1. MUKHTAR AHMAD JUNEJO, J.---These three Civil Review Petitions seek review of a single judgment dated 7-12-1992 delivered by a learned Bench of this Court deciding Civil Appeals Nos. 21, 22 and 110-P of 1990, which were directed against the Peshawar High Court's judgments dated 6-6-1989, 27-6-1989 and 23-5-1989 disposing of Writ Petitions No.334 of 1986, No. 339 of 1987 and No.192 of 1981.
2. Writ Petition No. 334 of 1986 dismissed under the judgment dated 6-6-1989 was filed by Tilla Gul, appellant in Civil Appeal No. 21 of 1990 and now petitioner in Civil Review Petition No.3 of 1993. Writ Petition No.339 of 1987 dismissed under the judgment dated 27-6-1989 was filed by Sher SCMR Zaman, appellant in Civil Appeal No.22 of 1990 and petitioner in Civil Review Petition No. 4 of 1993.
3. Writ Petition No.192 of 1981 dismissed under the judgment dated 23-5-1989 was filed by Haji Sundi Gul, Mamoor Khan and Manzoor Illahi appellants in Civil Appeal No. 110-P of 1990 and petitioners in Civil Review Petition No. 11 of 1993.
4. According to Writ Petition No. 192 of 1981 Haji Sundi Gul, importer and dealer in Automobile Spare Parts at Jalalabad (Afghanistan), imported from U.K. a consignment of 465 sets of Ford Transit Crown Wheel and Pinion. After arrival of said consignment in Pakistan, the same was put in Truck No.8777- PRA owned by petitioner Mamoor Khan for carrying the same to Jalalabad (Afghanistan) via Peshawar and Torkham, as transit goods. On 11-11-1980 said consignment was off loaded, examined and repacked with seals by the Customs Authorities at Peshawar, who made such endorsement at back of ATTI No.1081 dated 30-8-1980. After loading of same truck, with the said consignment, it resumed its journey. The consignment in question was again desealed, and examined on 13-11-1980 at Torkham. At Torkham the Customs Authorities found that the goods in question originally meant for "For Transit Vehicles" were replaced during transit, with the goods meant for "Bed Ford Vehicles". At Torkham it was further found that the seals put/affixed on the cargo at Peshawar were found illegible, unidentifiable and tampered. The Customs Authorities therefore seized the truck as well as the goods and registered a case which was put before the Deputy Collector, Excise and Land Customs, Peshawar, who after completing the proceedings passed an order dated 7-3-1981 confiscating the goods in question as well as the truck carrying the same, with an option for redemption of the truck against a fine of Rs.30,000. Under the same order, a personal fine of Rs.20,000 each was also imposed under section 168 of Sea Customs Act on Haji Sundi Gul (Importer), Mamoor Khan (owner of Truck No.8777-PRA) and Manzoor Illahi (of M/s. Shirkat-eMaqbool, a Clearing and Forwarding Agent, who are petitioners in Civil Review Petition No.11 of 1993. While imposing such penalty, the Deputy Collector, Excise and Land Customs in his order dated 7-3-1981 took view, that the goods in question consisting of "Bedford Spare Parts" were substituted during transit in Khyber Agency with smuggled spare parts of Bedford Transit Van. Said order dated 7-3-1981 was challenged by way of an appeal before the Collector, Central Excise and Land Customs, Peshawar, who under his order dated 8-5-1984 maintained the same, after being convinced that substitution of goods, as noted by lower Customs officials, had taken place. The petitioners of Civil Review Petition No. 11 of 1993 therefore invoked Constitutional jurisdiction of the Peshawar High Court by filing Writ Petition No. 192 of 1981.
