QALANDAR ALI KHAN, J.---This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been lodged on behalf of M/S. Gokul.S.Arora, Proprietor G.N Textile (Pvt.) Ltd., RIO City Surat, India, through attorney Muhammad Ajmal son of Haji Abdul Hakeem, resident of Faqir Sarai, Chowk Gulbahar No,3, Peshawar, for declaration of action/decision/order of the respondents as unlawful, without lawful authority and of no legal effect; and direction to the respondents to release containers of the petitioner forthwith.
2. The writ petition is primarily based on the Trade Transit Agreement signed between Pakistan and Afghanistan on 02.03.1965. The agreement was given the name of "Goods in transit to Afghanistan"
(GITTA), and since then Afghanistan has been importing all types of goods from abroad through Karachi Sea Port from where these were sent to Afghanistan through Torkham, Khyber Agency, Khyber Pakhtunkhwa, and Chaman, Balochistan. The goods were transported inside Afghanistan by Trucks/Trailers. The petitioner, being an exporter from India, sent three containers for Afghanistan through Karachi, but these containers were detained at the National Logistic Cell (NLC), Aman Garh, Nowshera, on 12.12.2010, and have not been released for onward movement to Afghanistan ever since. The containers have been detained on the ground that all these belonged to JJ Enterprises who was accused in FIR No,67/2010. The petitioner claimed that as a matter of fact, the clearing agents of the petitioner were Ishtiaq and sons and Mehran Agency (Registered), which were declared different firms/persons by the Deputy Collector Custom, Aman Garh, and Additional Collector Custom, Custom House, Peshawar, therefore, the containers were released vide order dated 04.02.2011 in favour of the said Ishtiaq and sons, but once again the Collector of Custom, Peshawar i,e, respondent No,3 withheld one Container No,TOLU-3061439, allegedly, with mala fide and ulterior motive. The petitioner further alleged that in order to cover up the illegal and unlawful delay caused in sending the containers to Afghanistan, a false, fake and fictitious FIR No,14 dated 10.02.2011 was registered in PS I and P after delay of 101 days wherein Ishtiaq and sons were not charged, however, their names were added in the case subsequently. Moreover, the FIR, referred to above, was in respect of three other containers and not in respect of containers of the petitioner, which were subject matter of the instant writ petition, and which were withheld unlawfully and against the terms and conditions of. Afghan Transit Trade Agreement, 1965, as the containers were not subject to custom duty, tax, dues or charges of any municipal authority, in view of Article IV of the agreement. It was further alleged by the petitioner that in letter to the Chairman FBR Islamabad (respondent No,1), the petitioner had pointed out that the containers were unnecessarily and without any lawful excuse parked in NLC Aman Garh due to litigation between Collector Custom and Mr. Hamid Zia Naween, causing irreparable loss to the interest of the importer; hence the writ petition
3. In the detailed para-wise comments, respondent No,3 pointed out that three transit containers of Polyester Fabric were imported by Messrs Hamid Zia Navin Limited, Kabul, Afghanistan, in Afghan transit and after reaching TFS NLC Aman Garh, the same were clandestinely removed by the importer from the premises of NLC Aman Garh instead of legal clearance as per procedure in vogue and that prior to registration of FIR, other containers of the same importer were stalled due to ongoing investigation of the missing containers. The three containers in respect whereof FIR No, 14 was lodged, had reached NLC Aman Garh before the arrival of these subsequently detained containers and that the Investigation later on resulted in filing of FIR No,14 of 2011 against the importer, clearing agent, NLC and Customs authorities and further that during investigation, other containers of the importer were detained/withheld under section 186 (11) of the Customs Act, 1969.
The respondent disclosed that all the parties involved were called upon during investigation for recovery of duty/taxes; and recovery proceedings under section 202 of the Customs Act, 1969, were also initiated, and Hamid Zia Navin, being owner of the detained goods, was issued notices under the legal provision of relevant law, therefore, request for release of the detained container could not be considered in view of recovery proceedings. The respondent further pointed out that the goods entered in transit across Pakistan to a destination outside Pakistan were to be allowed in transit without payment of duties which would otherwise be chargeable, but when an offence is committed with respect to such goods, causing loss to the national exchequer; and if violation of sections 128 and 129 of the Customs Act, 1969, is reported, then the goods no more remain transit and the punitive provision of Custom Act, 1969, are invoked, in the light of judgment of this Court in Customs Reference No,34/2011 in case titled Collector of Customs v. Shirkat Khushbakht Sultan Ltd.
The respondent defended the impugned action on the ground that the consignment of fabric being transited through these containers was the property of Hamid Zai Naween an (Afghan Commercial Transit Importer) against whom recovery proceedings had already been initiated under section 202 of the Customs Act, 1969, therefore, in terms of section 202(1)(b) of the Customs Act, 1969, the Government dues could be recovered by detaining and selling any goods belonging to such person which were under the control of the customs. It was also pointed out that Hamid Zia Naween, being importer/the main beneficiary in the instant case, had hired the services of the customs clearing/border agents namely Ishtiaq and sons and Mehran Custom Agency, who failed to clear the transit goods from the premises, of TFS Aman Garh in accordance with the legal procedure, therefore, the importer was responsible for the acts done by his authorized persons as envisaged under section 209 of the Customs Act, 1969. The respondent defended lodging of FIR and recovery proceedings against the importer on the ground that if the consignments were allowed to cross the border to Afghanistan, the adjudged amount would never be recovered from the Afghan national.
4. Arguments of learned counsel for the parties heard; and record perused.
5. Admittedly, the instant writ petition was filed on behalf of an Indian national by a Pakistani citizen, but without any power of attorney or resolution of the company, which was later on furnished, that too, without having been authenticated by the Embassy of Pakistan in India. It is also an admitted fact that the petitioner is exporter, while consignee/importer in the instant case was Hamid Zia Naween; therefore, the exporter/seller unconditionally apportioned, and property passed to the buyer/consignee when goods were delivered to the carrier, in the light of principle enshrined in section 23 of the Sale of Goods Act, 1930. As such, there should be no doubt that when the goods were delivered to the carrier for their transmission to the buyer in Afghanistan, in transit through Pakistan, the exporter/seller diverted himself of the right of ownership with respect to the goods, so as to lodge writ petition in Pakistan all the way from India to claim ownership of the goods and plead the cause of the buyer/consignee who was involved in a criminal case and was an absconder/fugitive from law, thus could not put forth a legal claim to the goods.
6. In any case, the bilateral trade transit agreement was between Pakistan and Afghanistan, and neither there was trilateral agreement Pakistan and Afghanistan, that too, for the cause of an amongst Pakistan, India and Afghanistan; nor, as such, an Indian national could take undue advantage of a bilateral agreement between Pakistan and Afghanistan, that too, for the cause of an absconder importer from Afghanistan, enjoying certain immunities under the Trade Transit Agreement but certainly after fulfilling the necessary preconditions of the Agreement, including adhering to laws of Pakistan, besides taking care of its security concerns under Article X of the Agreement.
7. In short, nothing was shown on behalf of the petitioner to make him entitled to any benefit under the Trade Transit Agreement between Pakistan and Afghanistan, especially in the face of recovery proceedings against the importer based in Afghanistan, who did not surrender to the process of law in Pakistan, and still remains absconder. There is, as such, no merit in the writ petition, which is hereby dismissed.