' K . A . GHANI, J.--This judgment will dispose of Haji All Asghar v. Central Board of Revenue and two others C.P.No,D-770 of 1984 and Yousuf Ali v. Central Board of Revenue and 2 others C.P.No,D-854 of 1984 both filed under Article 9 of the Provisional Constitution Order, 1981.
' The relevants facts are separately stated below: Regarding C.P. No,D-770 of 1985.
(i) The petitioner Haji Ali Asghar an Afghan National consigned 203 bundles (wrongly mentioned in the petition as 202 bundles) containing cloth and garments from Bombay to Karachi for onward transit to Taftan (Iran), vide bill of lading, dated 25-2-1961. According to the petitioner's own case (para. 2 of the petition) requisite permission from Ministry of Commerce, Government of Pakistan, Islamabad, for the transit facility was applied for which (alleged) permission was conveyed by the Ministry by its letter No,3/7/81/T.R.III, dated 3rd September, 1981 direct to the Central Board of Revenue, Islamabad. The consignments were thus booked from Karachi to Zahidan (Iran), vide Railway receipt No,2541, dated 5th October, 1985. The said goods passed through the territory of Pakistan and entered Iran where according to the petitioner 72 bundles mostly of unstitched cloth were allowed to be cleared by the said Government but the remaining 130 bundles mostly of garments were returned by the Iranian Government as the same were not acceptable. The bundles which were not accepted by the Government of Iran were reconsigned according to the petitioner from Zahidan (Iran) to Chaman in transit to Afgenistan, vide railway receipt No,0004858, dated 29th June, 1982. The Mobile Squad of the Customs, however, seized the said goods lying in the railway wagon at Taftan Railway Station. It appears that the consignment was seized as the petitioner in the first place carried the same purportedly in transit through Pakistan territory to Iran under permission purportedly granted by the Ministry which subsequently was discovered to be a forged document. As the forgery was not detected in time, the petitioner succeeded in carrying the consignment into Iran across Pakistan. However, a major portion of the said consignment was not accepted by the Iranian authorities the same was rebooked by the petitioner in Railway wagon, this time purportedly for transit to Afghanistan across Pakistan via Taftan. The consignment which thus reached Taftan was seized by the authorities in Pakistan as being in violation of law and not permissible.
(ii) The respondents in the counter-affidavits filed asserted that there is a transit agreement between Government of Pakistan and Afghanistan for Afghan nationals for carrying goods across Pakistan into Afghanistan whereas no such agreement exists between Iran and Pakistan. It has further been stated that even according to transit trade agreement between Pakistan and Afghanistan the traders of guch goods can only avail transit facilities via Karachi, Lahore and Chaman and that transit facility via Taftan is not admissible and that only Government of Pakistan is competent to allow such facility to the traders.
(iii) Adjudication proceeding therefore was taken up and after show-cause notice and an opportunity of being heard having been given to the petitioner (the petitioner choosing not to lead any evidence) by order passed on 31st March, 1983 the Deputy Collector, Central Excise and Land- Customs, Quetta came to the conclusion that the permission, dated 3rd September, 1981 purportedly granted by the Ministry of Commerce was forged which fact was subsequently detected as a result of which the goods were seized on 12-4-1983 as mentioned above. The Deputy Collector further held that it was a case of attempt to sumuggle the goods into Pakistan in the garb of transit.
(iv) Against the above order the petitioner filed an appeal before the Collector of Appeals (South Zone) which was dismissed by order passed on 14th May, 1984 with the observation that the goods were taken to Iran on forged transit permission which goods subsequently were again brought back into Pakistan for transit to Afghanistan. It was held that the order of confiscation passed by the Deputy Collector, Central Excise Customs was correct on facts and law both.
(v) Petitioner thereafter preferred a revision petition before the Central Board of Revenue, Government of Pakistan, which was also dismissed on 16th September, 1984 with the finding recorded to the effect that the transit facility was obtained on forged permission and that no convincing reason was given to refute the charge.
(vi) Against the aforementioned orders the petition C.P. No,D-770 of 1984 has been filed invoking the constitutional jurisdiction of this Court.
Regarding C.P. No,D-854 of 1984: 2(ii) The above petition has been filed by Yousuf Ali, also an Afghan national wherein he has stated that he wanted to consign 166 bundles mostly of cloth and garments after purchase from abroad, in transit through Karachi to Afghanistan but due to war conditions in Afghanistan and the general conditions and turmoil, he preferred to send these consignments to Iran for disposal thereby entering the same as goods for transit across Pakistan to Iran. It is further stated in the petition that for transit to Zahidan (Iran) he booked the consignments in two railway wagons Nos.71141 and 60288 on 20th September, 1981 and that the required permission from Ministry of Commerce, Government of Pakistan, was applied for through the Central Board of Revenue and that such permission was conveyed by the said Ministry, vide its letter No,3/7/81-T.R. III, dated 31st August, 1981 direct to Central Board of Revenue, Islamabad.
