1. ' SAIDUZZAMAN SIDDIQUI, J.--The petitioner has challenged the order of respondent No,1 dated 4th March, 1981 passed in case No,SIB 131 of 1979 after it was remanded to him for hearing de novo by respondent No,2 vide its order dated 8-12-1980. The brief facts of the case in brief are as follows: ' It appears that the Customs Authorities seized launch 'Al-Nadia' bearing Painted No,6126-B on 13- 3-1979 on the suspicion that the said launch was involved in smuggling of contraband goods in Pakistan. A notice dated 11-6-1979 was accordingly served on the petitioner who is the owner of the launch to show cause why the above launch should not be confiscated. The show cause notice was contested by the petitioner by filing a detailed reply dated 21-7-1979, in which among other grounds, the petitioner alleged that despite his requests in writing the Customs Authorities have not supplied him copies of the documents allegedly seized from the launch and the statements of the witnesses recorded by the Investigating Officer in connection with the proceedings against him. Respondent No,1, however, did not agree with the contention of the petitioner and by order dated 24th October, 1979 not only ordered confiscation of the above launch under section 156(4) read with section 157 of the Customs Act but also imposed penalty of Rs,50,000 on Ilyas Karo, the Tindal of the launch under section 156(8)(2) and (28) of the Customs Act, 1969. Only petitioner preferred an appeal before respondent No,2 against the above order of respondent No,1 and it appears that during the course of the hearing, of the above appeal it was contended before respondent No,2 that the seizure and confiscation of the launch by the Customs Authorities was contrary to the rule laid down by the Supreme Court in the case of Haji Abdul Razak v. Pakistan (P L 1974 SC 5). The above submission of the counsel for the petitioner was accepted by respondent No,2 and accordingly the order of respondent No,1 dated 24th October, 1979 was set aside and the case was remanded back to respondent No,1 for de novo consideration after giving a fresh hearing to the parties. The case was re-heard by respondent No,1 and by order dated 4th March, 1981 he once again rejected the contention of the petitioner on the following considerations: "The case was remanded by Central Board of Revenue, for de novo consideration "of the points raised by the appellant during hearing of the appeal that the offending launch was used for smuggling of contraband goods without the consent of the owner or knowledge or connivance and that he had reported to the customs authorities as well as other authorities about the missing of his launch much before its seizure by the Customs Authorities.
2. Sheikh Azizullah Advocate appeared on behalf of the respondent and invited attention to Supreme Court's decision vide PLD 1974 SC 5 and emphasised that unless involvement of the owner of the launch Al-Nadia was proved, his launch was not liable to confiscation.
3. I have gone through the record of the case as well as the verbal submissions of the Advocate of the respondent. The factual position is that the launch Al-Nadia had left New Fish Harbour for fishing against port clearance issued by the Customs staff. This aspect of the case has not been denied by the respondent and as such the launch had left Karachi waters with the express permission of the owner under the command of his Tindal. The case cited by the learned advocate pertains to a conveyance which was stolen. The present case is, therefore, quite distinguishable from the case cited by the learned Advocate. Since the launch was not stolen and was operated by an authorised tindal of the respondent, the arguments advanced by the Advocate of the respondent are not acceptable. The circumstances of this case materially differ from those of the case cited by him. Confiscation of the launch shall therefore stand.
2. (Sd.)
3. (M.Mubeen Ahsan), Collector of Customs, (Preventive)".
4. ' The petitioner, thereafter, presented the above petition in this Court challenging the order of respondent No,1. From the diary of the case it appears that on 16-4-1981 when the petition came up for preliminary hearing before the Court it was pointed out to the learned counsel for the petitioner that an appeal having been filed against the order of respondent No,1 dated 31-3-1981 the petition was not maintainable. However, the learned counsel obtained adjournment in the case to ascertain the correct position in this regard and to report to the Court on the next date of hearing.
5. Accordingly the case came up before the Court on 20th April, 1981 in presence of Deputy Attorney- General who was on Court notice. On that date the learned counsel for the petitioner complained to the Court that the appeal filed by the petitioner against the order dated 31-3-1981 was not heard by respondent No,2. On the above complaint of petitioner the Court directed the learned Deputy Attorney-General to ascertain as to when the appeal could be disposed of by respondent No,2, after hearing the petitioner. Thereafter when the case came up in Court on 14-5-1981 the learned Deputy Attorney-General stated that the number of appeal filed by the petitioner was not available on which the petitioner supplied him the necessary details in this regard. Thereafter when the case was called up in Court on 2-6-1981, the learned Deputy Attorney-General requested the Court to adjourn the case after summer vacation in order to enable respondent No,2 to dispose of the statutory appeal filed by the petitioner. The Court accepted the request of learned Deputy Attorney-General and adjourned the case with the direction that it may be fixed in August, 1981. On 27-8-1981 when the case came up in Court once again for preliminary hearing the learned counsel for the petitioner complained that in spite of time having been granted by the Court to respondent No,2 to dispose of the pending appeal of the petitioner the same was not disposed of. It was accordingly contended before the Court that as the launch was seized about 3 years back, the pending appeal of the petitioner could not be treated as an alternate and efficacious remedy in the circumstances of the case and as such pendency of such an appeal could not be a bar to the entertainment of petition under Article 199 of the Constitution. On the above contention of the learned counsel for the petitioner the petition was admitted to regular hearing but no stay was granted against the pending proceeding under the Act. This petition has now come up for regular hearing after about 8 years. Mr. Dastgir Ghazi, the learned counsel for the respondents at the hearing of this petition raised a preliminary objection that this petition is not maintainable as the petitioner has failed to exhaust the statutory remedy of appeal provided under the Customs Act.
