' ZIA MAHMOOD MIRZA, J.---Abovementioned three appeals by leave of the Court are being disposed of together by this judgment as common questions of law and facts are involved in all of them.
2. Facts giving rise to each appeal are separately set forth hereunder:--
(i) C.A. 361 of 1993: Federation of Pakistan and others v. Jamaluddin ' Jamaluddin respondent, an Afghan National, residing at Kandhar was carrying on the business of imports into Afghanistan. He imported 18 consignments Mentioned in detail in para. II (1) of the petition/appeal which arrived at Karachi by sea for onward transit to Afghanistan through Pakistan by virtue of Afghan Transit Trade Agreement, 1965. The Clearing Agents of the respondent presented the invoice and other related papers before the Customs Authorities who, it is stated, inserted ' out-of-charge' (i,e, out of Customs Charge) on the Bills of Entry. Assistant Director, Inspection (Customs), however, ordered the consignments to be detained on the ground that the Letters of Credit which covered the goods of these consignments were fake and forged. These goods were later seized by the Customs Authorities under section 171 of the Customs Act vide orders dated 29-2-1992 and 25-4-1992. The respondent through his clearing and Forwarding Agents in Pakistan challenged the action of the Customs Authorities in a Constitutional Petition (C.P. 1193 of 1992) filed in the High Court of Sindh at Karachi contending, inter alia, that interference by the Customs Authorities with the goods in transit to Afghanistan was in excess of their jurisdiction. Learned Judges of the High Court allowed the Constitutional petition vide judgment dated 17-9-1992 holding, inter alia, that Afghan Transit Trade Agreement, 1965 and the Protocol annexed thereto did not require the production of Letters of Credit for clearance of Transit Trade Goods and in any case sufficient documentary evidence was produced by the respondent to show that the consignments in question were imported under valid L/Cs duly and properly certified by Afghan Bank and duly verified by Consul-General and supported by Jawaznama and as such, the import appeared to be bona fide land genuine. The authorities, therefore, had no justification to detain or confiscate the consignments. Judgment of the High Court has been assailed by the Government of Pakistan and its functionaries in this appeal by leave of the Court.
(ii) C.A. K-520 of 1993: Government of Pakistan and others v. Najib Zarab Limited and another ' M/s. Najib Zarab Limited, respondent No,1, an Afghan Import Trader placed orders for import of the tyres of Indian origin for use and consumption in Afghanistan and established Letters of Credit on 15-9-1988. Eighteen consignments containing 19690 tyres reached Karachi Port on various dates between 1-1-1990 to 27-3-1990. The consignments in question were notified as goods in transit which were to be transported to Afghanistan under Afghan Transit Trade Agreement, 1965. The Customs Authorities at Karachi, however, refused clearance of the consignments in view of a letter dated 19-12-1989 issued by the C.B.R. Whereby the transit facility under Afghan Transit Trade Agreement was discontinued in respect of the tyres for the import of which Letters of Credit though opened on or before 15-12-1988 had been subsequently amended so as to change the value, quantity, description of items and shipping period. It may be stated that the letter dated 19-12-1989 was issued with reference to an earlier letter of the C.B.R. Dated 14-1-1989 whereby the import of tyres and tubes to Afghanistan under the Afghan Transit Trade Agreement was banned with effect from 15-12-1988 with a view to stop smuggling back to Pakistan, of the tyres and tubes going to Afghanistan in transit but the ban, it was said, will not be applicable to the consignments of the tyres and tubes for which the L/Cs had been opened on or before 15-12-1988.
' Feeling aggrieved, the respondent/importer filed a Constitutional Petition (C.P. D-529 of 1990) in the High Court of Sindh, Karachi for quashment of the aforementioned letters/orders dated 14-1- 1989 and 19-12-1989. Directions were also sought to be issued to the Customs Authorities at .Karachi to "perform their functions in respect of Afghan Transit goods in terms of existing agreement and in disregard to letters dated 14-1-1989 and 19-12-1989"; to clear the consignments/goods for immediate transit to Afghanistan and for issuance of Delay/Detention Certificate. The Constitutional petition was allowed by the High Court and the impugned letters/orders were quashed vide judgment dated 24-3-1992. On appeal filed by the Government of Pakistan in this Court, the judgment of the High Court was set aside with the consent of the learned counsel for the parties and the case was remanded to the High Court with the direction to re-hear and dispose of the Constitutional petition after taking into consideration the provisions of section 129 of the Customs Act and after examining the effect of the Afghan Transit Trade Agreement dated 2-3-1965 executed between the Government of Islamic Republic of Pakistan and the Government of the Kingdom of Afghanistan for regulation of traffic in transit.
