Najeeb Ullah Vs Collector Customs, Model Collectorate, Jamrud road Peshawar

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

W.P No. 2197-P/2024

Najeeb Ullah

Versus

Collector Customs, Model Customs Collectorate, Jamrud road Peshawar Present:

Mr. Ajoon Khan, Advocate for petitioner.

Mr. Abbas Bakhtiar, Advocate for respondents.

Date of hearing: 17.03.2026

J UDG MENT

QAZI JAWAD EHSANULLAH, J.- Through the instant writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks issuance of an appropriate writ directing the respondents to release the seized amount, comprising U.S. Dollars amounting to 130,000 and Afghan currency to the tune of 13,740, statedly recovered from his possession.

2.The background of the case in hand is that on 08.08.2015, the petitioner is stated to have been intercepted by the Anti-Smuggling Troops of Khyber Rifles at the Pak-Afghan border, whereupon recovery of currency, i.e., (i) U.S. Dollars amounting to 130,000, (ii) Afghan currency to the tune of 13,740, and (iii) Pakistani currency amounting to Rs.12,000, was effected Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

from his possession1. Subsequently, a show-cause notice dated 22.09.20152 was issued to the petitioner, followed by Order-in- Original No.131/2015 dated 28.12.20153 passed by the Additional Collector Customs (Adjudication), Peshawar, whereby the Pakistani currency was ordered to be confiscated; however, no such order of confiscation was passed in respect of the U.S.

Dollars and Afghan currency recovered from the petitioner.

Feeling aggrieved, the petitioner alone had assailed the said Order- in-Original before the Customs Appellate Tribunal and the respondent-customs was not moved to question the part of the ONO whereby foreign currency shown to have been recovered from the petitioner was not ordered to be confiscated. The Tribunal, vide judgment dated 29.04.20194, allowed the appeal of the petitioner in the following terms:

“5. Arguments heard. Record perused. Counsel for the appellant submitted that the currency was apprehended closed to Tourkem by the F.C. Troops and thereafter currency handed over to the Customs Staff for further necessary action and in this case the recovery was conducted by 08 August, 2015 and notice was issued on 20.08.2015 which delay of issuing of notice under section 171 has not been explained by the Prosecution anywhere. The appellant was apprehended at Tourkem and that there are many markets available and business is in abundance. According to recovery memo US$ 1,30,000/- Afghan Currency 13,740/- and Pakistani Currency Rs.12,000/- was recovered from the appellant. The order of the Learned Additional Collector Customs (Adjudication), Peshawar is silent about the foreign currency i.e., US $ and Afghan Currency and one confiscated Pakistani Currency of Rs. 12,000/- and has imposed a fine of Rs.6,00,000/- upon the appellant which is unlawful and unjustified. The Recovery memo at page 7 of the writ file

Page 8 of the writ file

Page 9 of the writ file

Page 13 of the writ file Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Prosecution Agency did not take into possession Passport or other itinerary documents in respect of travelling of the appellant outside of Pakistan nothing shows on the record that the appellant was taking out the currency from Pakistan to another country.

6.In view of the above, we allow this appeal and set aside the impugned order-in-original dated 28.12.2015 and the appeal stands disposed of.”

3.Subsequently, the Collectorate of Customs assailed the aforesaid judgment of the Tribunal by filing a Reference, registered as Customs Reference No. 84-P/2019, before this Court.

The said Reference was decided on 08.11.20235, whereby the judgment of the Tribunal was set aside, and the Order-in-Original dated 28.12.2015 passed by the learned Additional Collector Customs (Adjudication), Peshawar, was restored.

4.In the comments submitted on behalf of the

respondent, it has been stated that the controversy raised through the instant writ petition has already been adjudicated upon by this Court in Customs Reference No.84-P/2019, decided on 08.11.2023, wherein the Reference was answered in the affirmative and the Order-in-Original dated 28.12.2015 was restored after setting aside the judgment of the Customs Appellate Tribunal. It is further averred that the petitioner had already contested the said proceedings through the same counsel, and after hearing the parties, this Court rendered a detailed judgment not only in the aforesaid Reference but also in connected matters, including Customs Reference No.31/2018 titled Collector Customs Page 20 of the writ file Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

MCC Peshawar v. Shafiullah. According to the respondent, the issues now sought to be agitated have thus attained finality and cannot be reopened in the present constitutional petition. The respondent has also referred to a corrigendum dated 31.12.2015, issued by the Additional Collector Customs under section 206 of the Customs Act, 1969, whereby in the Order-in-Original No.131/2015 the expression “Pakistani currency” was substituted with the word “currency,” thereby clarifying that the confiscation order was applicable to all types of currency recovered from the petitioner. It is further stated that, in the Customs Reference filed by the Collectorate, a specific prayer had been made for confiscation of all types of currency, and the matter stood decided accordingly by this Court. Hence, according to the respondent, the instant petition pertains to a matter already settled by this Court and is not maintainable. Lastly, it is asserted that the petitioner, by his own conduct, is estopped from re-agitating the same issue, and having already exhausted the available remedies, he is required to approach the proper forum, if so advised. The respondent has, therefore, prayed for dismissal of the writ petition on the grounds of non-maintainability and abuse of process of law.

