ADNAN AHMED, MEMBER (JUDICIAL-II).---We intend to dispose of Customs Appeal No,Q of 480 of 2012 filed against Order-in-Original No,134 of 2011 dated 25-4-2011 passed by the Additional Collector of Customs, Model Collectorate of Customs, Quetta.
2. Brief facts of the case are reported are that on 30-1-2011, the staff of Chagai Militia, Noshki at RCD Naka GR-542892 and Messrs 34-K-2 checked a suspected vehicle Toyota Pickup D/Cab bearing Registration No,KM-5979, Engine No,IKZ-0037038 and Chassis No,MR 033JNG600004037 which was driven by Zain-ud-Din son of Haji Ghulam Hyder owner of the vehicle and recovered 350 Kgs of Charas valuing Rs,35,00,000 while being smuggled from Killi Jamaldini to Quetta, which was concealed in the secret parts of the vehicle. The staff of Chagai Militia, Noshki seized charas along with vehicle as case property under proper recovery memo. and lodged F.I.R. on 30-1-2011 under section 9(e), Control of Narcotic Substances Act, 1997 with affect of alleged recovery of Narcotics from the said vehicle same was taken under custody by Police Station Noshki.
3. The Additional Collector of Customs, MCC, Quetta on report of FC, Blochistan vide letter No,600- 1/120/LC dated 4-2-2011 also passed an Order-in-Original No, 134/2001 dated 14-4-2011 as under:-- "I have examined the case and have gone through the record of the case. The seized charas was concealed in the secret parts of the vehicle has been smuggled in violation of the aforementioned provisions of law. Hence, the charges levelled in the show-cause notice stand fully established. I therefore, order for outright confiscation of the charas as under clauses 8, 9, 89 and 90 of section 156(1) of the Customs Act, 1969.
As regards the vehicle Toyota Pickup D/Cab bearing Registration No,KM-5979, Engine No, IKZ- 0037038 and Chassis No,MR.033.JNG600004037 having been used for the transportation of narcotics and concealment shows involvement of the vehicle transporter, moreover no one claimed the ownership of the vehicle despite the fact that requirement of service of notices under section 215 of the Customs Act, 1969 have been fulfilled. I, therefore, order for outright confiscation of the same under clauses 8, 9, 89 and 90 of sections 156(1) and 157(2) of the Customs Act, 1969".
4. When the appellant came into knowledge about Order-inOriginal No,134/2011 dated 14-4-2011 passed against the impugned vehicle by the Additional Collector of Customs, MCC, Quetta during the pendency of Review Petition No,04/2011 filed by Commandent FC, Noshki in Criminal Quashment No,50/2011 before the Hon'ble High Court of Balochistan, then appellant being aggrieved and filed this appeal before this Tribunal as per direction of Hon'ble High Court along with application and affidavit for condonation of delay while disposing off the Review Petition on grounds as under:--
(i) That the Order-in-Original No,134/2011 dated 25-4-2011 passed by the respondent to the extent of confiscation of Toyota Pickup D/Cab bearing Registration No,KM-5979, Engine No,IKZ0037038 and Chassis No,MR.033ING600004037, is contrary to facts and law, as such, liable to be set aside.
(ii) That the order impugned herein is based on surmises and conjunctures as welt as non- speaking, resulting miscarriage of justice. The order passed when the case in which the vehicle was taken into custody i,e, F.I.R. No,09/2011 was under trial before_ the learned Special Judge Control of Narcotics Substances/ Sessions Judge Noshki, and the said court has absolute jurisdiction to confiscate/release the vehicle, but the respondent without considering the same passed the impugned order which is highly uncalled for.
(iii) That the learned Division Bench in the High Court of Balochistan, Quetta while passing the order dated 14-9-2012 in Review Petition No,4/2011 held that, while passing the aforesaid confiscation order, the respondent has acted illegally and with material irregularity by completely ignoring the material available on record and has passed the said order in clourful exercise of jurisdiction not vested in it, particularly when the matter was subjudice before the Trial Court and it was the trial court while pronouncing the final judgment, to have decided the matter of confiscation of the vehicle in question or otherwise, since the vehicle in question was subject matter of crime in question, therefore the respondent. was not empowered to adjudicate upon the matter, because no one can be vexed twice for one and same offence in view of the section 403 of Cr.P.C., Section 26 of the General Clauses Act and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
(iv)That admittedly the vehicle in question is in the name of Ghulam Muhammad but neither the investigating agency nor the trial court put him on notice his vehicle was seized in a crime. It is relevant to point out here that the respondent has also not issued any notice to the owner or appellant while confiscating the vehicle in question and passed the impugned order which is highly uncalled for.