(ii) The case of the petitioner is pleaded as that out of abovementioned two railway wagons in which consignments (total 166 packages) were sent, the consignment booked in Wagon No,60288 was seized by the Pakistan Customs at Taftan border immediately before crossing into Iran on 30th August, 1982 and that in spite of lapse of over two years since then adjudication proceedings are still pending in the Collectorate of Central Excise and Land Customs, Quetta, in a different case in the name of Yaqoob Salashore. However, the other Wagon No,71141 containing 83 packages of cloth and garments etc. Reached its destination Zahidan (Iran) uninterrupted and thus its transit journey across Pakistan was completed. However out of these 83 bundles thus transmitted only 51 bundles mostly of unstitched cloth were accepted by Iranian authorities and the remaining 32 bundles mostly of garments were returned. The petitioner further pleaded that these 32 bundles were in transit to Afghanistan, vide railway receipt No,0004861, dated 7th July, 1982 but were wrongfully seized by Pakistan Customs Mobile Squad on 9th July, 1982 at Taftan.
' It appears that the seizure of these 32 bundles was pursuant to the information received by Pakistan authorities from the Ministry of Commerce to the effect that the transit permission earlier granted for carrying the consignment of Iran as conveyed, vide letter No,3/7/81-T.R.Ill, dated 31st August, 1981 was fake and forged.
' The Deputy Collector, Central Excise and Land Customs, Baluchistan, gave show-cause notice and after hearing the petitioner's counsel came to the conclusion that the petitioner had attempted to smuggle the consignments to Iran on forged documents and having failed in his mission for the reason that the goods were restricted in Iran, attempted to take the same consignment to Afghanistan by booking the said goods in the railway wagons which the said railway authorities had no power to do. It was held: "Taking all the circumstances of the case in view I am of the opinion that the accused attempted to smuggle the goods into Pakistan under the garb transit. The whole purchase, the number of people involved and the forgery and fraud committed in the case indicates their "mens rea" (i) offence as aforesaid is established. It is accordingly ordered that the offending goods be confiscated outright."
(iii) Against the above order an appeal was preferred before the Collector of Appeals (South Zone) at Karachi, which was dismissed by order, dated 14/15th May, 1984 upholding the order passed by the Deputy Collector.
(iv) The petitioner then preferred Revision Petition which was also dismissed by the Central Board of Revenue, Government of Pakistan/ respondent No,1, which also came to the conclusion that the transit facilities were obtained by the petitioner on forged permission and that he had not given any convincing reason to refuse the said charge.
3. Against the orders passed by the revenue authorities in the 2 cases, of which facts have briefly been stated above, the petitioners have filed the above petitions invoking constitutional jurisdiction of this Court.
4.(i) Mr. A A.H. Shah, learned counsel, who appeared for both the petitioners sought to impugn the orders passed by the revenue authorities by urging in the first place that under section 129 of the Customs Act, 1969 the petitioners in the absence of any Rule in the Customs Export Transit Rules, 1974 had unrestricted right to take the consignments in question even without any permission as the goods were entered for transit across the Pakistan territory into Iran and from Iran to Afghanistan.
' The contention thus raised, came up for consideration before us in the case of I.D. Jehani (an Iranian national) v. Central Board of Revenue C.P. No,D-822/84 but the same was repelled holding as follows:-- "7. Mr. Shah has submitted that under section 129 of the Customs Act, 1969 (hereinafter called the Act) no permission at all was required for transit of the goods to Iran. In view of this submission and for convenience of future reference we may first quote the provisions of section 129 of the Act, which read as follows:- '129. Transit of goods across Pakistan to a foreign territory.--Where any goods are entered for transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transmitted without payment of the duties which would otherwise be chargeable on such goods.'
8. Now, it is argued by Mr. Shah that the permission of the appropriate officer who would be the officer of Customs to whom functions to be performed under the Customs Act, 1969 have been assigned by or under the Act, would be necessary, if required by the rules and under the rules no such permission is required for the rules are silent on such requirement. In this regard reference is made to the Customs Export Transit Rules, 1974. There is no doubt that these rules are silent as to the permission to be allowed for transit of the goods from Pakistan to foreign country but we do not accept the argument of Mr. Shah that if the rules are silent then no permission of an appropriate officer would be required for that is the requirement of the provisions of section 129 themselves.
