JUDGMENT: SYED HAIDER ALI PIRZADA, J.-l. The petitioners in the above petition have prayed for the following reliefs:-- "(a) quash the letters/order dated 14-1-1989 and 19-12-1989 and the relevant proceedings/orders of the respondent No. 2 on which these are based and even of respondent No. 1 if such orders originate from it;
(b) direct the respondents No. 3 to 5 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;
(c) further direct respondents to clear the stock involved in this petition for immediate transit to Afghanistan;
(d) grant any other more appropriate relief in the circumstances of the case;
(e) direct issuance of delay detention certificates; and
(f) grant costs."
2. The facts leading to the filing of the above petition are that the petitioners in the course of their business placed orders for import of tyres of the Indian origin and established Letters of Credit on 15.9.1988 for use and consumption in Afghanistan. About 18 consignments of such tyres consisting of 19,690 reached Karachi Port on various dates between 1.1.1990 to 27.3.1990. The balance quantity of tyres are reported to be ready for shipment. The details of the consignments with the dates of Bills of Lading, 1CM and Bills of Entry are given in para 1 of the petition. All the said consignments were imported for use in Afghanistan and were notified as the goods in transit. It is the case of the petitioners that Customs Authorities at Karachi, however, refused clearance of the said consignments on the basis of a letter dated 19th December, 1989 allegedly received at the Customs House, Karachi on 1.1.1990 whereby the transit facility in respect of tyres for which letters of credit were opened on or before 15.12.1988 but had subsequently been amended, was discontinued.
The letter dated 19.12.1989 was apparently issued in order to give effect to an earlier letter dated 14.1.1989 of the Central Board of Revenue purportedly issued in order to stop Smuggling back to Pakistan of tyres and tubes going to Afghanistan in transit. The petitioners have filed the above petition and prayed to quash the letters/orders dated 14.1.1989 and 19.12.1989.
3. The respondents filed parawise comments contending that the balance quantity of tyres ready for shipment abroad, transit facility pertaining to tyres could not be allowed in view of public notice issued by the Customs House, Karachi dated 27.7.1990 vide No. SI/Misc./16/90-TG in pursuance of Board's letter C. No. 3(11) Lrp/83 dated 18.7.1990. It is contended on behalf of the respondents that the Government after considering the mis-use of Afghan transit goods smuggled from Afghanistan into Pakistan, imposed the present condition of withdrawing transit facility of tyres.
4. We had allowed the petition and quashed the impugned letter/orders dated 14.1.1989 and 19.12.1989 vide judgment dated 24.3.1992. The Government of Pakistan tand 3 others being aggrieved against the above judgment, filed Petition for Leave to Appeal before the honourable Supreme Court. The Petition for Leave to Appeal was converted into regular appeal and was disposed of in terms of the following order:- "The learned Deputy Attorney General at the hearing of appeal contended before us that Section I6 of the Customs Act was not applicable in the present case as the cases of goods in transit to Afghanistan were governed under Section 129 of the Customs Act. Mr. Khalid Ishaque, the learned counsel for the private respondents conceded that Section I6 of the Customs Act was not applicable in the instant case and as such the order of the High Court of Sind declaring the 2 impugned letters as not valid and without lawful authority being violative of Section I6 of the Customs Act, is not sustainable in law. Mr. Khalid Ishaque, the learned counsel for respondent, however, contended that the learned Judges of the High Court neither examined the merits of case in the light of Section 129 of the Customs Act nor they considered the effect of the Afghan Trans'.
Trade Agreement, 1965 dated ,2.3.1965 executed between the Government of Islamic Republic of Pakistan and Government of Kingdom of Afghanistan for regulation of traffic in transit.
Mr. Ikram Ahmed Ansari, the learned Deputy Attorney General conceded to the position that the learned Judges of the High Court neither considered the effect of Section 129 of the Customs Act nor took into consideration the terms of the treaty agreement between the Government of Islamic Republic of Pakistan and Government of Kingdom of Afghanistan.
Both the learned counsel agree that the case may be remanded to the High Court to re-determine the validity of the 2 letters in the above petition in the light of the above submissions of the parties.