' On remand, the learned Judges of the High Court, after examining the rules of International Law on the Transit Trade facilities to land-locked countries, the provisions of the aforementioned Afghan Transit Trade Agreement of 1965 and section 129 of the Customs Act which is the relevant provision for transit of goods across Pakistan to a foreign territory held that the Transit Trade Agreement between Afghanistan and Pakistan which is still subsisting provides a guarantee of freedom of transit for goods originating from outside Pakistan across the territory of Pakistan to reach Afghanistan and it also grants to such goods exemption from payment of Customs duties, taxes, dues or charges of any kind and that the provisions of Customs Act do not deal with the goods on transit which were not really imported into Pakistan. In this view of the matter, the letters/orders dated 14-1-1989 and 19-12-1989 impugned in the Constitutional petition were quashed by the High Court vide judgment dated 17-12-1992 and Customs Authorities and the Karachi Port Trust, the respondents in the petition were directed "to perform their functions in respect of Afghan Transit Goods in terms of the treaty and Protocol and in disregard to letters dated 14-1-1989 and 19-12- 1989". They were further directed "to clear the stock involved in the petition for immediate transit to Afghanistan" and to issue delay/detention certificate. The judgment of the High Court dated 17-12- 1992 forms the subject-matter of the instant Appeal (C.A. K-520 of 1993) as also of the connected Appeal (C.A. 521 of 1993) filed by the Board of Trustees of the Port of Karachi.
(iii) C.A. 521 of 1993: Board of Trustees of Port of Karachi v. Najib Limited and 4 others ' This appeal is directed against the aforementioned judgment of the High Court of Sindh, dated 17- 12-1992 passed in Constitutional Petition (CP D-529/90). The appellant-Board feels aggrieved of the impugned judgment of the High Court only to the extent of the direction given to the Collector of Customs (Preventive), Customs House, Karachi, respondent No, 5 herein for issuing delay/detention certificate thereby depriving the appellant from levying/recovering the storage/demurrage charges.
3. Before proceeding to deal with the appeals on merits, it would be of advantage to refer to some of the provisions of The Afghan Transit Trade Agreement, 1965, hereinafter called the Agreement which was executed between the Government of Islamic Republic of Pakistan and the Government of the Kingdom of Afghanistan on 2nd March, 1965 for regulation of traffic in transit. It was stated in preamble that "The Government of the Islamic Republic of Pakistan and the Government of the Kingdom of Afghanistan being desirous of strengthening the economic ties between their two countries on a mutually advantageous basis, improving the difficulties in the movement of goods through the two countries, and having taken into consideration the present volume and future development of transit trade, have decided to conclude an agreement ' By Article I of the Agreement, the Contracting Parties undertook to grant and guarantee to each other the freedom of transit to and from their territories in accordance with the provisions of the Agreement. It was further stipulated that no distinction shall be made which is based on the flag of vessels, the place of origin, departure, entry, exit or destination or any other circumstances relating to the ownership of goods, of vessels or of other means of transport. Article II of the Agreement provides that goods including baggage, and vessels and other means of transport shall be deemed to be in transit across the territory of a Contracting party, when the passage across such territory with or without transshipment, warehousing, breaking bulk or change in the mode of transport, is only a portion of a complete journey beginning and terminating beyond the frontier of the contracting party across whose territory the traffic passes--Traffic of this nature is termed in this Agreement ' Traffic in Transit '. Article-III provided the transit routes (1) Peshawar -Torkham and vice versa. (2) Chaman-Spin Baldak and vice versa, with further provision that additional routes may be agreed between the Contracting Parties from time to time. It is also provided that the goods moving via these routes shall be entered at the proper Customs post prescribed by each party where adequate transit and other facilities shall be provided. Article IV of the Agreement laid down "No Customs duties, taxes, dues, or charges of any kind whether national, provincial or municipal regardless of their name and purposes, shall be levied on traffic in transit except charges for transportation or those commensurate with the administrative expenses entailed by traffic in transit or with the cost of services rendered". The contracting parties also agreed to adopt at points of entry and exit the procedures laid down in the Annex to the Agreement. Article V provided that the Government of Islamic Republic of Pakistan shall earmark sheds and open spaces in the Karachi Port Area, to be known as Afghan Transit Area, for the goods in transit to and from Afghanistan. Article VIII states that each Contracting party shall appoint Liaison Officers to look into the working of this Agreement, and to refer, for expeditious solution, to the appropriate authorities of their own country and to the Liaison Officer of the other country, any question arising from the operation of this Agreement. Article X of the Agreement laid down "Nothing in this Agreement shall be construed to prevent the adoption and enforcement by either Party of measures necessary to protect public morals, human, animal or plant life or health and for the security of its own territory". Article XII made a provision for resolving any difference relating to the interpretation of the Agreement by negotiation, and in the event of failure to reach a settlement, "to refer the matter to an arbitrator acceptable to both Parties, whose decision shall be binding". As per ArticleXIV, the Agreement was to remain in force for five years from the date of its coming into force with further provision that the Agreement shall be automatically renewed for a further period of five years' unless notice of termination is given in writing by either Contracting Party to the other six months before the expiration of the five years' period and thereafter, the Agreement could be terminated by either Party at any time by giving six months' notice of termination.