5.The sole contention advanced by learned counsel for the petitioner at the bar is that once the Order-in-Original dated 28.12.2015 was passed, whereby confiscation was ordered only to the extent of Rs.12,000/- in Pakistani currency, while remaining Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

conspicuously silent with regard to the Afghani currency and U.S.

Dollars recovered from the petitioner, the respondents were under a legal obligation to release and return the said foreign currency to the petitioner.

6.Conversely, learned counsel for the respondent, while controverting the contention advanced at the bar, reiterated and adopted the stance as set forth in the para-wise comments submitted on behalf of the respondent.

7.Arguments heard and record perused.

8.The pivotal question arising for determination is whether the respondent can lawfully rely upon section 206 of the Customs Act, 1969 (the Act) to sustain the corrigendum dated 31.12.2015, whereby the words “Pakistani currency” appearing in the operative part of the Order-in-Original dated 28.12.2015 were sought to be substituted with the word “currency”, in an attempt to bring the seized foreign currency (US$130,000 and Afghani 13,740) as well within the fold of confiscation. Upon a close reading of section 206, in the light of the settled principles, the answer is in the negative. For the facility of reference, Section 206 of the Act is reproduced below:

“206 Correction of Clerical errors, etc.- Clerical or arithmetical errors in any decision or order passed by the Federal Government, the Board or nay officer of customs under this Act, or errors arising therein from accidental slip or omission may, at any time, be corrected Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

by the [Federal Government), the Board or such officer of customs or his successor-in-office, as the case may be.”

9.Section 206 of the Act is a provision of limited amplitude, and by settled principles of statutory interpretation, its scope is to be construed strictly in accordance with the language employed therein. It authorizes correction of “clerical or arithmetical errors” in a decision or order and additionally, permits rectification of “errors arising therein from an accidental slip or omission”. The latter general expression cannot be construed as an independent and fetterless source of power to reframe or expand an adjudication; rather, by application of the interpretive rule of ejusdem generis, it must be confined to the slips and mistakes of the same class as covered by the specific words preceding it that is to say “clerical or arithmetical errors”. Moreover, the provision for all intents and purposes is, corrective and not revisional: it does not confer a power of review nor does it permit revisiting the merits, altering findings, or changing the operative reach of an order. This construction is reinforced by the pronouncement of the Lahore High Court in Muhammad Akhtar v. Deputy Director Customs6, wherein a corrigendum altering the operative part to bring about confiscation was struck down on the rationale that such change was neither clerical nor arithmetical but a substantive amendment, and that PLJ 2015 Lahore 756 Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

section 206 does not empower the authority to introduce or enlarge confiscatory consequences through a corrigendum. The Court observed that:

“5. The basic issue before this Court is that Order-in-Original was amended through a corrigendum issued under Section 206 of the Act of 1969. Section 206 of the Act of 1969 provides that clerical or arithmetical errors in any decision or order passed by the Federal Government, the Board or any officer of customs under this Act, or errors arising therein from accidental slip or omission may, at any time, be corrected by the Federal Government, the Board or such officer of customs or his successor-in-office, as the case may be. In the instant case, the correction is neither clerical nor arithmetical. In this case a substantive change has been brought about by ordering for the confiscation of the Petitioner”s vehicle. This is a patent illegality, which has been committed by the Respondents.”

10.The above construction finds further support from comparative jurisprudence developed by the superior Courts of India while interpreting analogous provisions relating to rectification of mistakes occurring in Rule 83 of the Orissa Sales Tax Rules, 1947 which was ruled in the case of Master Construction Co. (Pvt.) Limited vs. State of Orissa (AIR 1966 SC 1047). The relevant para thereof reads as under:

"7. --------- An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law. The accidental slip or omission is an accidental slip omission made by the court."

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The most important clog which the superior courts of India have identified or placed on powers of the taxing authorities to issue rectification orders etc. is that such kind of powers are to be otherwise exercised after hearing the other side. In K.K.

