'AQEEL AHMED ABBAS, J.---Through instant 'petition, the petitioner has impugned the proceedings initiated by the respondents in respect of Vehicle of the petitioner bearing No, G-5956, Chassis No MS-112-650476, Registration No, 21-0881870 Model 1981 Toyota Royal Crown Saloon and the order in original passed by the respondent No, 1 on the allegation of smuggling and tampering of chassis.
2. Learned Counsel for the petitioner submits that the petitioner is the fourth owner of the subject vehicle which has duly, been registered with the registration authority after fulfillment of all the legal requirements whereas; the petitioner is also in possession of the original documents, including the import documents i,e, bill of entry etc. In respect of the subject vehicle. Per learned Counsel, the petitioner himself has approached the Customs authorities for payment of duty and taxes, if any livable on the vehicle, as according to the petitioner, the body and engine of the vehicle being very old were changed by the petitioner. Per learned Counsel, from perusal of the show-cause notice issued under Section 171 and the impugned order in original passed by the respondent in respect of petitioner's vehicle, it is clear that the respondents themselves are not sure as to whether the subject vehicle is smuggled one whereas the allegation of tampering of chassis is also incorrect and misconceived as the changed has occurred due to replacement of body and engine. Learned Counsel for the petitioner has also referred to a judgment of a Division Bench of this Court in Special Custom Reference Nos. 263/2010, 245/2008 and 253/2008 wherein, according to learned Counsel, it has been categorically stated that the vehicle prior to the year 1998 cannot he held on the charges of smuggling in terms of Section 2(s) of the Customs Act, 1969 as the vehicle/cars were not included in the relevant Notification issued in this regard by the Government. Learned Counsel submits that the respondents are unnecessary dragging the petitioner in frivolous litigation, whereas, the entire proceedings, besides being mala fide, baseless and patently illegal. In conflict with the decision of a division bench of this Court. Therefore, the petitioner has approached this Court without any delay in filing the proceedings and to avoid any further litigation before the forums provided under Customs Act, 1969.
3. On the other hand, learned Counsel for the respondent has raised an objection with regard to maintainability of the instant petition on the grounds that the petitioner, instead of availing the alternate remedy available under the Customs Act, 1969 has directly approached this Court under Article 199 of the Constitution, hence, the petition is not maintainable. However, while confronted with the factual and legal position as stated by the learned Counsel for the petitioner. The learned counsel for the respondent could not controvert the same.
4. We have heard the learned Counsel for the parties, perused the record as well as the impugned order passed by the respondent No, 1 in the instant case, there is no cavil to the proposition that in normal course, particularly, in matters which are governed by special statutes such as Income Tax Ordinance, 2001 Customs Act, 1969, Sales Tax Act, 1990 and Federal Excise Act, 2005, an aggrieved person is required to approach before the forums provided under the relevant statute for redressal of the grievance within the prescribed period of limitation, instead of by-passing or abandoning the statutory forums. However, we may observe that the bar of alternate remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not an absolute bar, whereas, in appropriate cases, when the impugned action or order decision of the public functionary is patently illegal and without jurisdiction or is based on mala fides or has been taken or issued in violation of natural justice and against some settled legal position or the judgments of the Superior Courts and the alternate remedy is either inefficacious or illusionary, an aggrieved person can avail the remedy under Article 199 of the Constitution, which is a discretionary relief and if the Court, under exceptional and in view of peculiar facts and circumstances of each case, considers it to be a fit case to exercise the discretionary Constitutional jurisdiction, may entertain the grievance of the petitioner and may redress the same in accordance with law, whereas, the petitioner may not be left at the mercy of the departmental forum to face the rigors of law.
5. The controversy raised through instant petition by the petitioner has already been decided by a Division Bench of this Court in aforesaid Reference Applications in the following terms:--- "25. The foregoing is not merely an academic exercise or a consideration of section 2(s) in the absent, but a matter of great practical importance. The notification presently in the filed with regard to section 2(s) is SRO 566(1)/2005, dated 06.06.2005 ("SRO 566/05 ") as amended. This notification includes motor vehicles. It replaced and superseded SRO 491(1)/85, dated 23.05.1985.
Motor vehicles were not originally listed in the 1985 notification, but were added thereto only on 14.09.1998 by means of an amending notification, the 1985 notification itself replaced and .Superseded SRO 1426(1)/73 was considered by a learned Division Bench of this Court in Zarina ljaz v. M.A. Rahman and others PLD 1975 Kar. 484 in the specific context of an allegation of smuggling of motor vehicles and it was held that since motor vehicles had not been modified, no such offence was made out. The same view was expressed in. Ch. Niaz Ahmed and others v. The State PLD 1978 Kar. 774 (DB) in relation to the same notification. (Although the goods involved there were betel nuts, the principle is the same.).
26. One reason why it is important to establish whether or not the goods are "smuggled goods"
(i,e, whether or not section 2(s) applied) is that this determines whether it is clause (89) or (90) that is to apply. Clause (89) applied to smuggled goods and clause (90) applied to those goods to which the former does not apply, and clause (90) applied to those goods to which the former does not apply, i,e, those which are not smuggled goods. It is necessarily follows. From this that clauses (89) and (90) cannot simultaneously be held to apply to the facts and circumstances of a particular case. Either the goods involved are smuggled goods, or they are not. A determination or order that concludes that both clauses apply, or purports to hold a person liable in terms of both, is bad in law and cannot be sustained.
33. It will be recalled (see para-25 above) that motor vehicles were notified for the first time on 14.09.1998 for purposes of section 2(s) by means of an amending notification. It is important to keep in mind the effect of this notification. It applied to those vehicles as were brought into the country on or after 14.09.1998. (Of course, now the operative notification is SRO 566/05.) However, it did not apply to vehicles brought in before that date. Thus, the mere seizure of the vehicles after that date did not (and could not) of itself make section 2(s) applicable, one consequence of this is that prior to 14.09.1998, the only way in which a vehicle could be regarded as smuggled within the meaning of section 2(s) was if the second limb of condition (B) applied (see para 24 above), i,e, if it was brought into Pakistan by a route other than one declared under section 9 or 10 or from a place other than a customs-station. It was therefore only in this situation that clause (89) became applicable prior to 14.09.1998. Otherwise, only clause (90) applied."
6. In view of hereinabove facts and circumstances of this case and by respectfully following the decision of a division bench of this Court on the subject controversy, we are of the opinion that the proceedings initiated by the respondent and the impugned order passed in the instant case is without lawful authority and not sustainable in law, which is accordingly set aside. Nazir is directed to hand over the custody of the subject vehicle to the petitioner after proper verification and identification. However, the respondents may collect duty and taxes, if livable, in view of change of body and engine, in accordance with law from the petitioner. Petition stands disposed of in the aforesaid terms along with listed applications.