However, much emphasis is laid by Mr. Shah on the words "subject to the provisions of the rules" used in section 129 of the Act. The said words in our opinion, mean that appropriate officer has to give permission in accordance with the provisions of the Rules if any, and that if the Rules are silent as to the giving of permission that would not mean that no permission would be required
9. So far as permission granted by the Ministry of Commerce is concerned it has been found by the Customs Authorities to be forged. It is, therefore, clear that the goods were being transitted without any permission and breach of the law. Accordingly, the orders impugned in this petition are unexceptionable and do not require any interference in this constitutional jurisdiction."
(ii) The learned counsel then argued that the permissions granted for transit by the Ministry of Commerce even if are considered to be forged and fake, the consignments crossed the territory of Pakistan and entered into Iran and thus those packages out of the said consignments which were not accepted by the Iranian Government when rebooked into railway wagons for transit across Pakistan to Afghanistan the same should be treated as fresh transit of goods and their seizure at Taftan in Pakistan is liable to be declared as without lawful authority. This submission of the learned counsel, however, cannot be accepte as admittedly the consignments received back from Iran purportedly in transit to Afghanistan were the same which had been transited vi Karachi illegally under forged and fake permissions across the Pakistan territory which could not have been done unless validly allowed by the Customs Authorities as provided under section 129 of the Customs Act, 1969. For the same reason the petitioners could not have brought back the very consignments or any part thereof (earlier brought in Pakistan and taken across its territory into Iran illegally) and claim that these be treated as fresh consignments to be transitted across Pakistan from Iran to Afghanistan. It would be important to take notice of the fact that in the counter-affidavit filed on behalf of the respondents I these cases it has been expressly stated that transit facility- via Taftan is not admissible and that only the Government of Pakistan is competent to allow such facility. This assertion made on behalf of the respondent-has not been rebutted either by the petitioners by filing any affidavit in rejoinder or even during the course of arguments advanced by their learned counsel. I may refer here to sections 10(b), 16 and 17 0 Customs Act, 1969. Under section 10 (b) it is provided that the Boar may by Notification in the official Gazette:-
(a) specify the limits of any customs station; and
(b) approve proper places in any customs station for the loadin and unloading of goods or any class of goods.
Section 16 of the Customs Act, 1969, lays down that the Federa Government may from time to time by Notification in the official Gazett prohibit or restrict the bringing into or taking out of Pakistan any o the goods of specified description by air, sea or land. Then follow. Section 17 which provides:-- "Where any goods are imported into or attempted to be exporte out of Pakistan in violation of the provisions of section 15 or o a notification under section 16, such goods shall, without prejudic to any other penalty to which the offender may be liable unde this Act, or any other law, but subject to rules, be liable to detention and confiscation."
' Thus the seizure of the consignments and the orders of adjudication which are sought to be impugned based as they are upon findings of fact arrived at by the tribunals of competent jurisdiction, in my opinion, having been made with lawful authority in the circumstances, cannot be challenged in these proceedings.
The petitioners it may be observed, cannot take advantage o their own illegal and wrongful acts.
Nor there is justification in th plea raised by them' that the illegality and forgery be ignored and bringing back into Pakistan the very consignments or part thereof from Iran this time, purportedly in transit to Afghanistan via Taftan, ought to have been treated as fresh consignments in transit.
The petitioners' conduct cannot wipe out the violation of law and forgery committed earlier by them or their agents and the very consignment brought back in the country from Iran cannot clothe them with legality, in the circumstances.
5. Moreover, in the affidavit filed on behalf of the respondents it has expressly been stated that Taftan is not one of the posts through which transit facilities were admissible and that only Government of Pakistan is competent to allow such facilities.
6. The petitioners have expressly been found guilty of using forge permissions for transiting the consignments across the Pakistan territory. These findings reached by the tribunals of competent jurisdiction have not been challenged. The conduct of the petitioners in the circumstance is such that the same disentitles them from getting any relief in these proceedings. In the case of Abdul Manan v. Asstt: Director Immigration and Passport, Government of Pakistan, Karachi and another PLD 1972 Kar.138 it was held:- "It has been repeatedly held by this Court as well as the learned Judges of the Supreme Court that to successfully invoke the equitable jurisdiction under the constitutional proceedings it is a pre- condition that the petitioner should come with clean hands if otherwise, the relief is not to be granted."
' Reliance was placed in coming to above conclusion by the learned High Court on the cases of (1)
Tufail Muhammad v. Muhammad Zia Ullah Khan PLD 1965 SC 269; (2) Ch. Altaf Hussain v . Chief Settlement Commissioner PLD 1965 SC 68; (3) Muhammad Juran Mondal v. A.H. Chowdhry, District Judge PLD 1969 Dacca 416 and (4) Abdul Rashid v. Pakistan 1969 SCMR 119.