4. A Protocol was annexed to the Agreement containing the provisions "to regulate the transport of goods by Lorries from Peshawar to Kabul, and from Chaman to Kandhar and vice versa". Under the Protocol, the two Governments agreed to grant multiple entry visas to the transporters and also road permits to transport vehicles. It was also agreed that no taxes shall be levied on transport vehicles registered in the territory of the other country except by prior consultation and on basis of equality. Provision was also made regarding the driving licences and certificates of fitness in respect of transport vehicles covered by the Protocol. It was further provided in Article 8 of the Protocol that "The two Governments shall consult each other with a view to 'adopting necessary measures to facilitate the flow of traffic between the two countries and shall seek all possible means within their power to remove any factors which may damage the normal accomplishment of the operation fore-seen in this Protocal".
' There was also another Annex to the Agreement laying down the Customs and other procedures in respect of the goods entering Pakistan for Transit to Afghanistan. The said Annex provided the following procedure for the transit of goods from Karachi Port to Afghanistan:-- ' On arrival of the goods, the owner or his agent shall at the time of entering them at the Custom House declare that the goods are intended for such transit and furnish in quadruplicate an invoice of the goods so declared in the prescribed form specifying therein by which of the two authorised routes, the goods are intended to be transported.
' On compliance of the above provisions, the documents will be completed on the basis of exemption from duty, sales tax and import trade control regulations. Therefore, the goods will be sealed with Customs seal and removed from the Karachi Port Trust Transit Sheds, under Customs supervision, to the Afghan Transit Sheds specially set apart for the purpose of Afghan Transit goods under Customs physical control. The goods will then be loaded under Customs supervision into Railway wagons, exclusively provided for in-transit goods, which will be sealed by the Railway. In the case of open wagons loading heavy articles such as cars, trucks, machinery etc., scaling may be dispensed with.
' The original copy of the invoice duly checked and completed by the Customs will be handed over to the owner or his agent and the duplicate and triplicate copies will be dispatched to the Afghan Customs at Spin Baldacci. The Afghan Customs will retain the duplicate and will return the triplicate copy of the Custom House of dispatch in Pakistan with endorsement certifying the arrival of the goods. As regards the goods dispatched by Peshawar-Torkaham route from Karachi, Customs House will dispatch the duplicate and triplicate copies of the invoices to the Customs Officer at. Peshawar who shall retain the duplicate and forward the triplicate copy to the Customs Officer at Torkham. On arrival of the goods at Pehsawar, they will be carried to a transit shed or area under Customs Control or transferred directly to a road-transport under Customs supervision.
Road Transport in which the goods are carried forward to Afghanistan will where possible, be sealed with the Customs seal. On arrival at Torkham, the goods must be presented to the Customs Officer along with the duplicate copy of the invoice for inspection and final clearance where after he will return the duplicate to the Customs Officer at Peshawar.
' In the case of goods entering Pakistan at Lahore, the procedure will be the same as detailed above in respect of goods arriving through Karachi so far as applicable.
5. Reference at this stage may also be made to section 129 of the. Customs Act, 1969 which is the relevant provision for transit of goods across Pakistan to a foreign territory. It reads as under:- ' 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.
6. We first take up C.A. K-520 Hof 1993 as the arguments were mainly addressed in this appeal. As stated above, this appeal arises from at judgment of the High Court whereby the two letters of the C.B.R., dated 14th January, 1989 and 19th December, 1989 which sought to exclude the types from Pak-Afghan Transit Trade were quashed and the Customs Authorities and the Chairman of Karachi Port Trust were directed to perform their functions in respect of Afghan Transit Goods in terms of the Afghan Transit Trade Agreement and in disregard of the two impugned letters. Before proceeding further, it would be appropriate to refer to the two letters in question in some detail. The first letter dated 14th January, 1989 proceeded to state, "In view of the mounting complaints of smuggling back the Pakistan, of type and tubes going to Afghanistan in transit, the Government of Pakistan has decided to ban the import of types by Kabul Regime under the Transit Trade Agreement with effect from 15-12-1988". It was, however, clarified in pars 2 of the letter that "the ban will not be applicable to the consignments of types and tubes for which the L/Cs have been opened on or before 15th December, 1988". It appears that with a view to circumvent this decision, some parties were reported to be effecting amendments in respect of value, quantity, items and shipping period in their Letters of Credit opened before 15-12-1988. The Central Board of Revenue, therefore, issued the second letter on 19th December, 1989 stating that "In order to ensure the correct implementation of the decision, transit facility shall not be allowed in respect of types for which the Letters of Credit were opened on or before 15-12-1988, if any subsequent amendment has been made in these Letters of Credit in terms of description of items, quantity, value or extension in the Shipping period". Reference may also pertinently be made to two other documents which the Customs Authorities referred to in their paradise comments submitted in the High Court and were noticed in the impugned judgment. First is the letter of the C.B.R., dated 18th July, 1990 addressed to the Collector of Customs (Preventive), Custom House, Karachi saying that "The detained consignments may be allowed transit facilities irrespective of the fact whether any amendments have been made in the Letters of Credit opened prior to 15-12-1988". It was further directed in this letter that "The Custom House should immediately issue a Public Notice informing that import of types, in transit shall not be allowed, irrespective of any amendments whatsoever in the L.Cs. All imports made after the issue of the Notice by the Collector shall be treated as contravention imports, in terms of section 156 (65) of Customs Act, 1969". Second document is the Public Notice, dated 23rd July, 1990 issued by Custom House, Karachi in pursuance of the direction contained in C.B.R.'s letter dated 18-7-1990. By this Public Notice, all concerned were informed that henceforth, no import of types and tubes in transit to Afghanistan shall be allowed under Pak- Afghan Transit Trade Agreement irrespective of date of opening of L.Cs. And that all the imports of such goods made after the issuance of the public notice shall be treated as contravention imports in terms of section 156 (1) (64) of the Customs Act, 1969 and liable to confiscation under the provisions of the said Act.