We, accordingly, by consent, accept this appeal, set aside the order of High Court dated 24.3.1992 and remand the case with the direction that the petition may be re-heard and disposed of in terms of the above observations".
5. We have heard Mr. Khalid M. Ishaque, learned counsel appearing for the petitioners in support of petition, Mr. Ikram Ahmed Ansari, learned D.A.G, appearing for the respondents No. 1 to 4 and Mr. Zahiruddin Khan, learned counsel appearing for the respondent No. 4.
6. We shall first examine if there is any mandate of international law or if the rules of international law afford us any guidance and if such mandate or guidance is perceptive under Pakistan Law.
Two questions arise for our consideration. Firstly, whether international law is, of its own force, drawn into the law of the land without the aid of a municipal law and, secondly, whether so drawn, it overrides municipal law in case of conflict. It has been said in England that there are to schools of thought, one school of thought propounding the doctrine of incorporation and the other, the doctrine of transformation (per Lord Denning M.R. In Trendtex Trading Corp. Versus Central Bank of Nigeria ((1977) 1 AER 881). According to the one, rules of international law are incorporated into the law of the land automatically and considered to be part of the law of the land unless in conflict with an Act of Parliament. According to the other, rules of international law are not part of the law of the land unless already so by an Act of Parliament, judicial decision or long established custom.'
According to the one, whenever the rules of International law changed, they would resuIt in change of the law of the land along with them, without the aid of an Act of Parliament. According to the other, no such change would occur unless those principles are accepted and adopted by the domestic law. Lord Denning who had once accepted the transformation doctrine without question, later veered round to express a preference for the doctrine of incorporation and explained how Courts were justified in applying modern rules of international law when old rules of international law changed. In fact, the doctrine of incorporation, it appears, was accepted in England long before Lord Denning did so. Lord Denning himself referred to some of old cases. In West Rand Central Gold Mining Co. Versus the King (1905)2 KB 391 = Time Law Reports Volume XXI (1904-1095) 562, the Court said:-- "It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law and as such will he acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant."
7. Hersch Lauterpacht in International Law Collected Papers (General Works) refers to the position in Germany, France, Belgium and Switzerland. He also referred to German cases in this connection and quoted what a German Court said to meet an argument that the role of customary internal law conflicted with Article 24 of the German Code of Civil Procedure. The Court had said (page 223) that "The legislature of the German Reich did not and could not intend any violation of generally recognized rules of international law, when enacting Article 24 of the Code of Civil Procedure".
Lauterpacht refers to another German case where the argument that there ought not be a direct recourse to the law of nations except insofar as there has been formed a German Customary Law, was rejected with the statement (page 223) that "the contention of the creditor that international law is applicable only insofar as it has been adopted by German customary law, lacks foundation .In Law.
Such a Legal maxim would, moreover, if generally applied, lead to the untenable resuIt that in the intercourse of nations with one another, there would obtain not a uniform system-international law-but a series of more or less diverse municipal laws". He summarises the position at page 227 as under:- "While it is clear that international law may and does at directly within the State, it is equally clear that as a rule that direct operation of international law is within the State subject to the overriding authority of municipal law. Courts must apply statutes even if they conflict with international law.
The supermacy of international law lasts, pro foro intemo, only so long as the State does not expressly and unequivocally derogate from it. When it thus prescribes a departure from international law, conventional or customary, judges are confronted with a conflict of international law and municipal law and, being organs appointed by the Stale they are compelled to apply the latter."
8. ,We are of the view that nations must march with the international community and the municipal law must respect rules of international law, even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted Legislatures in making laws, may not be subjected to external rules except to the extent legitimately accepted by the constituted Legislatures themselves. The doctrine of incorporation also recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament, comity of nations and municipal law must prevail in case of conflict. National Courts cannot say "yes" if Parliament has said "no" to a principle of international law. National Courts will endorse international law but not if it conflicts with national law. National Courts being organs of the National State and not organs of international law, must perforce apply national law if international law conflicts with it. But the courts are under an obligation within the legitimate limits, so to interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law. But if conflict is inevitable, the latter must yield.