5. According to Writ Petition No.334 of 1986 filed by Tilla Gul and No.339 of 1987 filed by Sher Zaman, a consignment of 38 cases, containing "Crown Wheel and Pinion" size 6.35 used as replacement parts of Bedford Trucks, was exported by M/s. Qamza Exporters from U.K. For Tilla Gul in Afghanistan. The consignment in question on arrival at Karachi Port in 38 cases was treated as "Afghan Transit Goods" and was despatched by the Customs Authorities to the Land Customs Officer, Peshawar in a sealed railway wagon with Afghan Transit Invoice. At Peshawar the consignment in question was loaded in a hired Bedford Truck with Registration No.PRC-4475, Engine No.5/J6-26107 and Chassis No.J6L-25-7847135 belonging to Sher Zaman (petitioner in Writ Petition No.339/87) for carrying the same to Tilla Gul at Jalalabad (Afghanistan) via Torkham under escort of an official of Customs, namely, Mubarak Khan. On the way the said truck stopped for a while at Chinar Petrol Pump, Khyber Agency and then resumed its journey further and on 10-8-1980 it reached Torkham, where arrival was reported to the local Land Station Customs. It was here on 10-8-1990, that the Customs Constable Mubarak Khan escorting the said truck complained that on the way of Chinar Petrol Pump, Khyber Agency, he was forcibly taken away from the truck he was escorting and after a while when he returned he saw that a new truck bearing same registration No.4475-PRC was parking at Chinar Petrol Pump, in place of truck by which he came from City Station Peshawar to said Petrol Pump. On receipt of such complaint of Mubarak Khan, the Customs Authorities took into possession said truck alongwith its original "limo Khabar" No. 07712 and 06713. The seals of the consignment were found doubtful and illegible. Suspecting foulplay, the Customs Authorities took the truck to a shed and desealed it. The entire consignment was examined which revealed that contents of 30 cases out of total consignment of 38 cases, did not conform to the description given in ATTI and their marks and numbers on packages were different from the same given in the ATTI and all the 38 cases bore mark of "S. S. Walterham" although the genuine consignment ---- was imported by "S.S. Medi Sea". The consignment was therefore detained at Torkham and was examined on 11-8-1982 by the Superintendent, Customs Transit, Peshawar and the staff who supervised examination and loading of the genuine consignment. ' They found the entire consignment to be different from the actual transit goods which appeared to have been pilfered and stolen in contravention of the Pak-Afghan Transit Trade Agreement. Consequently the replaced consignment of 38 cases containing 760 sets of Crown Wheels and Pinions were seized under section 168(8)(38) and (81) of the Sea Customs Act, while the Truck No.PRC-4475 was seized under section 168 of the said Act. A notice dated 9-9-1982 was issued to Tilla Gul (Importer), Sher Zaman (owner of truck No.PRC-4475) and others of Customs Clearing Agencies to show cause on 30-9-1982 as to why action against them should not be taken under section 167(8)(38) and (81) of the Sea Customs Act and why the truck in question and the goods in question should not be confiscated under section 168 of Sea Customs Act. One Qamar Muhammad filed reply to show- cause notice on behalf of Tilla Gul seeking re-inquiry. After the investigation a Superintendent Customs posted at Peshawar, submitted report that according to pre-planning, the replacement of 30 wooden cases had been carried out in a dramatic manner. SCMR Consequently under an order dated 27-4-1983 passed by the Deputy Collector, Central Excise and Land Customs, Peshawar, the goods in question were confiscated alongwith Truck No.PRC-4475. An option was given for redemption of the truck on payment of Rs.40,000 as fine. Said order dated 27- 4-1983 was assailed by Tilla Gul and Sher Zaman under two separate appeals before the Collector of Central Excise and Land Customs (Appeals), Northern Zone, Lahore, who under his order dated 31-5-1983 accepted both the appeals and remanded the case to the Deputy Collector for de novo consideration and decision after hearing Tilla Gul and Sher Zaman and allowing them for association in the inquiry and providing them with sufficient opportunity to explain with regard to the allegations against them. After remand Tilla Gul filed an affidavit of the consignor to show that the goods in question belonged to two different lots. Under an order dated 28-4-1985 the Deputy.
6. Collector adopted the earlier order dated 27-4-1983 and ordered confiscation of the goods, with option for release of the truck on the condition given in said order dated 27-4-1983. Said order dated 28-4-1985 was challenged by Tilla Gul and Sher Zaman under two separate appeals before the Collector, who, under his order dated 3-12-1985, dismissed both the appeals. Tilla Gul and Sher Zaman took the matter in separate revisions to the Central Board of Revenue but the same were rejected by the Additional Secretary, Ministry of Finance/Member, C.B.R. Under his order dated 22- 6-1986. The order dated 22-6-1986 was therefore challenged in Peshawar High Court by Tilla Gul under Writ Petition No.334 of 1986 and by Sher Zaman under Writ Petition No. 339 of 1987.
