custom duty nor any duties and taxes
leviable thereon were paid by its importers, hence, neither the
High Court nor Sessions Judges nor judicial Magistrates have
power to release such vehicles on superdari. These vehicles are
subject to departmental adjudication as envisaged under the
Customs Act, 1969.”
The Customs Act, 1969 authorizes the police to take possession of
any vehicle only for the assistance of Custom Officers and not for
any other purpose; relevant section is reproduced for reference:-
7. Assistance to the officers of customs: - All officers of Federal
and Provincial Governments, including Inland Revenue, Police,
National Highways and Pakistan Motorway Police, Civil Armed
Forces, Border Military Police (BMP) and officers engaged in the
collection of land-revenue are hereby empowered and required to
assist the officers of customs in the discharge of their functions
under this Act. The provision of assistance so requested shall be
binding.
Therefore, police was not authorized to seize non-custom paid
vehicle; The Honourable Peshawar High Court has held in case
reported as “ADDITIONAL DIRECTOR, INTELLIGENCE AND
Writ Petition No.6132/2018 7
INVESTIGATION Versus BANARAS KHAN” (2013 PTD 1988)
[Peshawar High Court] as follows:-
17. The police personnel who seized the vehicles in question, were
not authorized officer under the Custom Act, and they were never
conferred with such power of seizer, in case when there was no
tempering of chassis etc. since then all the further proceeding
conducted in consequence thereof in regard to illegal seizure falls
to ground and the vehicles shall not be out rightly confiscated in
the shield of S.R.O. 499(I)/2009.
In the same judgment further reliance was upon an earlier decided
case in the context of this query, which the court has referred as
under:-
18. This proposition has been already settled by the learned
Tribunal Karachi Bench, Karachi in case of Sheikh Nazir Ali v.
Customs Central and Excise and others (PTCL 2002 CL 340) and
thereafter consistently followed by courts of the country in this
regard. This court in an unreported case of "Additional Director
Intelligence and Investigation, Peshawar v. Sartaj Khan" [T.R. 5-
P/20120] decided on 5-6-2012 has held similar view as: --
"It was also held that under the relevant provision of Customs Act,
1969, the police have no power to take into possession of the said
vehicle. Moreover, no tempering was deciphered on its chassis
number, thus the same was held to be non-duty paid vehicle there
to release the vehicle on payment of fine equal to 20% of its
customs value in addition to leviable duty and taxes was declared
as legal order passed by the learned Appellate Tribunal
Peshawar."
5. As observed above if the police have taken the vehicle into
custody, it did not bind them to inform the Magistrate about seizure
when they were already in correspondence with Directorate of
Intelligence & Investigation FBR, Multan. Learned Additional
Session Judge should not have passed order for registration of case
because official acts of police taken in good faith are protected under
Article 171 of Police Order, 2002,
171. No police officer to be liable to any penalty or payment of
damages on account of acts done in good faith in pursuance of
duty: – No police officer shall be liable to any penalty or to
payment of damages on account of an act done in good faith in
pursuance or intended pursuance of any duty imposed or any
authority conferred on him by any provision of this Order or any
other law for the time being in force or any rule, order or direction
made or given therein.
6. For what has been discussed above, this writ petition is
allowed, order of Learned Additional Sessions Judge D.G Khan
Writ Petition No.6132/2018 8
dated 03.04.2018 is set aside as prayed for; however, Custom
authorities can recourse to legal remedy available under the law as
explained in this decision for custody of vehicle and confiscation
thereof.
(Muhammad Amjad Rafiq)
Judge
APPROVED FOR REPORTING
Judge
Sadheer Ahmad*