(v) That the appellant being last and legal possessor of the vehicle in question was required to be heard before passing of the impugned order, but this fact was also ignored by the respondent, resulting miscarriage of justice and there are various other illegalities, irregularities and improprieties in the order impugned herein, on the basis of which the same is not sustainable and is liable to be set aside.
(vi)That it is prayed that the record from the respondent may kindly be called for and after examining the same the Order-in-Original No, 134/2011 dated 25-4-2011 passed by respondent, be set aside and the vehicle in question Toyota Pickup D/Cab bearing Registration No, KM-5979, Engine No,IKZ-0037038 and Chassis No,MR033ING600004037 be released in favour of appellant with any other relief in the interest of justice.
5. During the hearings of case, the learned Advocate for the appellant stated that the present appellant is running rent a car business at Bhittai Colony Korangi Crossing, Karachi since long and for this purpose he used to obtain on rent the vehicle of different people. On 20-10-2010 vide agreement the appellant hired a Toyota Helix Double Cab (Tiger) bearing Registration No,KM-5979 from its owner namely Ghulam Muhammad son of Haji Behram Khan r/o Gulistan Johar, Karachi on monthly rent of Rs,30,000. Thereafter the appellant rented out the said vehicle to one Abdul Aziz Baloch s/o Muhammad Karim r/o Muslim Abad Nushki, District Chaggi vide rent agreement dated 16-11-2010 on monthly rent of Rs,45,000 for a period of six months from 16-11-2010 to 15-5-2011. After expiry of rent period the appellant contacted Abdul Aziz on mobile phone but same was going off, therefore, through notables of area, vehicle was traced out that the Noshki Police seized the vehicle in connection with a Narcotics Crime under F.I.R. No,09/2011 dated 30-1-2011 under section 9(c) of CNS Act, 1997, therefore, the appellant moved an application under section 516-A, Cr.P.C. before the Special Judge Control of Narcotics Substance/Sessions Judge Noshki for release of vehicle on superdagi to appellant, but the learned trial Court dismissed the said application vide order dated 26-6-2011, therefore appellant filed a Quashment Petition No,50/2011 before the Hon'ble High Court of Balochistan. The Honourable High Court of Balochistan passed the order as under:-- "In the light of above discussion, appeal is accepted. Vehicle bearing Registration No, KM-5979 Sindh a Double Door Hilux is hereby directed to be released on superdari to the appellant, subject to furnishing surety bond in the sum of Rs,500,000 (rupees five hundred thousands) to the satisfaction of trial court. The observations made hereinabove are absolutely tentative in nature which shall not affect the merit of the case."
6. As per release order by-Hon'ble High Court of Balochistan, the appellant approached to the trial Court, the trial Court vide Order No,558/2011 dated 21-7-2011 ordered to the seizing agency for release of vehicle on superdari in light of order of superior court but the seizing agency did not comply with and filed a Review Petition No,04/2011 in Criminal Quashment No,50 of 2011 before the Hon'ble High Court, the order of Additional Collector of MCC, Quetta was also brought in the notice of Hon'ble High Court during the pendency of Review Petition, therefore, the Hon'ble High Court passed order as under:-- "We have heard learned counsel for the parties at length and have gone through the record minutely. While deciding the fate of aforesaid application, whereby the vehicle in question was ordered to be released on superdari to applicant Zain Ali by this Court, both the parties to the said proceedings have not disclosed the fact that prior to aforesaid decision, Additional Collector, MCC, Quetta, vide its order dated 13-4-2011 outrightly order for confiscation of the vehicle in question under clauses 8, 9, 89 and 90 of sections 156(1) and 157(2) of the Customs Act, 1969 and, thus, the order under review was passed. Since the error apparent on the surface of record is curable and when both the learned counsel for the parties were confronted with the said fact, they consented for review of the order passed by this Court, as such, with consent of the parties counsel, we are inclined to accept the Review Application No,04 of 2011 and review the order dated 11-7-2011 passed by this Court and dismiss the Criminal Miscellaneous Quashment Petition No,50 of 2011 (subsequently converted into appeal). Resultantly, the Contempt Application No,8 of 2011 is also dismissed.