7. Learned Deputy Attorney-General appearing for the appellants sought to justify the aforementioned letters/documents imposing ban/restriction on the import of tyres in transit to Afghanistan by relying on Article X of the Afghan Transit Trade Agreement which according to him reserved the power to either party to the Agreement to adopt and enforce such measures as are necessary to protect the economic interests of its country. In the submission of the learned Deputy Attorney-General, the tyres and tubes imported by Afghan Traders for consumption in their country were far in excess of their needs. They were not consumed there and were smuggled back into Pakistan with disastrous effects on the economy of this country. According to the learned Deputy Attorney-General, the transit facility extended to Afghanistan by the Transit Trade Agreement was being grossly misused to the grave prejudice to Pakistan and, the impugned action was taken by the authorities to check the large scale smuggling of tyres from Afghanistan into Pakistan. It was vehemently contended by the learned counsel that keeping in view 1000 miles long border with Afghanistan coupled with large tribal territory in-between, it was not possible for Pakistan to prevent the smuggling activities of Afghan nationals. The precise contention of the learned Deputy Attorney-General was that the impugned ban on the import of types in transit to Afghanistan was within the purview of and permissible by Article X of the Transit Agreement afore-referred. Reliance was also placed on section 129 of the Customs Act, 1969 and the Customs Export Transit Rules, 1974 to contend that the Customs Authorities were fully competent to disallow the types imported by the respondent/importer to be transited to Afghanistan notwithstanding the provisions of Transit Agreement.
8. Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent/importer, on the other hand, contended that since the tyres were duly imported by his client for use in Afghanistan and were declared/notified as goods intended for transit to Afghanistan, they were required to be transited to their destination in accordance with the procedure laid down in the Afghan Transit Agreement and the Annexures thereto which guaranteed free and unhampered flow of such goods to Afghanistan. It was submitted that the letters/orders issued by the C.B.R. And Customs Authorities disallowing the transit of the tyres in question and imposing ban on their import for transit to Afghanistan were in violation of Afghan Transit Trade Agreement duly executed between two Governments. It was contended by the learned counsel that the impugned action of the C.B.R./Customs Authorities had the effect of nullifying the Transit Agreement qua the types/tubes imported by Afghan nationals for use and consumption in Afghanistan which they had no lawful authority to do. According to the, learned counsel, the types in question having bean duly imported by the respondent/importer for use in Afghanistan, the Customs Authorities had no jurisdiction in the matter except to allow them to be transited to Afghanistan without payment of any duties as provided under section 129 of the Customs Act, 1969. It was further contended by the learned counsel that according to the Rules of Business, 1973, the import and export of goods and the transit trade lay within the exclusive domain of the Ministry of Commerce, Government of Pakistan and that the C.B.R. An the Customs Authorities had no jurisdiction in such matters. Learned counsel pointed out that even the Ministry of Commerce (Import Trade Control) in its Notification, dated the 29th June, 1988 prohibiting the import of certain goods excepted the goods in transshipment to a country outside Pakistan/goods in transit to Afghanistan. Learned counsel controverting the submission of the learned Deputy Attorney-General that the tyres imported by Afghan nationals were in excess of their requirements and were smuggled back to Pakistan pointed out that the Consul-General of Afghanistan in his letter dated 28-6-1992 and the Afghan Embassy in its letter dated 6-7-1992 have stated that there is no manufacturing unit of types and tubes in Afghanistan and all the needs of local consumption were met through imports and that the consignments detained by the Customs Authorities of Pakistan were imported for use and consumption in Afghanistan. Learned counsel further argued and argued vehemently that the impugned actions of the appellants did not fall within the purview of Article X of the Transit Agreement as the alleged smuggling of the types back into Pakistan could not be said to have any nexus with the transit facility and in any case, the alleged smuggling caused no threat to the security of Pakistan's territory. Learned counsel submitted that the problem of smuggling, if at all relatable to the operation of Transit Agreement could have been resolved by taking recourse to negotiations and/or arbitration as provided under Article XII of the Transit Agreement but it did not provide any valid justification for taking away the transit facility or imposing any restriction or ban on the import itself which was allowed by the Transit Agreement. Learned counsel referred to a letter of the Ministry of Commerce, Government of Pakistan dated 22-7-1992 wherein unilateral restriction imposed by the Customs Authorities was held to be in contravention of Article XII of the Transit Agreement which stipulated that the disputes shall be settled through negotiation or through anarbitration in case of failure. Of the negotiation. It was argued by the learned counsel that the ban/restriction imposed on the import of types and their transit to Afghanistan was not justified either by any provision of the Transit Agreement or by any law.
