MR. GHULAM AHMED, MEMBER (TECHNICALII).--(1). The appeal, filed by the appellant, is directed against Order-in-Appeals Nos. 4071 to 4072 dated 7-7-2010 passed by the Collector of Customs (Appeal) maintaining the Order-in-Original No. 3 of 2010 (Manual) dated 19-1-2010 passed by Additional Collector of Customs, MCC (PaCCS), Karachi.
2. Upon perusal of the order-in-original it has been observed that the order by the Additional Collector of Customs MCC of PaCCS was passed against the appellant, whereas appeal with the Collector of Customs (Appeals) and Tribunal was filed by some Muhammad Rustam Qureshi in the capacity of father of the appellant on the plea that since the appellant is confined in the jail at Peshawar and his authorization cannot be obtained timely, therefore to defeat the limitation period he filed the appeal. This is not permissible under law, an appeal has to be filed by the person against whom the order has been passed.
3. This aspect was raised at the time of hearing by the respondent with the submission that since the person who filed appeal is a non-entity as per the expression of section 194-A of the Customs Act, 1969, hence Its no legal right to file appeal as he has no locus standi. Upon this the Tribunal asked the counsel for the appellant to prove the locus standi of the person signing the appeal, to which she appraised the Tribunal that since at the time of filing appeal the appellant Mr. Muhammad Naeem Qureshi was confined to judicial custody at Peshawar under F.I.Rs. Nos. 9 to 23 of 2012 at Central Prison Peshawar and said confinement was certified by the Superintendent, Central Prison Peshawar through A letter dated 15-2-2010, which is annexed with the memo. Of appeal. On this, the Tribunal asked the counsel to certify in regards to the locus standi that under what authority father of the appellant/ accused filed the subject appeals and executed affidavit and to the fact that why she has not cured the said defect during the pendency of the appeal, which is very much permissible as per law laid down by the Superior Judicial Fora. The counsel of the appellant was flabbergasted and failed to satisfy the Tribunal.
4. The statutory binding and restriction as defined in section 194-A of the Customs Act, 1969 are mandatory in nature under which the appeal has to be filed. The counsel was duty bound to get the appeal signed by the appellant upon his release from the prison for the sake of regularization and to cover the defect of locus standi as held in reported judgment 2011 CLD 408 Soneri Bank Ltd. v. Classic Denim Mill (Pvt.) Ltd., and others that "signing, verification and drafting of plaint in a manner were of mere procedure thus relevant provision could not be strictly construed. Rules regarding verification and signature on plaint, being matter relating to procedure were to be liberally construed. Such presentation or signing could not make plaint a nullity. Rules and regulation are only meant to streamline the procedure and administer the court of justice and but not to thwart the same. Duty of the court is to do substantial justice prime object behind all formalities is to save guard the paramount interest of justice mere technicalities, unless offering insurmountable hurdles should not be allowed to defeat the end of justice. Legal precept are devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure the same against arbitrariness".
5. The appeal under section 194-A of the Customs Act, 1969 has to be filed by the person aggrieved by the order, meaning thereby against whom order has been passed and by none else, which the counsel failed to abide at the time of filing appeal i.e. 6-9-2010 and neither the said defect was cured till 25-6-2013, rendering the appeal non maintainable on the point of locus standi and this opinion of the Tribunal stood validated from the order of the Supreme Court of Pakistan in reported judgment PTCL 2008 CL. 337 Director, Directorate General of Intelligence and Investigation v. Al-Faiz Industries (Pvt.) Ltd., and others, wherein it was held that "section 196 requires filing of an appeal by the Collector and none else, the appeal filed by Director of Customs would therefore be absolutely illegal, incompetent and not maintainable". Likewise the father of appellant was not an "aggrieved party", hence signing or verification of appeal by him amounts to be filed by an unauthorized person and as such not maintainable.
6. Considering the fact of the case, legal aspect and emerging circumstances, the subject appeal is hereby dismissed in limine.