Before parting with the order, we have observed that Additional Collector, Model Customs Collectorate, Quetta, while passing the aforesaid confiscation order, has acted illegally and with material irregularity by completely ignoring the material available on record and has passed the said order in colourful exercise of the jurisdiction not vested in it, particularly when the mater was subjudice before the trial court and it was the trial Court, while pronouncing the final judgment, .to have decided the matter of confiscation of the vehicle in question or otherwise. Since the vehicle in question was subject matter of the crime in question, therefore, the Additional Collector of Customs was not empowered to adjudicate upon the matter, because no one can be vexed twice for one and same offence in view of section 403 of the Cr.P.C., section 26 of the General Clauses Act and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
In view of the peculiar facts and circumstances of the case, applicant- Zain Ali is at liberty to file an appeal under the relevant provisions of the Customs Act, 1969 before the Customs authorities for redress of his grievance. Since it is a case of hardship, therefore, the Customs authorities are directed to entertain the appeal of the applicant, if presented, by condoning the delay in filing of the appeal and to decide the matter on merits strictly in accordance with law without being influenced by the instant order."
7. He further contended that even having the knowledge about title and ownership of the vehicle the concerned Police Officials or their affiliates during the investigation of the subject case neither called the owner of the vehicle nor charged him under any provisions of law. The present appellant also filed an application before the Trial Court under section 516-A, Cr.P.C. for the release of vehicle in question on superdari. After denial/rejection of application from the Trial Court, the present appellant filed a Petition before the Hon'ble High Court of Balochsitan wherein the Hon'ble High Court passed order after due deliberation and discussion along with the arguments and accept the appeal and issued directions for release of said vehicle to the appellant against the surety bond of Rs,5 lacs. The respondent/police officials, I.G. Frontier Corps, Balochistan through Commandent filed a review petition and challenged the order of Hon'ble High Court through a Review Petition No,4 of 2011 before Hon'ble High Court of Balochistan. During proceedings of subject review application, the present appellant came to know that the concerned Additional Collector, MCC, Quetta passed an order dated 14-4-2011 wherein the subject vehicle was out rightly confiscated in accordance with provisions of Customs Act. By noticing and observing the facts, the Hon'ble High Court of Balochistan recalled the order previously passed on 11-7-2011 considering the different arguments and law points placed during the hearing of review application. The Hon'ble High Court passed an order and set on liberty that, the appellant Zain Ali to file an appeal under relevant provision of Customs Act, 1969 before the Customs Authorities for redress of his grievance also observed that since it is a case of hardship therefore the Customs Authorities are directed to entertain the appeal of appellant if presented with condonation of delay in filing of the appeal and to decide the matter on merits strictly in accordance with law without being influenced by the instant order. The order was passed on 14-9-2012 and certified copy was obtained on 17-9-2012.
8. In compliance of order dated 17-9-2012 the present appeal was filed before this Tribunal on 28- 9-2012. He further contended that the issuance of show-case notice by the Additional Collector of Customs dated 17-3-2011 and subsequent order in original passed thereon dated 14-4-2011 was not in knowledge of appellant and same was passed behind his back. The show-cause notice was not addressed to the owner of impugned vehicle as well as he has also not shown, as party at the time of passing order-in-original. All the subsequent proceedings were brought into the knowledge of appellant during the proceedings of review application before the Hon'ble High Court of Balochistan and as such subject delay for filing the appeal is neither deliberate nor intentional but same was caused due to unavoidable circumstances.
9. The appellant also moved an application for condonation of delay along with appeal. After due process of notices served on the respondents and considering the arguments placed before the Tribunal and the peculiar circumstances caused and faced by the appellant are being considered and in accordance with due procedure of law by the order of Tribunal dated 21-2-2013, the delay was condoned through a speaking order and case was fixed for regular hearing that on the date of hearing no body appeared on behalf of Collectorate of Customs, Quetta respondent No,1 nor any body appeared on behalf of Commandent, FC, Noshki, Balochistan despite of issuance of notices.