7. All the three writ petitions were dismissed by the Peshawar High Court on different dates. Such dismissal was challenged through different appeals which were filed in this Court. All those appeals were dismissed by a learned Bench of this Court under a single judgment dated 7-12-1992. Hence these review petitions. Mr. Zaheer Ahmed Khan, learned counsel for the petitioners argued that in the instant case, the confiscation took place under the Sea Customs Act at the places which were in Tribal Areas. Learned counsel conceded that the provisions of the Sea Customs Act were extended to the Tribal Areas under a notification dated 22-9-1926. He added that said notification empowered Agency of Tribal Areas to exercise in its jurisdiction the powers akin to the powers exercisable by the Government of Pakistan under the Sea Customs Act in all cases of seizure.
8. Learned counsel pointed out that under the Tribal Areas (Application of Acts) Regulation 1965 the Sea Customs Act was made applicable to the Tribal Areas but on enactment of the Customs Act, 1969 the Sea Customs Act stood repealed by.Section 220 of the said Act of 1969 and hence no action under the repealed Act can be taken by the Customs Authorities even in the Tribal Areas.
9. Learned counsel for the petitioners while conceding that the provisions contained in the Customs Act, 1969 were not extended to the Tribal Areas in terms of Article 247(3) of the Constitution of Pakistan, argued that it was unthinkable to conceive existence of the Sea Customs Act in Tribal Areas when it ceased to exist in Pakistan on the analogy that branches of a tree cannot exist when its trunk was cut and removed. Learned counsel cited the cases of the Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and others (PLD 1969 Supreme Court 485).
10. Raja Muhammad Bashir, learned Deputy Attorney-General argued that since Customs Act, 1969 including its section 220 repealing Sea Customs Act, 1878, was not extended to the Tribal Areas in terms of Article 247(3) of the Constitution of Pakistan, hence the latter Act continued to be in force over there. Replying to an example of branches of a tree existing without existence of the tree, learned Deputy Attorney-General argued that contrary to physical structures, in law there is room for legal fiction. He was of the view that the operation of the Sea Customs Act in the Tribal Areas, can cease only when the law repealing the Sea Customs Act, 1878 comes in force over there.
11. Learned Deputy Attorney-General conceded that all the recoveries took place in Tribal Areas where Sea Customs Act, 1878 has yet to give way to the Customs Act, 1969.
12. In the case of Superintendent, Land Customs, Torkham v. Zewar Khan and others (PLD 1969 SC 485) a detailed history has been given about the Constitutional position of Tribal Areas, which did not form part of the territories of British India, or of the Dominion of Pakistan after coming into force of Indian Independence Act, 1947. As observed, section 2(3) and the proviso to section 19(3) of said Act of 1947 contemplated that the areas not forming part of the Dominian of Pakistan could be included in it, with the consent of the Dominion and arrangements made with the representatives of the Tribal Areas. In the cited case, note has been taken of the speeches of Quaid-i-Azam dated 31-7-1947 and 17-4-1948 which gave de facto accession of the tribal areas to the territories of Pakistan, by the agreement of the tribal Jirgas. The de jure accession took place, as observed, with the issue of (i) Extra-Provincial Jurisdiction Order, 1949 (G.G.O. No. 5 of 1949) and (ii) the Pakistan Provisional Constitution (Amendment) Order, 1949 (G.G.O. No.6 of 1949). It was further observed in the said case, that the laws which were made applicable to the Tribal Areas before 15-8-1947 in exercise of the powers given to the Governor-General under the Indian Foreign Jurisdiction Order, 1937, did not lapse with the coming into force of the Indian Independence Act, 1947, and that the Tribal Areas became part and parcel of the territories of Pakistan with effect from 15-8-1947.
13. Penultimate of the entire discussion was summarized in Zewar Khan's case in the following words:- "The result, therefore, of the above analysis of the various Constitutional provisions relating to the Tribal Areas is that the Tribal Areas became legally parts of the territories of Pakistan from 15-8- 1947, the date mentioned in the Notifications of the 27th .June, 1950, and all laws which applied to those territories before the 15th August, 1947, were continued in force until altered or amended, and from 1955 the Tribal Areas of the North-West Frontier became parts of the Province of West Pakistan having a representation even in the Legislature of the said Province. There could be no manner of doubt, therefore, that the Sea Customs Act, the Land Customs Act and section 5 of the Tariff Act, which had been made applicable to the Tribal Areas by the Notifications of the 22nd September 1926 and the 24th January 1938, continued to apply in those areas and never lapsed."