7. The upshot of the above discussion is that I find that the impugned orders of the tribunals were made in lawful exercise of thei jurisdiction and nothing has been shown by the petitioners to entitle them to the reliefs prayed for. Moreover, the petitioners who used forged and fake documents/ permissions for achieving their object of transitting the goods to Iran across Pakistan territory obviously have not come to this Court with clean hands. They in the circumstances cannot successfully invoke the constitutional and equitable jurisdiction of this Court to gain profit out of their own wrongful and illegal acts.
8. (i) Before concluding it may be observed that in the case of Yousuf All C.P.D-854 of 1984, the learned counsel for the petitioner did not advance any arguments before us to challenge the seizure of consignment which according to the petitioner was transitted from Karachi to Zahidan in Railway Wagon No,60288 and which according to him, was seized on 30-8-1982 at Taftan immediately before its crossing over into Iran. All that the petitioner has stated in para. 3 of the petition is that in spite of lapse of "over 2 years its adjudication is still pending in the Collectorate Central Excise and Land Customs, - Quetta in a different name of one Yaqoob Salashore".
(ii) From the perusal of the record we, however, find that this petitioner Yousuf All has suppressed material facts and that as to the consignment brought by him he has taken different stands at different stages, to which reference may be made here:-
(a) In the memo. Of revision filed before the Central Board of Revenue (Photo copy produced alongwith the Petition as Annexure D) under the title "Brief Facts of the Case" he had pleaded that the entire consignment which consisted of 166 packages, as transit goods, booked in two railway wagons Nos.711141 and 60288, from Karachi to Zahidan (Iran), vide R.R. No,25327, dated 20-9-1981, crossed Iran border at Taftan and reached Zahidan (Iran) but later on out of those 166 packages only 32 packager of ready made garments were rebooked from Zahidan to Chaman via Taftan for transit in Wagan No,73898, vide R.R., dated 7-7-1982 and that these 32 packages were seized by the Customs on 9-7-1982 on the pretext of forged documents of transit permission and ultimately confiscated.
(b) Earlier, however, before the Collector a totally different story was set up by him. The relevant finding reached by the Collector of Customs, is reproduced below:-- "I have, however, gone through the record of the case and have considered the case in the light of the arguments made and the documents on record. The defendant failed to produce any documentary evidence in support of his assertion at the time of hearing, that the consignment had in effect moved in transit from the first place of India (?) i.e. Bunder Abbas through Iranian territory to Zahidan. The investigation carried out in the case reveals a different story, 166 packages of cloth and Ready made garments and shoes from Kuwait were despatched by him to one Yaqoob Salashore c/o Hotel Bostan Karachi (in transit to Iran via Taftan by Pakistan Railway), vide Bills of Lading Nos.7 and 9, dated 31-3-1981. When the consignment reached Karachi Yaqoob Salashore managed to obtain a 'Transit permission which transpired later had been forged and obtained fraudulently (as Central Board of Revenue) Letter, vide C.No,1979-80/Cus/I&P/3(5), dated 18-3-1983, Yaqoob Salashore further 'Manipulated with Messrs Jan Corporation, Customs Agents, Karachi to book the goods to some different persons namely D.Jahani c/o Jalaluddin a resident of Iran, in Railway Wagons Nos.60288 and 71141, vide R.R. No,25327, dated 29-9-1981. Further inquiries conducted in the matter reveal that 83 packages loaded in Wagon No,60288 were seized by Customs Mobile Squad Taftan on 30-8-1982. The other Wagon No,71141 crossed into Iran as at the time of this crossing it was not known whether the transit permission granted to them was forged or not 32 packages out of the 83 packages originally booked in wagon No,71141 were got rebooked from Zahidan by Jalaluddin in Railway Wagon No,73898, dated 7-7-1982 "in transit" to Afghanistan via Taftan, Chaman.
' The picture that emerges from the foregoing facts is that the accused attempted in the first instance to smuggle the aforementioned goods into Iran on forged documents and having failed in his mission to dispose of his goods in Iran (owing to the fact that the seized goods are restricted in Iran) attempted to take the same to Afghanistan. It is further observed that the Railways had no authority to book the goods in transit to Afghanistan. They were asked to let this office know whether their action was legally correct but they did not respond."
(The underlines have been made by me.)
(iii) Thus we find that different and contradictory pleas were taken by the petitioner Yousuf Ali at different stages before the revenue authorities in order to serve his illegal ends and then in this Court yet another version was put forth. Moreover perusal of the orders of revenue authorities particularly that of the Collector of Customs passed in appeal shows that Yousuf All's case involves disputed questions of facts which cannot be resolved in this petition. The facts found against him by the Collector, of Customs whose findings were upheld in revision by the Board of Revenue were not even adverted to by Yousufali the petitioner in C.P. No,D-854/84. Thus he is also guilty of suppressing material facts.
9. The upshot of the above discussion is that both these petitions are dismissed but with no order as to costs.