9. From the afore-noted resume of the factual background and the respective contentions raised by the learned Deputy Attorney-General and the learned counsel appearing for the respondent- importer, the question which arises for consideration is whether the C.B.R. And/or the Collector of Customs could lawfully ban/disallow import of types by Afghan nationals under the Afghan Transit Trade Agreement and refuse the facility of transit through the territory of Pakistan in respect of such types during the subsistence of the said Agreement. This question when examined on a purely legal and jurisdictional plan, its answer is bound to be in the negative. We quite agree with the view taken by the learned Judges of the High Court that keeping in view the background of the Transit Agreement and the fact that Afghanistan is a land-locked country, the goods imported by Afghan nationals from other countries for use and consumption in Afghanistan could not be said to have been imported into Pakistan merely because they crossed the Custom barrier and entered into Pakistan, through to be transited to their destination viz Afghanistan. Such goods, in fact, are goods in transit to be dealt with and transshipped to Afghanistan in accordance with the Transit Agreement and the Protocol appended thereto. Customs law relating to the importation would not, therefore, be applicable to them. Assuming, however, for the sake of argument that such goods could be construed to have been imported into Pakistan under the Customs Act and that section 16 of the said Act could be invoked which gives power to prohibit or restrict the importation and exportation of goods (though in the earlier round of litigation, both the parties had conceded in this Court that section 16 of the Customs Act was not applicable to the present case and the cases of goods in transit were governed by section 129 of the said Act), still the impugned orders/letters could not be clothed with lawful authority for two reasons. Firstly, the power under section 16 was conferred on the Federal Government which could not be exercised by subordinate authorities like Collector of Customs who in the instant case had issued the impugned public notice purporting to impose the ban on the import of types and secondly the power was to be exercised by a Notification in the official Gazette which requirement was not complied with in the present case.
10. Looked at from yet, another angle, the Customs Authorities had no jurisdiction in the matter at all. They could neither ban the import of the goods in question nor refuse to allow them to be transited to their destination. Under the Rules of Business, 1973 made in exercise of the powers conferred by the Constitution, business regarding the import and export across Customs frontiers including treaties, agreements, protocols and conventions with other countries and international agencies bearing on trade and commerce and the Transit Trade has been allocated to the Ministry of Commerce, which has exclusive jurisdiction in such matters. The goods in question were undoubtedly goods in Transit and therefore, to deal with them was the exclusive function of the Commerce Ministry. It is significant that the Afghan Transit Trade Agreement was concluded by the Government of Pakistan through this Ministry and it was signed by the then Minister of Commerce on behalf of the Government of Pakistan. That being so, only the Ministry of Commerce, Government of Pakistan could take appropriate action and that, too, in terms of the Transit Agreement to prevent the alleged smuggling back of the types into Pakistan. Needless to observe that the import of goods covered by the Transit Agreement cannot possibly be prohibited unilaterally even by the Government of Pakistan by passing an order under section 3 (1) of the Imports and Exports (Control) Act XXXIX of 1950 which empowers the Federal Government to prohibit, restrict or otherwise control the import and export of goods. Hi fact, as rightly pointed out by the learned counsel for the respondent/importer, the Notification, dated 29th June, 1988 issued by the Ministry of Commerce (Import Trade Control) under section 3 (1) of the said Act, prohibiting the import of certain goods specified in Schedule II thereof made an exception for the goods in transshipment to a country outside Pakistan/the goods in transit to Afghanistan. The impugned letters dated 14-1-1989 and 19-12-1989 and the subsequent public notice dated 23-7-1990 are ex facie repugnant to the aforementioned Notification, dated 29th June, 1988.