Karunakaran Nair, Petitioner v. The Tahsildar, Changanacherry and others7, the order of rectification under Section 15 of the Kerala Building Tax Act, 1975, found in violation of principle of Audi alteram partem, was not upheld. In this very context it was ruled as follows;

“8. It is settled law that no decision can be taken against any person imposing him more burden by quasi-judicial authority or assess-ing authority without giving him some oppor-tunity to put forward his case. In Ridge v. Baldwin, 1964 AC 40 House of Lords pointed out the extent of the area where the princi-ples of natural justice have to be followed and judicial approach has to be adopted must depend, principally on the nature of the jurisdiction and the power conferred on the authority or body by statutory questions to deal with the question affecting the rights of citizens. Unlike general principles of natural justice, when principles of natural justice are enshrined in a statutory provision the statu-tory authorities are bound to obey the rule strictly. As held in Wiseman v. Borneman, 1971 AC 297 it is well established that when a statute has conferred on anybody the power to make any decisions affecting individuals, court will ensure that the procedural safe-guards as mentioned in the rules are fol-lowed. It is true that procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made on differences to the result. But, in principle, it is vital that the procedure specifi-cally prescribed by the Statute and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly. In General Medical Council v. Spackman, 1943 AC 627 it was held by Lord Wright as follows:

AIR 2000 Kerala 359 Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

"If the principles of natural justice are violated in respect of any decision it is, in-deed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”

On the contrary, in the present case, the so-called rectification order is claimed to have been passed merely two to three days thereafter (i.e., on 31.12.2015) following the order-in- original dated 28.12.2015. However, on the face of it, the same appears to have been issued without notice to the other side and without affording an opportunity of hearing. While we do not subscribe to the said rectification order, we also entertain serious doubts as to whether any such rectification order was ever passed, or whether at the eleventh hour it was pulled out of the hat when the present writ petition was filed by the petitioner for recovery of foreign currency not covered by the ONO. This view is reinforced by the fact that, in the Customs Reference filed by the respondents, no averment was made in the Statement of Facts contained in the Memo of Reference regarding any such correction or rectification under section 206 of the Act. Accordingly, one would harbour serious doubts about the bona fides of the respondents in this regard, and it appears to be an attempt at mere eyewash by way of manufacturing a backdated document to suggest that such an order under section 206 ibid had been passed.

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

11.We also note that the limitation to enlarge the scope of section 206 supra too far is also rooted in the doctrine of functus officio. Once an adjudicating authority has rendered its decision, it cannot, in the absence of an express statutory power, change the verdict or substitute a new decision for the old one. In this regard reliance is placed on the law laid down by the apex Court in Iqbal Pervaiz and others v. Harsan and others8. Thus, the law is settled that an adjudicating officer cannot change the verdict/conclusion of his own order under the guise of a corrigendum, and so section 206 is not a substitute for the appellate/revisional framework in the context of the present case. Applying the above principles to the present facts, the Order-in-Original dated 28.12.2015, as recorded, ordered confiscation of Rs.12,000/- Pakistani currency, whereas it did not order confiscation of the entire seized foreign currency.

The corrigendum dated 31.12.2015, by substituting “Pakistani currency” with “currency”, does not correct a typographical or arithmetical slip; it enlarges the confiscatory field and thereby materially alters the operative effect of the Order-in-Original. In terms of the authorities cited above, such an enlargement is not within the corrective confines of section 206 and is liable to be treated as an excess-of-jurisdiction act, with the attendant consequence that it cannot furnish lawful basis for retention or confiscation of the foreign currency.

2018 SCMR 359

Tajamul/CS*| (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

12.It is an admitted position on record that the Order-in- Original, while expressly directing confiscation of only the Pakistani currency, remained conspicuously silent with regard to the foreign currency (U.S. Dollars and Afghani currency) recovered from the petitioner. The Customs authorities, despite being fully aware of such omission, did not assail the said order before the appellate forum to the extent of such non-confiscation.

In the absence of any challenge, the said order, to that extent, has attained finality and could not thereafter be altered indirectly or supplemented through recourse to a corrigendum under Section 206 of the Act, which, as discussed above, does not confer any power of substantive review or modification. Even otherwise, although Customs Reference No.84-P/2019 was filed by the Collector Customs against the judgment of the Tribunal, the scope of challenge therein remained confined to the issue of Pakistani currency, and no grievance was raised with regard to the non- confiscation of the foreign currency. The failure of the respondent to agitate such point at the appropriate stage further reinforces the position that the matter stood concluded, and any subsequent attempt to extend the operation of the Order-in-Original to cover foreign currency would be legally untenable. In these circumstances, the petitioner has succeeded in making out a case warranting interference of this Court in exercise of constitutional jurisdiction.

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

13.In the foregoing circumstances, and in view of the limitations placed by section 206, interpreted in the manner articulated in the referred dicta, it is observed that there is no lawful and jurisdictionally competent order in the field justifying confiscation or continued retention of the seized foreign currency (US$130,000 and Afghani 13,740). Consequently, this writ petition is allowed to the extent of the foreign currency, and the respondent is directed to release and return to the petitioner the seized US$130,000 and Afghani 13,740, forthwith, in accordance with law. There is no order as to costs.

Announced -Sd- Dt:17.03.2026 JUDGE

-Sd-

JUDGE

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah