ORDER: MR. JUSTICE SAIYED SAEED ASHHAD.--(1). All these petitions for leave to appeal have been filed against the orders of the Sindh High Court in various Special Customs Appeals.
2. Brief facts of the case as averred by the petitioner are that respondent No. 1 in the petitions is ,carrying on business of manufacturing different items/goods. They imported different materials from different countries. The consignments imported by them on arrival in Pakistan were found to be under invoiced and/or there were misdeclarations of the materials imported, as a result of which huge amounts were evaded by them by way of customs duty. All the imported consignments were examined and short payment of customs duty was worked out by the Customs Intelligence who forwarded the matter with its report to the Collector of Customs (Adjudication) for initiation of adjudication proceedings which culminated in various orders-in- original whereby respondent No. 1 in all the petitions were directed to make payment of customs duty and taxes on account of excessive quantity and/or on account of misdeclaration and wrong description of the materials imported by them.
3. Feeling aggrieved and dissatisfied with the orders-in-original the respondent No. 1 in all the petitions hereinabove assailed the same by way of appeals before the Customs, Excise and Sales Tax Appellate Tribunal (hereinafter referred to as the "Tribunal"). The Tribunal after hearing the appeals on different dates allowed the same and set aside the order of the Collector of Customs (Adjudication) by its orders of different dates. It was the Customs Department which felt aggrieved and dissatisfied with the orders of the Tribunal and assailed the same by way of Special Custom Appeals before the Sindh High Court.
4. For the purpose of disposal of the appeals before the High Court it would be pertinent to point out that in some of the appeals the Director, Directorate-General of Intelligence and Investigation (Customs and Excise) (hereinafter referred to as the "Director") was arrayed as petitioner while in some of the petitions the nomenclature of the petitioner was mentioned as Collector of Customs (Appraisement). In respect of the appeals filed by Director, objection was raised before the High Court that in view of the provision of section 196 of the Customs Act, 1969 (hereinafter referred to as the "Act") the appeals could be filed only by the Collector on behalf of the Customs Department and all the appeals filed by the Director would not be deemed to have been filed competently and in accordance with law, as such the same were liable to be dismissed on this score alone.
6. In the appeals filed by the Collector the objection raised on behalf of respondent No. 1 was that in the first instance the appeals were required to be filed by Collector of Customs (Adjudication) and not by Collector of Customs (Appraisement) inasmuch as it was he who was aggrieved by the orders of the Tribunal. The second objection was that even if the appeals filed by the Collector (Appraisement) were deemed to have been filed by the Collector, in view of the fact that section 196 of the Act did not specify as to which Collector would be competent to file the appeal, the crux of the matter was that though the name of the Collector, appeared in the title of the appeals yet the memos of appeals were not signed and verified by him but were signed either by the Deputy Collector of Customs or the Assistant Collector of Customs on his behalf. It was submitted that neither the Deputy Collector nor the Assistant Collector of Customs could represent the Collector of Customs. It was further submitted that they could have signed the memos of appeals on behalf of the Collector if there was delegation or authorization in this behalf by the Collector in favour of either the Deputy Collector or the Assistant Collector, which was not legally permissible as a delegatee could not delegate.
7. The High Court after taking into consideration the respective arguments of the learned counsel for the parties and the provisions of the law and the case-law cited before it came to the conclusion that the appeals filed by the Director as well as the Collector were not competently filed and/or not in accordance with the requirement of section 196 of the Act. Accordingly, it upheld the objection raised on behalf of respondent No. 1, and dismissed the appeals as not maintainable. In the appeals wherein the name of the Collector of Customs appeared in the title as appellant, applications were moved before the High Court under section 151, C.P.C. read with section 196 of the Act with the prayer that Collector of Customs may be allowed to sign the above mentioned memos. of appeals/verification clauses in order to remove the defect/lacuna on account of non- signing of the same by the Collector. The High Court in some of the appeals allowed the application and passed the following order:-- "Listed application is allowed, but subject to all just exceptions . and without prejudice to the rights of opposite parties. Needful be done within 2 weeks time."
In some of the appeals of High Court did not accept/allow the applications to the above effect.
8. We have heard the arguments of Messrs Akhtar Hussain, Advocate Supreme Court, Abdul Aziz Khan, K.A. Wahab, and A.S.K. Ghouri, Advocates-on-Record.