9. The proposition has been well established. In Bloxam V Favre (1883)8 P. D 101 Sir James Hannen approved the statement of Sir Lenon Maxwell on interpretation of statutes (page 107) that "every statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law."
Latham C.J. In Politics V. The CommonweaIth, 70 CLR 60 aid: "It must be held that Legislation otherwise within the power of the CommonweaIth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe CommonweaIth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the CommonweaIth Parliament to legislate in breach of international law, but is a question whether in fact it has done so."
10. In Halsbury's Laws of England (4th Edition) Volume 44, para 908 at page 559, it is stated that "there is a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits established by the common consent of nations, and, provided their language admits, statutes are to be interpreted so as not to be inconsistent with the comity of nations or with the established principles of international law". But this principle applies only where there is an ambiguity and must give way before a clearly expressed intention. It is further stated that "if statutory enactments are clear in meaning, they must be construed according to their meaning even though they are contrary to the comity of nations or international law".
11. The observations show that the Court was only concerned with a principle of interpretation, but, by implication, it may be possible to say that the Court preferred the doctrine of incorporation; otherwise the question of interpretation would not truly arise.
12. It appears that "the leading authorities on International Law have expressed divergent views on the question of the transit rights of land-locked countries. While one group of writers such as Sibert, Scelle and others have held the view that these countries have an inherent right of transit across neighbouring countries, other equally eminent authorities, such as McNair and Hyde have held the view that these rights are not principles recognized by international law but arrangements made by sovereign states".
13. The resuIt of. The lack of unanimity has been that the land-locked countries have to rely on bilateral, regional or muIti-lateral agreements for the recognition of their rights. The very existence of innumerable bilateral treaties, while on the one hand it raises a presumption of the existence of a customary right of transit, on the other, it indicates the dependence of the right on agreement.
The discontenting situation led to attempts by nations to codify the rules relating to transit trade.
The earliest attempt was the convention on the Freedom of Transit known generally as the Barcelona Convention. The second attempt was the convention on the High Seas, 1958. The third is the 1965 Convention on Transit Trade of Land-locked States. The most recent is the United Nations Convention on the Law of Sea signed at Montiago Bay on 10th December 1982.
14. The 1965 Convention on Transit Trade of Land-locked States is the convention on the subject and as both Pakistan and Afghanistan have signed the convention, it may be useful to refer to it in some detail. The convention was the resuIt of Resolution of the United Nations General Assembly which, "recognising the need of Land-locked countries for adequate transit facilities in promoting international trade", invited "the Governments of Member States to give full recognition to the needs of Land-locked Member States in the matter of transit trade and, therefore, to accord them adequate facilities in terms of international law and practice in this regard, bearing in mind the future requirements resuIting from the economic development of the land-locked countries".
15. Article 1(a) of the Convention defines the term 'Land-locked State" which means "a State which has no sea-coast". Article 1(c) of the Convention defines the term "Traffic in transit" which means "transit of persons, baggage, goods and means of transport across the territory of one or more transit states, when the passage across such territory with or without trans-shipment, warehousing, breaking bulk or change in the mode of transport, is only a portion of a complete journey which begins or terminates within the territory of the land-locked State". Article 1(b) defines "Transit State" which means "a State, with or without a sea-cost, situated between a land-locked State", and the sea through whose territory "traffic in transit" passes". Article 2 prescribes that freedom of transit shall be granted under the terms of this Convention for traffic in transit and means of transport.
Traffic in transit is to be facilitated on routes in use mutually acceptable for transit to the contracting States concerned. No discrimination is to be exercised based on the place of origin, departure, entry, exist or destination or any circumstances relating to the ownership of the goods or the ownership, place of registration or flag of vessels, land, vehicles or other means of transport used. Article 3 provides for exemption Traffic in Transit from custom duties or import or export taxes or other charges except charges levied for specific services rendered in connection with such traffic. Article 4 refers to means of transport and tariff. Article 5 refers to methods and documentation in regard to customs, transport etc. Article 8 refers to free zones or other custom facilities. Article 9 refers to provision of greater facilities. Article 10 refers to relation to most- favoured nation clause. Article 6 refers to storage of goods in transit. Article 7 refers to delays or difficuIties in traffic in transit.