11. There is no denying the fact that the impugned letters issued by the C.B.R. And the Public Notice issued by the Collector of Customs had the effect of nullifying the Transit Agreement qua the goods in question. The Deputy Attorney-General, however, sought to justify this action by contending that since the transit facility extended to Afghanistan under the Transit Agreement was being misused and the tyres imported for the alleged use in Afghanistan were smuggled back to Pakistan on a massive scale, the authorities took the impugend action to protect the economic interests of Pakistan. Such an action, according to the learned Deputy Attorney-General, was permissible under Article X of the Transit Agreement which enables either party to the Agreement to adopt and enforce measures necessary to protect public morals, human, animal or plant life or health and for the security of its own territory. It is not the case of the appellants that the impugned action taken by them was necessary to protect public morals, human, animal or plant life or health.
Their contention in the High Court as also before us was that the impugned measures (imposition of ban on the import of tyres and disallowing the transit facility) were necessary for the economic security of the country. We are not persuaded to accept this contention because the words used in Article X of the Transit Agreement are "for the security of its own territory" which can by no stretch of reasoning or logic be construed as economic security of the country. Territorial security/integrity has a definite connotation which could not be said to have been jeopardized/threatened by the alleged smuggling of tyres into Pakistan. The problem of smuggling could well be solved by adopting and enforcing strict and effective anti-smuggling measures. The learned Judges of the High Court were right in repelling the contention of the appellants with the observation, "If the grievance of the respondents was, as it seems to have been, that the tyres and tubes after entering into Afghanistan illegally re-entered into Pakistan and are Mixed up with mass of other tyres and tubes, then other remedies might be open to the respondents". In our considered view, the alleged smuggling of the tyres into Pakistan could not furnish any valid justification to the appellants to unilaterally take away the facility of transit or to impose any restriction on the duty-free import itself which was guaranteed by the Transit Agreement. Customs Authorities should have proceeded under Article VIII of the Transit Agreement or recourse should have been taken to the machinery provided under Article XII of the Agreement which provides for negotiation and in the event of failure of negotiations, to refer the matter to an arbitrator acceptable to both the parties whose decision would be binding on them. Failing to find any solution through this mechanism, the Government of Pakistan could terminate the Transit Agreement which is terminable at the instance of either party at any time after giving six months' notice of termination and re-negotiate fresh terms of the Transit Agreement. In fact, during the course of hearing, we were informed that the meetings between the parties were already being held and the parleys were in progress for re- rotating/re-drafting the Transit Agreement. This appears to be* the only lawful and reasonable course in the facts and circumstances of the case. Needless to observe that so long as the Afghan Transit Trade Agreement of the year 1965 is subsisting, the appellants had no option but to allow the goods in transit to be transited to Afghanistan in accordance with the terms of the said Agreement and the procedure laid down in the Protocol and the Annex appended therewith.
Section 129 of the Customs Act also requires the Customs Authorities to allow the goods in transit to be transmitted to the country of their destination without payment of any duties which are otherwise chargeable thereon. We have not been shown any provision in the Customs Export Transit Rules to show that the Customs Authorities had any jurisdiction to impose ban on the import of goods intended to be transited to another country across the territory of Pakistan or to refuse to allow the transit of such goods to that country.
12. In the aforesaid view of the matter, learned Judges of the High Court were perfectly justified in quashing the letters/orders impugned in the Constitutional petition and directing the appellants to perform their functions in respect of Afghan transit goods in terms of the Transit Agreement and the Protocol annexed thereto. This appeal (C.A. K-520/93) has no merit and the same is accordingly dismissed.
13. Coming now to the connected appeal (C.A. 521/93) filed by the Board of Trustees of Karachi Port.
As noted above, the only grievance of the appellant Board is with respect to the direction given in the impugned judgment of the High Court to the Collector of Customs, Karachi to issue the Delay/Detention Certificate which, it is claimed, would preclude the appellant from levying/recovering the demurrage charges thus causing huge financial loss to the Port Trust.
' Learned counsel appearing for the appellant, in the first instance, sought to contend that there was no averment made in the Constitutional petition in the High Court with respect to Delay/Detention Certificate with the result that the appellant had no opportunity to meet the same.
Grievance made by the learned counsel was that the appellant was deprived of its legitimate revenue involving substantial amount without having an opportunity to show that no case was made out for the issuance of Delay/Detention Certificate. The contention appears to be misconceived as we find on perusal of the Constitutional petition that the respondent/importer had made a specific grievance on ground (J) that "On account of the illegal and unauthorised refusal to allow transit facility, a huge amount of Rs,6,05,679 has accumulated as demurrage. A further demurrage at the rate of about Rs,1,000 is being charged". Not only that; the writ-petitioner had also sought a direction from the High Court for issuance of Delay/Detentiop Certificate. The appellant cannot thus make legitimate grievance that it had no notice or, opportunity to rebut the claim/relief regarding the issuance of Delay/Detention Certificate.