6. On our enquiry, Mr. Dastgir was unable to make any statement regarding the fate of appeal `filed by the petitioner before respondent No,2. It would appear from various orders passed in the above case from time to time that the appeal was presented by the petitioner immediately against the order of respondent No,1 dated 31-3-1981 but till today respondent No,2 has neither heard nor disposed of the same. In this connection we may refer to an affidavit dated 26-8-1981 filed in Court by Qasim All son of Muhammad, Court Clerk of the counsel for the petitioner, alongwith a copy of letter dated 18-7-1981 addressed to Mr. Azizullah Shaikh the counsel for the petitioner by a Second Secretary, of the Office of Central Board of Revenue, Karachi. In the said letter respondent No,2 had asked the petitioner to supply a copy of the above writ petition. According to affidavit of Qasim Ali the copy of writ petition was duly supplied to respondent No,2 but no date of hearing was fixed in spite of his specific request in this regard. No counter-affidavit to the above affidavit was filed on behalf of the respondents and Mr. Dastgir Ghazi is unable to produce copy of any order passed by respondent No,2 in the appeal. In these circumstances we are not impressed by the contention of the learned counsel for the respondents that the petition is not maintainable as the petitioner has failed to exhaust the alternate remedy available to him under the statute. It is rightly contended by the learned counsel for the petitioner that in the circumstances stated above the remedy by way of appeal available under the Act has lost its efficacy and can neither be treated as alternate nor speedy remedy in the circumstances of the case. We accordingly overrule the preliminary objection raised on behalf of respondents. Coming to the merits of the case we find that after remand of the case by respondent No,2 for de novo hearing, respondent No,1 distinguished the case of Haji Abdul Razzak v. Government of Pakistan relied by the petitioner before respondent No,2 by saying that the disputed launch 'Al-Nadia' admittedly left New Fish Harbour Karachi for fishing against Port Clearance issued by Customs which meant that the launch had left Karachi Port with the express permission of petitioner under the command of his Tindal while in the case of Haji Abdul Razak v. Government of Pakistan the conveyance was stolen which distinguished the present case from the cited case. The ratio laid down by the Supreme Court in the case of Haji Abdul Razzak v. Pakistan appears at pages 10-11 of the report as follows:- "It appears to us that there is a great deal of force in the reasoning of the learned Judge in this case. If the words "liable to confiscation" give a discretion to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the persons sought to be deprived of the property must be given notice to show cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive due consideration. Furthermore, according to one of the principles now well-accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed.
7. ' No innocent person should be unjustly punished or deprived of his property. This was the cardinal principle which was followed by the learned Judge of the Calcutta High Court in the last mentioned case. We too think that this was the correct principle upon which the authorities should proceed.
8. ' The question is whether that has been done in this case. The learned Attorney-General maintains that this has been done, but we are unable to agree with him, for, in the findings of the Government itself, involvement of the appellant in the act "was not proved by the Department". Indeed, there was no indication even that the owner of the vehicle was also involved. If that be so, then it is difficult to appreciate on what basis even a reasonable suspicion could arise as to the complicity of the appellant. The mere fact that the F.I.R. About the theft of the vehicle was lodged after the vehicle had been seized at another place by the Customs Authorities does not mean that the appellant must have had earlier knowledge of the illegal or improper use of the vehicle. The authorities should have made some attempt to show at least that the knowledge of the seizure had been conveyed to the appellant before he lodged the report at the police station. In these circumstances we would allow this apppeal, set aside the order of the Customs Authorities, and direct that the vehicle confiscated by released forthwith."
9. ' We are unable to accept the reasoning given by respondent No,1 in the impugned order to distinguish the above case. That the launch belonging to petitioner had left for fishing after obtaining necessary port clearance cannot be construed as a circumstance in support cf the conclusion that the alleged subsequent involvement of the launch in the alleged acts of smuggling was with the permission and connivance of petitioner. It is significant that the conclusion of respondent No,1 that the launch "Al-Nadia" was involved in acts of sumuggling is based, on certain documents alleged to have been recovered from the launch by respondent No,1 at the time of its seizure. The petitioner made a grievance to respondent No,1 in his representation against the show-cause notice that neither copies of the documents nor the statements of witnesses which allegedly proved involvement of his launch in alleged acts of smuggling were supplied to him.
10. There is nothing in the impugned order to show that these documents were supplied to petitioner or that he was given an opportunity to explain his position with regard to the evidence collected against him in the case by the department. The respondents have also not placed before us in the case the above documents to support the conclusion of respondent No,1. It is an admitted position in the case that at, the time of seizure of the launch by respondent No,1 it contained no smuggled or contraband goods on board. The petitioner had denied his involvement or knowledge about the alleged acts of smuggling. He also took a specific ground before respondent No,2 in his appeal that when the launch did not return within the time given in the port clearance he had informed the Customs Authorities of his apprehensions about the possible, misappropriation, theft or breakage of the launch. In these circumstances it cannot be said that the alleged involvement of launch in the alleged acts of smuggling was at the instance of the !Petitioner. The ratio laid down by the Supreme Court in the case of Haji Abdul Razzak v. Pakistan in our opinion, therefore, applies to the present case with all force. We accordingly allow the petition and declare the order of respondent No,1 dated 4-3-1981 as without lawful authority and of no legal effect. There will, however, be no order as to costs.