9. Learned counsel appearing for the petitioners raised the same arguments before us, which were raised by them before the Sindh High Court while arguing the appeals filed by the Customs Department. The various Division Benches of the Sindh High Court after ,consideration of the arguments of the learned counsel for the parties, perusal of the material on record as well as provisions of law came to the conclusion that irrespective of the fact whether nomenclature of the appeals was that of Director or Collector the appeals were not maintainable as they were not filed and/or properly signed and. verified by the Authority competent to sign and verify the memos. of appeals and file the same in Court in accordance with the provision of section 196 of the Act.
10. From perusal of the judgments of the High Court it transpired that an argument was raised on behalf of the Customs Department that the appeals filed by the Customs Department were competent and maintainable as section 196 of the Act had authorized two persons, namely "aggrieved person" or "Collector" to file appeal in the High Court and the Diiector-General would be competent to file as he was an aggrieved party by the order/judgment of the Tribunal inasmuch as the investigation relative to under invoicing and misdeclaration of the materials was detected and investigated by its staff. This contention was repelled by the High Court on the ground that if the arguments to the above A effect were to be accepted then there was no need for using the word "Collector" in section 196 of the Act. It was further observed that "aggrieved person" was used for a person whose legal right was invaded or whose pecuniary interest was directly effected by a decree or judgment and would mean a private party.
11.Apart from the above it may also be observed that acceptance of the argument of the petitioner would render the word "Collector" used in section 196 of the Act as redundant and nugatory which is not in accordance with the settled principle of interpretation of the statutes, according to which each and every word appearing in a section is to be given effect to and no word is to be rendered as redundant or surplus. So was held by this Court in the cases of (i) In the matter of Reference by the President .of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219 and (ii) Messrs V.N. Lakhani and Company v. M V. Lakatoi Express and 2 others PLD 1994 SC 894.
12. Another argument raised on behalf of the petitioner was that the Collector of Customs (Appraisement) or the Collector of Customs (Adjudication) or the Director performed more or less the same functions and duties in coordination and harmony with each other as they represented different sections or organs of the entire Customs Department and duties and functions to be performed by the Officers of one section or organ could legally he performed by the Officers of other section or organ. It was further submitted that the Director performed various functions and duties of Collector and referred to notification whereby the Director as well as an officer of the Director was vested with the power to perform functions and discharge duties of Collector of Customs and as Officer of Customs, respectively. This argument is also without any substance for the purpose of deciding the issue involved in these petitions. Irrespective of the fact whether the Director performs some functions and discharges duties of the Collector, the fact remains that he would not become or would not be deemed to be Collector even if he exercised certain powers of Collector of Customs. Even, otherwise the above grounds are not relevant to the issue or dispute arising in these petitions. It is pertinent to note that section 196 has specifically authorized the Collector to file appeals in the High Court on behalf of the Customs Department. It is well-settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred.
13. This Court in a large number of cases starting with the case of E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 has unambiguously and categorically held that if the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare taciturn". In this case it was observed that proviso to section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 required the transferee landlord to send notice of intimation of his becoming landlord by registered post acknowledgement due, which was a condition precedent before the tenant could be held defaulter. It was observed that intimation of change of ownership given to the tenant or acquired by the tenant in a manner other than the one mentioned in section 30 would not absolve the landlord from discharging his duty under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the case of Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 this Court while dealing with this principle reiterated this view and observed as under:-- "It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R (1848) 13 QB 30, it was stated that the words negative and affirmative of a statute mean nothing.
The question is whether they are iepugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same.
In Liverpool Borrough Bank v. Turner (1861) 30 LJCH 379, Lord Campbell observed as follows-- No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed'."
In Howard v. Bollingdown (1877) 2 PD 203, Lod Penzance after citing this dictum of Lord Campbell added as follows--I believe as far as any rule is concerned, you cannot safely go further than that.
In each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory.' .
One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demanded that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language.
14.From the observations made by this Court in the concluding portion of the above reproduced paragraph it may be noted that this Court while being mindful of the observations made in the case of Liverpool Borrough Bank v. Turner (1848) 13 QB 30 that though no universal rule could be laid down as to whether a mandatory enactment would be construed directory only or obligatory with an implied nullification for disobedience, concluded that the accepted principle in this behalf would be that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed notwithstanding the fact that the provisions thereof are expressed in merely affirmative language.
Application of the pronouncement made by this Court in the cited case can be extended with advantage to the case in hand by holding that section 196 of the Act specified a particular officer to initiate legal proceedings on behalf of the Customs Department, therefore, the demands of section 196 of the Act are to be accurately and strictly obeyed. It is not the job of this Court to question the propriety, motive, prudence or object of the Legislature in conferring the power or right to file an appeal under section 196 of the Act on a particular or specified officer. If any authority is required in support of the above proposition, the same is available from the judgment of this Court in the case of the Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1958 Federal Court 200. It may be noted that in section 194-A of the Act which deals with appeals to the Tribunal constituted under section 194 of the Customs Act, the Legislature has authorized any person aggrieved by any of the orders mentioned in section 194-A of the Act to file an appeal before the Appellate Tribunal.
The different language used in the above two sections is a clear intention of the Legislature that for the purpose of filing an appeal before the High Court the words "aggrieved party" would not be applicable to or include an officer of the Customs Department on whose behalf the authority and power of filing an appeal has been specifically conferred on the Collector.
15. In the case of Khalid Saeed v. Shamim Rizvan and others 2003 SCM R 1505 this Court while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode observed that if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted.
16.Permitting or authorizing a particular person or officer for filing of an appeal on behalf of the Federal or Provincial Governments against an order adversely affecting the interest either of the Federal Government or Provincial Governments is not a new phenomenon. Such provision is contained in Code of Criminal Procedure, 1898, section 417 whereof authorizes the Provincial Government to direct the Public Prosecutor to present appeal before the High Court from an original or appellate order of acquittal passed by a Court other than the High Court. Section 494 of the Code of Criminal Procedure confers power on the Public Prosecutor to withdraw from prosecution of any person with the consent of the Court. For the purpose of section 417, Cr.P.C. the Provincial Government has declared the Additional Advocate-General to be the Public Prosecutor for filing appeals and appeal filed by the Assistant Advocate-General on behalf of the Provincial Government was found to be incompetent by this Court in the case of State through Advocate- General, Sindh v. Hanif Ahmed and others 1994 SCM R 749. In the case of Kadir Bux and others v. The Crown PLD 1955 Federal Court 79 an appeal filed under section 417, Cr.P.C. by the Advocate-General in the absence of any order appointing him as Public Prosecutor within the meaning of section 417, Cr.P.C. was held to be not competent.
17.With regard to the filing of appeals against acquittal on behalf of the Federal Government only those Law Offices who have been declared as Public Prosecutor can file appeals and an appeal filed by an officer not covered by the words Public Prosecutor would be incompetent. By virtue of the provisions of Central Law Officers Ordinance, 1970 and Central Law Officer (Amendment) Act, 1985 Additional Attorney-General, Deputy Attorney-General, Assistant Attorney-General or Standing Counsel have been declared to be public prosecutors competent to file and institute an appeal or revision for and on behalf of the Federal Government in a Court or a Tribunal. Thus, in view of above only the officers declared as Public Prosecutors are competent to file appeals on behalf of the Federal or Provincial Governments. This question was examined by this Court in Criminal Petition No. 158-P of 2003 which was filed through Governor FATA against the judgment of Peshawar High Court in Criminal Appeal No. 314 of 2003 filed by the N.-W.F.P. Government against the judgment, dated 30-4-2003 of the Special Judge (Central) Anti-Corruption, N.-W.F.P. Peshawar acquitting the respondents of the charges of corruption levelled against them. This criminal appeal was dismissed in limine by the Peshawar High Court on the ground that it was not filed by a competent person as per requirements of section 4-A of Central Law Officers Ordinance, 1970. The pronouncement made by the Peshawar High Court was upheld by this Court observing that the Officer Incharge of FATA Affairs in the N.-W.F.P. Governor's Secretariat was not the competent person to file appeal which could only be filed by a Law Officer declared to be Public Prosecutor in accordance with the provisions of Central Law Officers Ordinance, 1970 as amended by Central Law Officers (Amendment) Act, 1985. Similarly when section 196 of the Act requires filing of an appeal by the Collector then it can be filed only by the Collector and none-else. The appeals filed by the Director would be deemed to be absolutely illegal, incompetent and not maintainable. Even the appeals purported to have been filed by the Collector as the nomenclature of the petitioner appear as Collector of Customs but not signed and verified by him and instead were signed or verified either by a Deputy Collector or Assistant Collector of Customs would also be deemed not to have been filed in accordance with law in view of the pronouncement made by this Court in the case of Haji Abdullah Jan and others v. The State 2003 SCM R 1063 and State through Advocate- General, Sindh v. Hanif Ahmed and others (supra).