16. We have now to take a look at the Afghan Transit Trade Agreement 1965. The Agreement was executed between the Government of Islamic Republic of Pakistan and -the Government of Kingdom of Afghanistan for regulation of traffic in transit on the 2nd of March 1965. The preamble of the Agreement states 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 to countries on a mutually advantageous basis improving the difficuIties in the movement of goods through the to countries, and having taken into consideration the present volume and future development of transit trade, have decided to conclude an agreement and to this and have appointed their plenipotentiaries. Article-I stipulates that the contracting parties undertake in accordance with the provisions of this agreement to grant and guarantee to each other the freedom of transit to and from their territories. It further provides 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 others means of transport.
Article-II stipulates 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 trans-shipment, 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". According to Article-Ill, the transit routes shall be (1) Peshawar- Torkham and vice versa and (2) Chaman-Spin Baidak and vice versa. The additional routes may be agreed between the Contracting Parties from the to the. Goods moving via these routes shall be entered at the proper customs posts prescribed by each party. Adequate transit and other facilities shall be provided by the Contracting Party concerned at these posts. ArticIfe-IV provides that no custom duties, taxes, dues or charges of any kind whether national, provincial or municipal shall regardless of their name and purpose, 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. It further provides that with a view to achieving simplification of existing customs practices and procedures, .The Contracting Parties agree to adopt at points of entry and exit the procedures laid down in the Annexure to the Agreement.
Article-V provides that without prejudice to the generality of the provisions contained in Article-Ill, 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. For hazardous and awkward goods separate arrangements for storage will be made as indicated in the Annexure. Article--VI provides that the to Contracting Parties, recognising the importance of the Kabul-Torkham- Peshawar transit route, have decided to examine all matters pertinent to the development of this route, including consideration of the extension of the railway from Landi Khana to Torkham. Article-VII provides that .The Government of the Islamic Republic of Pakistan undertake to meet in full the requirement of wagons for transit traffic on both Karachi- Spin Baidak and Peshawar-Karachi routes. Article-VIII enjoins on each Contracting Party to 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. The Liaison Officers will meet as often as necessary and in any case not less than once in six months and the Contracting Parties shall provide them with the necessary facilities. Article-IX provides that the Contracting Parties agree that railway freight, port and other dues shall he subject to the most sympathetic consideration and shall be no less favourable than those imposed by either party on goods owned by its own nationals. Article-X specifically provides that 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 heaIth and for the security of its own territory. Article-XI provides that the Contracting Parties shall meet and consuIt each other once a year to review the working of this Agreement. Article-XII provides that the Contracting Parties agree to resolve any difference relating to the interpretation of this Agreement by negotiation and in the went of failure to reach a settlement, to refer the matter to an arbitrator acceptable to both parties, whose decision shall be binding. Article-XIII provides that nothing in this Agreement or its Annexures will affect in any way the political stand of the to countries or the political difference existing between them and the Contracting Parties fully reserve their with regard to these subjects. Article-XIV provides that this Agreement should be ratified and the Instruments of Ratification shall be exchanged at Rawalpindi. The Agreement shall come into force from the date of the exchange of the Instrument of Ratification and shall remain in force for five years from the date it comes into force. 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, the Agreement shall be automatically renewed for a further period of five years. It can thereafter be terminated by either Party at any the provided six months notice of termination is given by either party. Article-XV provides that the present Agreement is drawn in duplicate in English and Dari Languages both texts being equally valid.
17. The Protocol annexed to Transit Agreement contains a detailed procedure for the transit of goods across the territory of Pakistan en-route from the Port of Karachi to the Afghanistan destination. The Protocol contains detailed provisions to ensure the goods reaching Afghanistan and to prevent the contingency of the goods escaping into the Pakistan market while on the way to Afghanistan. The Protocol contains detailed provisions for granting transporters muItiple entry visas, freight, driving licences and certificates of fitness in respect of transport vehicles covered by this Protocol. Article-8 of the Protocol provides that the to Governments shall consuIt each other with a view to adopting necessary measures to facilitate the flow of traffic between the to countries and shall seek all possible means within their power to remove any factors which may damage the normal accomplishment of the operation foreseen in the Protocol.