14. The Sea Customs Act, 1878 was specifically made applicable to the Tribal Areas under Tribal Areas (Application of Acts) Regulation, 1965, which was issued in pursuance of Clause (2) of Article 223 of the Constitution of Pakistan, 1962. Article 223(1) of the Constitution of Pakistan, 1962 provided that no Central Law applied to a Tribal Area unless the President so directed. Article 223(2) ibid empowered the President to make regulations for a Tribal Area or any part of a Tribal Area with respect to any matter within the legislative competence of the Central Legislature. The Sea Customs Act, 1878 therefore, applied with full force to the Tribal Areas on issue of said Regulation 1965 even if earlier it did not apply to the same. It is worthy to note that Clause (2) of Article 223 of the Constitution of Pakistan, 1962 gave unbridled powers to the President of Pakistan to legislate for the Tribal Areas through Regulations with respect to any matter within legislative competence of the Central Legislature. This power could be exercised by the President notwithstanding the fact that there was no Act passed by the Parliament of Pakistan on the subject covered by the President's Regulation for the Tribal Areas. Hence one can visualize a law existing in the Tribal Areas but not in the settled areas of Pakistan. While the provisions contained in Sea Customs Act were made applicable to the Tribal Areas by virtue of Article 223(1) of the Constitution of Pakistan, 1962, it was not an act of legislation by the President and such legislation was independent of applicability of the said Act in settled areas of Pakistan. Conversely disappearance of such legislation from settled areas of Pakistan, would not affect duly legislated law applicable to Tribal Areas. President had general powers of legislation for the Tribal Areas with respect to any matter within legislative competence of the Central Legislature vide Article 223(2) of the Constitution of Pakistan, 1962. Hence repeal of Sea Customs Act in the Tribal Areas cannot be assumed, due to its repeal in Pakistan by an Act not yet made applicable under Article 247(3) of the Constitution of Pakistan, 19/3 to the Tribal Areas. As mentioned under Chapter XIV of the Construction of Statutes by Earl T. Crawford, the power to repeal is a legislative function or attribute. Consequently the contentions raised on behalf of the petitioners have no force. Contention was raised on behalf of the petitioners that the goods in question came in Pakistan in pursuance of Afghan Transit Trade Agreement, 1965 and the same were meant to be imported into Afghanistan and consequently they were not "smuggled goods" to attract the penal provisions of the Sea Customs Act. This point has been dealt with in the case of M/s. Najib Zarab Limited v. Government of Pakistan and others (PLD 1993 Kar. 193) where it was observed as below:-- "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 Customs Law would be broken."
15. For the foregoing reasons we are of the view that no case is made out for reviewing the judgment of this Court dated 7-12-1992. These three Review Petitions are therefore dismissed.
16. (Sd.)
17. Mukhtar Ahmad Junejo, (Sd.)
18. Muhammad Bashir Khan Jehangiri, .1. I have recorded dissenting note separately.
19. (Sd.)
20. Saiduzzaman Siddiqui, J.
21. SAIDUZZAMAN SIDDIQUI, J.---I have had the advantage of going through the judgment proposed to be delivered by my learned brother, Mukhtar Ahmad Junejo, J. In Civil. Review Petitions Nos.3, 4 and 11/93. While I agree with the conclusion of my learned brother that the repeal of Sea Customs Act, 1878 in the settled areas of Pakistan did not automatically amount to repeal of the said Act in so far it applied to the Tribal Areas of Pakistan was concerned, I am unable to agree with the other conclusions recorded by my learned brother in his judgment. I may mention here that besides the point relating to the repeal of Sea Customs Act 2 other points were noted in the order of this Court dated 13-12-1993 on which the learned counsel for the petitioners addressed lengthy arguments but they have not been dealt with in the judgment of my learned brother. For the sake of convenience, I reproduce here the order dated 13-12-1993 passed by this Court in the above review petitions which reads as under:-- "Notice to the respondents in view of the following arguments addressed before us:--
(1) The Notification No.443-F dated 22nd September, 1926 contained at page 193 of the Pakistan Customs Manual (copy at page 126 of the #TBS From the above notification which has been issued under section 19 of #TBE paper book in Civil Appeal No.21 of 1990) read with Notification No.107-F dated 30-5-1939 published at page 919 of the Gazette of India, dated 3-6-1939 (copy at page 20 of the Cr.P.R. No. 3/93 paper book) considered with the judgment of the Division Bench of High Court of Sindh in M/s. Najib Zarab Limited v. Government of Pakistan through Ministry of Finance and others (PLD 1993 Kar. 193) necessitate a reconsideration of the judgment of this Court as no such notification in respect of the specified goods had taken place.