18.The contention that appeals in which the nomenclature of the petitioner has been mentioned as Collector of Customs could not be deemed to have been filed illegally or contrary to law on the ground of not having been signed and verified by the Collector and further that it was merely an irregularity which could be rectified by allowing the Collector to sign the appeals does not appear to carry weight. In our above view we are fortified by the judgment of this Court in the case of Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCM R 2268 wherein it was held that signing or non-verification of a petition by a wrong or unauthorized person would be detrimental to the petitioner and it will be to reproduce the relevant portion from the same as follows:-- "In the foregoing circumstances, while I am of the view that the act of termination and take over on the part of Civil Aviation Authority is neither lawful nor sustainable, the case remains unfit for execution of any relief here on account of the appellant's own conduct, of which the most revealing is that the petition in the High Court was verified and affirmed by Hafizur Rehman, the Managing Director of the previous C.A.A. contractor, thereby relegating the relief to the appellant for the benefit of another, since a firm is nothing but a sum total of its partners. The jurisdiction under Article 199 of the Constitution being discretionary, the Court where equities require, may, even in the best of cases, choose to decline interference."
Section 196 of the Act prescribes a time limit of 30 days within which an appeal is to be filed from the date on which the Collector is served with notice of an order under section 194-B of the Act. The appeals were not filed in accordance with law and there was contravention and violation of the mandatory provisions of law. Thus, in view of the observations made hereinabove such appeals would be deemed to be nullities having no legal existence. Filing of the appeal after lapse of 30 days from the date on which the order under section 194-B of the Act was served on the Collector, the appeals would be barred by time. They would be deemed to have been properly filed when the memos. of appeals were signed and verified by the Collector but the same was done or intended to be done after the lapse of 30 days, the appeals would be barred by limitation notwithstanding the fact that they were filed within 30 days as envisaged by section 196 of the Act as these appeals would be deemed to have been validly and legally filed on the date on which Collector of Customs would sign and verify the memos. of appeals.
19. Before concluding this judgment we would like to express our extreme dissatisfaction, discontentment and displeasure on the manner in which the Officers of the Customs Department, Law Officers/Standing Counsel engaged by the Customs Department and the Advocates-on- Record involved in the filing/institution of these petitions had conducted themselves. From the facts it is abundantly clear that neither the officers of the Customs Department as well as the Central Board of Revenue had bothered to find out the correct provision of law relating to the filing of appeals in the High Court and to obey and comply with the legal requirements. The Customs Department as well as C.B.R. had at their disposal the Law Officers of the Federal Government to advise them on the question of law besides the Standing Counsel engaged by them but it appears that either such advice was not sought for or if sought for was not provided correctly. The counsel who were engaged to file the appeals had also acted in a most negligent, careless, casual and imprudent manner and in spite of clear dictates of law filed appeals either in the name of wrong person/officer as petitioner and in appeals where nomenclature of petitioner was correctly spelt out, they did not get the memos. of appeals signed by the authorized person. Such conduct of the persons involved has resulted in colossal loss to the Government as in view of the order-in-original passed by the Collector of Customs (Adjudication) the private respondents could ostensibly be held to be guilty of under invoicing, misdeclarations and misdescription of the material/goods imported by them. A copy of this judgment be sent to the learned Attorney-General for Pakistan as well as the Chairman, Central Board of Revenue so as to apprise them of the apathy, careless, casual and ignorant behaviour of the officers of the Customs and the Law Officers/counsel dealing with the Customs Department.
20.For the foregoing facts, discussion and reasons all these petitions are found to be without any substance and do not merit consideration. Accordingly they are dismissed and leave to appeal is refused.