' Learned counsel for the appellant next contended that the impugned action of the Customs Authorities having been declared as without lawful authority, the appellant could not be penalized for the fault of the Customs Authorities. It was contended by the learned counsel that Delay/Detention Certificate can only be issued by the Customs Authorities when clearance of the consignments is delayed on account of unavoidable requirements of Customs procedure or the delay in clearance of the goods is on account of unavoidable requirements of the Customs, for the assessm ent of the goods. According to the learned counsel, none of these conditions were available in the present case and, therefore, the impugned direction of the High Court was wholly uncalled for. In support of his submission, learned counsel drew our attention to paras. 37 and 38 of the Karachi Port Trust Manual for the Traffic Department.
' Para. 37 which deals with Detention Slips provides that: "The Port Trust Additional Storage Charges are recovered after allowing 5 working days from the date on which the pkg has been examined by the Customs, but when the clearance of such pkg is delayed beyond the free period on account of unavoidable requirements of Customs procedure a Detention Slip is issued by the Customs on demand of the importers/consignees for the period the package is detained after Custom's Detention Slip which shows the date of examination of the packages and date of completion of the B/E or the signing of Out of Charge entitles the importers/consignees to a waiver of the above Port Trust Additional Storage Charges for the period mentioned in the Detention Slip".
' Para. 38 which provides for the issuance of Delay Certificate so far as relevant reads as under:- "(a) If the delay in clearance of the goods is on account of unavoidable requirements of the Customs, for the assessm ent of the goods, the Customs on completion of such formalities will issue the Delay Certificates to the importers/consignees, as prescribed under Notes 8 and 9 to Table II, Scale A of the K.P.T. Scale of Tolls, Dues, Rates and Charges. These Delay Certificates shall be issued under the signature of the Assistant Collectors of Customs. The Delay Certificates shall entitle the importers/consignees to a concession in the levy of storage charges which will be levied at the basis rate of storage per tonnes viz. Rs,10 per day for the goods for which Delay Certificate has been issued and for the entire period specified therein and three working days thereafter whereafter normal rate of storage will apply. --- (f)Delay Certificates shall be issued by the Customs for the following reasons only:-- (g)Delay in the completion of the B/E due to the Customs Officer calling for documents other than those which are/or should be immediately available.
(ii) Delay due to enquiries made by the Custom House to obtain information necessary for the completion of the B/E.
(iii) The goods reported for offences, but where it was finally decided that no offence was committed.
(iv) When the completion of the B/E has to await the results of the test of samples for assessment.
(v) The other reasons arising out of the passing of the Bill of Entry by the Custom House not covered by the above four reasons and acceptable to the K.P.T. At their discretion.
' Note I. --- ' Note II.
' Note III. Thee-period for which the' Delay Certificate issued will run from the date of presentation of Bill of Entry in the Custom House to the date of submission of Bill of Entry unless it is felt that the part of the delay is due to the negligence of the importer when such period will be excluded from the period from which Delay Certificate is issued.
(g)
(h)
On going through the aforenoted provisions of K.P.T. Manual coupled with the fact that the goods in question were illegally and wrongfully not released and were not allowed to be transited to Afghanistan by the Customs Authorities, we are satisfied that the impugned direction given by the High Court to the Collector of Customs to issue the Delay/Detention Certificate was quite just and fair which does not call for any interference by this Court. This appeal (C.A. 521/93), too, is accordingly dismissed.
14. The third appeal (C.A. 361/93) also does not merit any different fate. It is stated to be barred by 36 days and no good reason has been given by the appellants for coadunation of delay. The ground taken in their application- for condensation of delay is of routine type namely that "the matter remained in circulation for permission to file petitioner leave to appeal before this Humble Court" and that the time was consumed in office routine which was beyond the control of the appellants. Such a plea has never been accepted by this court as a valid ground for condensation of delay. Refer Commissioner of Income Tax v. H Pir Ahmad Khan (1981 SCM R 37) wherein it was held "The time said to have been spent during which the various authorities were examining the matter with 1 a view to decide whether an appeal should or should not be filed cannot be excused.
This Court has repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger than those possessed by ordinary litigants. If in spite of these facilities the Government cannot comply with the requirement of the law of limitation, then it is for it to take steps to have that law changed". It is also settled law that the litigant seeking coadunation of delay must explain the delay of each day. The excuse that the matter got K delayed because of its having remained under examination at different departmental levels is not a proper and satisfactory explanation for the delay of 36 days. The appeal is, therefore, liable to be dismissed on the ground of being limitation-barred.
15. Even on merits, the view taken by the learned Judges in the High Court is not shown to suffer from any legal infirmity warranting interference by this Court. As noted above, the consignments of goods imported by respondent No,1 in this appeal for owned transit to Afghanistan under the Afghan Transit Trade Agreement were detained and confiscated by the Customs Authorities on the ground that 'letters of credit' which covered L these consignments were fake and forged. The learned Judges in the High Court set aside .The orders of the Customs Authorities on two grounds.
First ground was that the Transit Agreement and the Annexures thereto did not require the production of 'letters of credit' for clearance of transit goods by the Customs Authorities and that the only document required to be produced at the time of arrival of the goods was the 'invoice'.