18. It is necessary at this stage to reproduce Section 129 of the Customs Act which is 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 that goods to be so transmitted without payment of the duties which would otherwise be chargeable on such goods."
19. In Zamir Itd. Versus Collector, of Customs and 3 others (PTCL 1984 (CL) 236), the C.B.R., had issued instructions, C. No. 79-80/Cus-L and P 13(6) dated 21.9.1982 regarding misuse of transit facilities and calling for letters of credit and Jawaznama at the the of clearance of transit goods. It was argued that there was long and consistent practice of non-requiring the letter of credit or Jawaznama for many years and that the practice is suddenly stopped by a circular and as such it cannot disturb the long and consistent practice. A Division Bench of this Court comprising Ali Nawaz Budhani and Muhammad Zahurul Haq, JJ rejected the contention and held that the law (Section 26 of the Customs Act and Standing Order 20 of 1960) requires the letter of credit to be produced and mentioned in the bill of entry and also other evidence was necessary to satisfy the Customs authorities that actually the banks in Afghanistan paid the amount to foreign countries. It was further held that there is no violation of any agreement.
20. In I.D. Jehani versus Central Board of Revenue and others (PLD 1986 Karachi 23), it was argued 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. It was held that "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 itself'. It was observed that the words "subject to the provisions of the rules" used in Section 129 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.
21. The Afghan Transit Agreement is more relevant. Its scheme, and sequence and even the language indicate that it is based on the convention on Transit Trade of Land-Locked countries.
The preamble to the Transit Agreement mentions that an agreement concluded 'recognising' that Afghanistan as a Land-locked country needs access to and from the sea to promote its international trade, and recognising the need to. Facilitate the traffic in transit through their territories.
22. It appears to us that the Transit Agreement concerned itself with the trade between Pakistan and Afghanistan. The provisions relating to import, transit and the free and unhampered flow of goods refers to the import from Pakistan to Afghanistan and to transit and the free and unhampered flow of goods in the course of trade between the to countries. Even sow, express reservation is made to each of the countries to impose restrictions for certain purposes as may be necessary for the protection of public morals, human, animal or plant life or heaIth and for the security of its own territory.
23. While the Transit Agreement generally guarantees to each of the Contracting Parties the free and unhampered flow of goods needed by one country from the other, the Transit Agreement generally guarantees to each of the Contracting Parties freedom of transit across the territory of the other Contracting Party in respect of goods which have to pass through the territory of such other Contracting Party to reach the first Contracting Party from outside the territory of the Second Party. In practice, the Transit Agreement really means a guarantee to Afghanistan to permit free and unhampered flow of goods needed by Afghanistan from Pakistan and a guarantee of freedom of transit for goods originating from outside Pakistan across the territory of Pakistan to reach Afghanistan. In the payment of Customs duties, taxes, dues on charges of any kind, the Transit Agreement grants exemption from such payment.. "The Transit Agreement contains reservations-.
There is a reservation enabling the imposition of such restrictions as are necessary for the purpose of protecting public morals, human, animal and plant life or heaIth and for the security of its own country.
24. Mr. Khalid M. Ishaque strenuously contended that the Transit Agreement cannot be terminated by a notice as provided by Article XIV of the Transit Agreement. I support of his contention, the learned counsel referred the following conventions:--
1. Geneva Convention on the High Seas, April 29, 1958.
2. Convention of Fishing and Convention of the Living Resources of the High Seas, General, April 29, 1958.
3. The third U.N, Conference on the law of the Sea (1973-82).
4. Convention and Statute on Freedom of Transit, Barcelona, April 20, 1921.
Mr. Khalid Ishaque referred the following books in Support of his contention:--
1. Principles of Public International Law, 4th Edition by Ian Brownlie, pages 286, 447, 554.
2. Greig International Law.
3. Cases and Materials of International Law by Harris, 3rd Edition, page 618.
25. We have been taken through the Conventions and the books on International Law. They are not relevant for the purposes of this' case as the Transit Agreement is still subsisting. Mr. Ikram Ahmed Ansari, learned Deputy Attorney General submitted that the Transit Agreement has not been terminated by the Government of Islamic Republic of Pakistan. According to him, there is a reservation enabling the imposition of such restrictions as are necessary for the purpose of protecting public morals, human, animal and plant life or heaIth and for the security of its own territory. There is an express reservation for the protection of public morals.
