ISLAMABAD: Carrying cash almost to the aircraft door does not spare a traveller from the law – even if he never boards. The Supreme Court has held that a man caught with US$40,000 stitched into his jacket at the last security checkpoint before an international flight was guilty of “attempting to smuggle” currency, overturning two lower forums that had let him off.
A three-member bench led by Chief Justice Yahya Afridi, with Justice Naeem Akhter Afghan and Justice Muhammad Shafi Siddiqui, allowed a Civil Petition filed by the Collector of Customs, Islamabad, against respondent Javed Iqbal Malik, restoring the Collector’s 2018 confiscation order. Justice Siddiqui is the author judge of this 13-page verdict.
According to case record, Malik was intercepted at Benazir Bhutto International Airport on November 17, 2017, while boarding a Qatar Airways flight to Sweden. He had already cleared baggage declaration, Customs search, ANF search and FIA immigration, and his boarding card was issued and passport exit-stamped, before US$40,000 – four times the permissible US$10,000 limit – was detected concealed in his jacket at the final ASF scanning counter. He was arrested, and the Collector of Customs (Adjudication) ordered outright confiscation of the currency in April 2018.
Malik successfully appealed before the Customs Appellate Tribunal, which set aside the confiscation, holding the question of “attempt to smuggle” was a factual determination. The Islamabad High Court upheld that view in August 2023, declining to interfere in its limited reference jurisdiction absent a perverse finding.
Before the Supreme Court, counsel for Customs argued that Malik’s near-complete passage through departure formalities, coupled with his uninterrupted boarding-card and exit-stamp status, demonstrated conduct that had crossed from preparation into attempt under Section 2(s) of the Customs Act, 1969. Counsel for Malik countered that mere possession of currency, absent concealment or false declaration intent, could not establish attempt, and relied on Malik’s claimed ignorance of the NOC requirement and his bank-sourced explanation for the funds.
Examining Section 2(s), which extends “smuggle” to cover attempts at taking prohibited or restricted goods — including currency – out of Pakistan, the Court traced the settled distinction between intention, preparation, attempt and completion, drawing on Khan Muhammad (PLD 1986 SC 192) and Asghar Ali (PLD 2003 SC 250). It held that whether conduct crosses from preparation into attempt is a mixed question of law and fact, turning on the proximity of the accused’s acts to the prohibited act itself.
Distinguishing Malik’s case from Khan Muhammad – where the accused was intercepted en route to a purely domestic flight, with an independent international leg still to follow — the Court found that Malik had “substantially completed” the departure process, leaving only the final security scan before actual smuggling would have been consummated.
The bench also rejected Malik’s ignorance plea, invoking the maxim ignorantia juris non excusat, and noted his frequent international travel history undercut the claim. His failure to declare the currency under Section 139 further compounded the violation.
Setting aside both the Tribunal’s 2019 ruling and the High Court’s 2023 judgment, the Supreme Court restored the Collector of Customs’ original confiscation order, converting the petition into an appeal and allowing it in full.