(2) The Sea Customs Act stood repealed from 1-1-1970 and the new Act was not extended to the Tribal Areas till 1-7-1984 thereby creating a vacuum so far as the applicability of this law is concerned.
(3) The substitution of an article even if taken as a fact does not amount to its smuggling, the offence for which the convicts have been punished."
22. It is quite clear from the above order dated 13-12-1993 that the notice was ordered in the above cases to consider, besides the effect of repeal of Sea Customs Act, 1878 in Pakistan on its application to Tribal Areas during the interregnum between 1970 to 1-7-1984, the effect of Notification No.107-F dated 1-6-1939 in the Gazette of India dated 3-6-1939, in the light of the judgment of Division Bench of High Court of Sindh reported as M/s. Najib Zarab Limited v.
23. Government of Pakistan and others (PLD 1993 Kar. 193). In addition to this, another point noted in the above order was whether, the substitution of an article would amount to an offence of smuggling within the meanings of the Customs Act. The Notification No.107-F dated 1-6-1939 reads as follows:- - "No. 107-F.--In exercise of the powers conferred by section 19 of the Sea Customs Act, 1878 (VIII of 1878) as applied to the Tribal Areas beyond the western and northern boundaries of the North- West Frontier Province, and in supersession of the Notification of the Government of India in the late Foreign and Political Department No.187-F., dated the 10th April, 1933, in so far as it relates to Tribal Areas, the Central Government is pleased to prohibit the bringing or taking of aircraft or parts of aircraft by land into or out of the said Tribal Areas save under a licence granted by the Central Government in this behalf. Explanation.--For the purpose of this Notification the expression 'parts of aircraft' shall mean such parts as are indispensable for the operation of the type of aircraft for which they are intended and for that purpose have been given a special shape or quality which would not be essential for their use for any other purpose." the Sea Customs Act, 1878, it appears that the Central Government was pleased to prohibit the bringing in or taking of aircraft or parts of aircraft by land into or out of the Tribal Areas saved under a licence granted by the Central Government in this be41f. The learned Deputy Attorney- General was asked at the hearing of the above review petitions to point out or produce any other notification issued by the Central Government under section 19 of the Sea Customs Act, 1878 prohibiting the movement of any other, kind of goods from the settled areas to the Tribal Areas but the learned Deputy Attorney-General was not able to produce or point out any other such notification in this behalf. It is an admitted position in the present case that the goods involved in all these cases were goods in transit via Torkham border to Afghanistan. It is also an admitted position that the transit of goods is regulated through the territory of Pakistan to Afghanistan under Afghan Transit Trade Agreement executed in the year 1965. The Transit Agreement between the Government of Pakistan and Government of Afghanistan provides for the following procedure in respect of goods in transit:-- "On arrival of the goods, the owner of 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. Thereafter, 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-itransit goods, which will be sealed by the Railway. In the case of open wagons loading heavy articles such as cars, trucks, machinery etc., sealing may be dispensed with. The original copy of the invoice duly checked and completed by the Customs will be handed over to the owner of his agent and the duplicate and triplicate copies will be despatched to the Afghan Customs at Spin Baldak. The Afghan Customs will retain the duplicate and will return the triplicate copy to the Customs House of despatch in Pakistan with endorsement certifying the arrival of the goods. As regards the goods despatched by Peshawar-Torkham route from Karachi, Customs House will despatch 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 Custom Officer at Torkham. On arrival of the goods at Peshawar, 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 alongwith the duplicate copy of the invoice for inspection and final clearance whereafter he will return the duplicate to the Customs Officer at Peshawar.
24. 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."