Secondly, the learned Judges were satisfied on examining the documents produced before them that the 'letters of credit' in dispute were genuine and were properly certified by Afghan Bank and duly verified by Consul-General and, therefore, "the. Import appears to be bona fide and genuine".
Learned Deputy Attorney-General could not point out any fault in these findings. That being so, the learned Judges were right in holding that the appellants had no justification whatsoever to detain or confiscate the consignments imported by respondent No, 1 . The appeal (C.A. 361/93) thus merits dismissal even on merits.
16. In view of what has been said above, all the three appeals are dismissed but with no order as to costs.
Appeals dismissed.
1996 SC 11/41 R 747 [Supreme Court of Pakistan] Present: Zia Mahmood Mirza and Raja Afrasiab Khan, JJ KALLA KHAN---Petitioner versus YASIN through his Legal Heirs---Respondent Civil Petition No, 162-L of 1994, decided on 13th June, 1995.
(On appeal from the judgment/order dated 22-12-1993 of the Lahore High Court, Lahore passed in R.S.A. No, 329 of 1974), Punjab Pre-emption Act (I of 1913)--- ----S. 15---Constitution of Pakistan (1973), Art. 185 (3)---Finding of fact---Non-interference by Supreme Court---Suit for pre-emption-Plaintiff s claim that he was the son of vendor was not accepted by Trial Court resulting in dismissal of his suit-First Appellate and High Court, on basis of evidence, however, concurred that plaintiff was proved to be the son of vendor as he was not questioned in cross-examination by defendant, and therefore, such statement would be deemed to have been admitted--No infirmity in the judgment of High Court had been pointed out whereby it had affirmed judgment of First Appellate Court---Issue of relationship of plaintiff with vendor which was found in his favour by concurrent judgments of Courts below was essentially a question of fact and such findings did not suffer from any misreading or non-reading of evidence---Leave to appeal was refused in circumstances. [p. 748] A Hafiz Tariq Nasim, Advocate Supreme Court for Petitioner. Nemo for Respondent.
Date of hearing: 13th June, 1995.
' ZIA MAHMOOD MIRZA, J.---Petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 22-12-1993 dismissing his appeal (RSA No, 329 of 1974).
2. Facts relevant for the disposal of this petition, briefly stated, are that Muhammad son of Bakhra sold his land measuring 46 Canals to the present petitioner for a sum of Rs,13,800 vide Mutation No, 1538 sanctioned on 31-3-1970. Vendor's son Yasin (who has since died and is represented by his legal heirs) pre-empted the sale by filing a suit claiming superior pre-emptive right on the ground that he was the real son of the vendor; a co-sharer in the joint Khata and an owner of the estate.
The suit was contested by the petitioner. Learned trial Court after framing necessary issues arising from the pleadings of the parties and recording the evidence adduced by the parties dismissed the suit on 21-2-1974 holding that the plaintiff failed to prove his relationship with the vendor. The plaintiff preferred an appeal which was allowed by the learned District Judge who vide his judgment dated 11-7-1974 decreed the plaintiff's suit holding on the basis of evidence on record particularly the birth entry of the plaintiff's daughter Exh.P5 wherein the name of the plaintiff's father was also mentioned that "the appellant is son of Muhammad vendor". Issue No,3 regarding superior right of pre-emption was accordingly decided in favour of the plaintiff.
3. Aggrieved of the judgment and decree of the learned District Judge, petitioner preferred a second appeal in the High Court which, as stated above, was dismissed by a learned Single Judge of Lahore High Court vide the impugned judgment. It appears that the only point raised by the Petitioner in the High Court was the relationship of the plaintiff with the vendor. The learned. Judge after discussing the evidence led by the parties upheld the finding of the lower Appellate Court regarding the relationship of the plaintiff with the vendor. It was noted by the learned Judge that the plaintiff appearing as his own witness had deposed that he was the son of the vendor but he was not cross-examined on this point nor was he given any suggestion that he was the son of one Bhora as was alleged by the petitioner. According to the learned Judge "Absence of clear cross- examination on the point of relationship asserted in examination-in-chief led to a clear inference that the defendant did not question the correctness of the plaintiff's assertion that he was son of Muhammad-vendor of the land". It was observed by the learned Judge that "Exh. P-5 also gave support to the relationship of the plaintiff to the vendor. On record, there was preponderance of evidence to prove plaintiff's relationship with the vendor".
4. We have heard the learned counsel for the petitioner. He has not been able to point out any infirmity in the findings recorded by the learned District Judge and upheld by the High Court which findings as noted hereinabove were supported by the evidence on record. It may pertinently be observed that the issue of relationship of the plaintiff with the vendor was purely one of fact which was found in his favour by the 'learned District Judge as also by the learned Judge of the High Court and the findings of the two learned Courts have not been shown to suffer from any misreading or non-reading of evidence. That being so, no case is made out for interference by this Court. This petition is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.