26. The question for consideration is that the imposition of restriction on tyres and trucks would be for the purpose of protecting public morals and/or for the security of its own territory. The case of the respondents No. 1 to 3, as set out in the parawise comments, is that in view of the mounting complaints of smuggling back, the respondents No. 2 and 3 have banned the import of tyres and tubes as envisaged under Section 129 of the Customs Act, 1969 read with Pak Afghan Transit Trade Agreement under intimation to the Ministry of Foreign Affairs, Government of Pakistan, Embassy of Afghan Government and other relevant quarters vide Public Notice dated 23rd July, 1990 in pursuance of Central Board of Revenue letter C. No. 3(11) L&P/83 dated, 18.7.1990. The case of the respondents is that the sole intention was that import of subject goods were considered detrimental to the economic security in.Terms of Article-X of the Pak. Afghan Transit Trade Agreement. It is further stated in the comments that the Governments allowing the facility of transit have every right to protect their own interest and sovereignty, if their legitimate interests are threatened.
27. The contention of Mr. Ikram Ahmed is that tyres and tubes are being imported under guise of import to Afghanistan and that they are finding their way back across the Afghanistan-Pakistan border into the Pakistan market to the gross prejudice to the Government of Pakistan.
28. The grievance of respondents seems to have been that the goods are being imported under the guise of import to Afghanistan and these were finding their way back across the Afghanistan- Pakistan border into Pakistan market to the gross prejudice to the Government. If the goods which were trans-tripped through Pakistan or were in transit or are in transit re-entered into Pakistan by violation of law or treaty, the Custom Law would be broken.
29. The term 'import' derived from the Latin word 'importare', Lexico logically does not have reference to goods in transit: it generally contemplates 'pause and repose' of goods. In a given context, and for understandable reasons, however, the statutory scheme may sanction a wider meaning to that term. It has been said that the test is the intention with which the goods were brought in. Chief Justice Marshall said in Browne v. State of Maryland, (1824-27)6 Law Ed. 678, that "sale is the subject of importation and is an essential ingredient of the intercourse of which importation constitutes a part".
30. Keeping (in view) the background that treaty with Afghanistan deaIt with import into Afghanistan from Pakistan and the treaty of transit read with Protocol deaIt with the goods which are in transit in Pakistan coming from other countries, Afghanistan being a land-locked country, and construing the expressions used in the Customs Act, in our opinion, it would be wrong to say that the moment the goods crossed the customs barrier or entered into the Pakistan territorial waters as defined in the Customs Act, they should be construed to have been imported into Pakistan under the Customs Act and the other provisions relating to importation would be applicable for importation of these goods. Looking at from another point of view, if we accept the contention of the respondents advanced in this case, then that would mean all goods which are prohibited in Pakistan but which are not prohibited in Afghanistan could not have transit as such through Pakistan. That, in our opinion, would not be a reasonable construction to make specially keeping in view the background of the treaty and the Protocol which we have mentioned hereinbefore. 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 the mass of other tyres and tubes, then other remedies might be open to the respondents. Similarly, if the allegations of the respondents be true as was sought to be made out that the tyres and tubes which were meant for transit, had been stolen and surreptitiously mixed up with the Pakistan goods, then other civil and criminal remedies might be open to the respondents but not by involving Sections of Customs Act as was sought to be done by the respondents in this case. We are, however, of the view that the provisions of Customs Act and Import and Export Control Order deaIt with different kind of situation, i.e., after being imported into Pakistan and imported in Afghanistan. The provisions of Customs Act do not deal with goods in transit which were not really imported into Pakistan.
31. In the resuIt, the petition succeeds and is allowed. The letters/orders dated 14.1.1989 and 19.12.1989 are quashed. The respondents No. 3 to 5 are 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. We direct the respondents to clear the stock involved in the petition for immediate transit to Afghanistan. We also direct the respondent No. 4 to issue delay detention certificate. In the circumstances of the case, the parties are directed to bear their own costs.