For sake of natural justice and equity we prefer to dispense with the case on its merits, evidences available on record as well as arguments placed before the Tribunal in assistance thereon by the appellant and in consideration of all subject observations passed by the Hon'ble High Court as well as the additional observations made thereon by this Tribunal. It has been further observed that the very crucial point which is mandatory to be observed that whether the Commandent, FC, Noshki and their affiliates working under their command are competent to make the seizure of subject impugned vehicle and the Collector of Customs Quetta is competent or have jurisdiction to issue a show-cause notice to clarify the same the reference of section 7 of Customs Act, 1969 is mandatory and to understanding its contents and jurisdiction assigned thereon. The subject statutory obligations of section 7 says as under:-- Assistance to the officers of customs.---All officers of Central Excise, Police, and the Civil Armed Forces, and all officers engaged in the collection of land-revenue are hereby empowered and required to assist officers of customs in the discharge of their functions under this Act.
10. In this particular case neither the Collectorate but the officials of FC intercepted the subject impugned vehicle on 30-1-2011 and kept .the same under their custody without informing or intimation to Customs officials and subsequently made the seizure without having anyjurisdiction.
Only jurisdiction which they have may be assumed by invoking Section 7 of the Customs Act under which all officials of Civil Armed Forces are only empowered and required to assist the officials of Customs in discharging of their functions only. But on the contrary it is evident from the record that after lapse of approximately one month of A seizure, the officials of FC Balochistan, Quetta informed subject detention/seizure of vehicle through a letter dated 4-2-2011 to Customs officials and thereon Additional Collector of Customs issued impugned show-cause notice on 17-3-2011 which was contested by the appellant on the point that when the seizure was made by the FC Balochistan, Quetta and subject impugned vehicle was in the custody of the same Civil Armed Forces how the Additional Collector of Customs has the jurisdiction to issue a show-cause notice under section 2(s) read with section 16 of the Customs Act, 1969 in violation of provisions of subsection (1) of section (3) of Import and Export (Control) Act, 1950 punishable clauses 8, 89 and 90 of sections 156(1) and 157(2) of the Customs Act, 1969. The crucial point is required to be answered in accordance with law, evidently there is no standard of proof in shape of evidence available on record to substantiate the allegation allegedly raised against the appellant. The subject penal proceedings are criminal in nature which required a proof beyond all reasonable doubts and if it is not, the impugned action of the department are held to be completely without jurisdiction, illegal, void, ab initio and of no legal affect. According to legal provisions of section 187 of the Customs Act as well as the principle of law of evidence contain in Article 117 of Qanun- eShahadat, it is sole responsibility vested with the seizing agency to shift the burden of proof in support of their allegation. In this particular case the affiliates and officials of FC after the seizure of the impugned vehicle reference made to Customs Authorities with the specific allegations. The subject allegations are found perverse and based on no evidence, where the wrong inference is drawn from the evidence on records or where there is a violation of any rule of law or statute which forms the subject matter to establish the charge as reflected in the show - cause notice. No such kind of findings and evidences were recorded or mentioned in the show-cause notice when there is no evidence in proof thereof the said alleged issue and charge become irrelevant and subsequent orders have been passed also become irrelevant. It is a settle principle of law that where the initial order or notices is void, all B subsequent proceedings, orders or superstructure built on it are also void.
11. It is also observed that under section 223 of the Customs Act, the officers of the Customs should follow Boards orders and comply with the statutory obligations such instructions manifold in their scope and design expressed to be used as guidance for the conduct of affairs of each department.
It should be plain when such instructions no legal right can be infringed for the implementation of relevant rules. It will be extremely unfair to make departure from such legal obligations. It is also settled principle when to maintain the administration of justice and without prejudice to any one, it is required to make justice within procedure in accordance with law as litigant who approaches the court for the relief is how for the relief is bound to substantiate what the procedure has been adopted by him, in accordance with the law, because it is elementary principle of law when if a particular thing is required to be done in a particular manner it should be done in that manner otherwise, it should not be done at all. It is also well settled law or principle of interpretation of fiscal statute, what has not been expressly written by legislature can not be implied such standard of legal maxim are not maintained in this case.
12. The respondent was not under any legal obligation or empowered to adjudicate upon the matter, because no one can be vexed twice for one and same offence in view of section 403 of the Cr.P.C., section 26 of the General Clauses Act and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The subject grave illegalities have no warrant of law and the action taken by the respondent is purely devoid, illegal, ultra vires without lawful authority.
13.Being custodian of law and first appellate independent forum we are determined to declare and pass order that the subject show-cause notice and subsequent orders passed during hierarchy of Customs are illegal void ab initio without jurisdiction and without lawful authority. The appeal is hereby allowed with no order as to costs.
14.Order passed accordingly.