25. The transit of the goods which were subject-matter in the above cases was regulated strictly in accordance with the provisions contained in Transit Agreement between the two sovereign Governments, reproduced above. ,The grievance, however, made in respect of these goods before the Customs authorities was, that these goods were changed with the goods of inferior quality while in transit and accordingly, Customs Authorities after holding adjudication proceedings confiscated these goods outright under sections 167(8) (38) and (81) of the Customs Act, 1887. The question which, therefore, arose for consideration before the Court in these cases was, whether in respect of the goods which were in transit to Afghanistan under the Transit Agreement between the Government of Pakistan and Government of Afghanistan, the provisions of Customs Act could be made applicable. The Transit Agreement between the Government of Pakistan and Afghanistan provided transit of these goods through the territory of Pakistan without charging of any Customs duty etc. Section 129 of the Customs Act specifically provides that the goods which are in transit have to be allowed passage without payment of duties which would otherwise be chargeable on such goods. Although there was no identical provision in the Sea Customs Act, 1878 dealing with the goods in transit but such cases would be governed under the provisions of section 128 of the said Act which dealt with the goods which were to be transhipped to a foreign country. Apart from it, in the absence of a specific provision in the Sea Customs Act 1878 dealing with the goods in transit, the case was govered under the provisions of Transit Agreement referred to above. The action taken by the Customs Authorities in these cases was under section 167(8) (38) and (81) of the Sea Customs Act. In the case of Najib Zarab Ltd. v. Government of Pakistan, supra, a similar argument was addressed before the learned Division Bench of the High Court at Karachi but the same was repelled by the learned Judges, as follows:-- "Keeping the background that treaty with Afghanistan dealt with import into Afghanistan from Pakistan and the treaty of transit read with protocol dealt with the goods which are in transit in Pakistan coming from other countries, Afghanistan being a landlocked 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 custom 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 grohibited' 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 the 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 invoking 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 dealt with different kinds of situation, i.e. After being imported into Pakistan sand imported in Afghanistan. The provisions of Customs Act do not deal with goods in transit which were not really imported into Pakistan."
26. Against the decision in the case of Najib Zarab Ltd. v. Government of Pakistan, supra, an appeal was preferred before this Court which was registered as Civil Appeal No. 520-K/93 (Government of Pakistan and others v. Najib Zarab Ltd. And another) and this appeal was heard alongwith Civil Appeals Nos.521/93 and 361/93 and decided by a learned Bench of this Court by judgment dated 12-7-1995. This Court upheld the judgment of Division Bench of High Court of Sindh in Najib Zarab case, supra, with the following observations:-- "Looked at from yet another angle, the Customs Authorities had no jurisdiction in the matter at all.
27. 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 apprcfriate action and that, too, in terms of the Transit Agreement to prevent the alleged smuggling back of the tyres 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. In 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 transhipment to a country outside Pakistan/the goods in transit to Afghanistan.
28. 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.
29. 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 impugned action to protect the economic interest 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 ecomonic 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 observations, '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 machanism, 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 o$-'hearing, we were informed that the meetings between the parties were already being held and the parleys were in progress for regotiating/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 substituting, the appellants had no option but to 'allow the goods in transit to be transited to Afghanistan in accordance with 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."
30. In view of the above-discussed legal position I am of the view that the action taken by the Customs Authorities in confiscating the consignments of the petitioners which were in transit to Afghanistan, under the provisions of the Customs Act was wholly without jurisdiction and lawful authority.
31. The last point arising for consideration in these cases is whether the alleged substitution of the goods which were in transit to Afghanistan by goods of inferior quality amounted to smuggling of goods in Pakistan so as to attract the provisions of the Sea Customs Act. "Smuggle" is defined in section 2(s) of the Customs Act, 1969, as follows:-- "(e) 'Smuggle' means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties of taxes leviable thereon,--
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, anti-ques, currency, narcotics and narcotics and psychotropic substances; or
(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed five thousand rupees in value; or
(iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a custosms station, and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly;"
32. Although "smuggle" or "smuggling" are not defined in the Sea Customs Act, but this expression has special meanings under the Sea Customs Act. Under section 19 of the Sea Customs Act, Central Government has been empowered to prohibit or restrict bringing or taking by sea or land goods of any specified description into or out of Pakistan across any customs frontier as may be defined by the Central Government. Therefore, goods which are being brought or taken out in contravention and restriction which may be imposed by the Central Government under section 19 of the Sea Customs Act, amounted to smuggling of the goods into Pakistan. There is no such allegation in the cases before us in respect of the consignments which were seized by the Customs Authorities under the provisions of the Customs Act. In the case of Najib Zarab v. Government of Pakistan, supra, the learned Judges of the High Court came to the conclusion that the allegation of the Government that the goods imported for Afghanistan surreptitiously found their way back into Pakistan or that they were mixed up with the goods in Pakistan could not amount to smuggling of the goods. This decision of the Karachi High Court has been upheld by this Court as stated earlier in this judgment. In these circumstances, I am of the view that the allegation of substitution of goods in transit to Afghanistan by goods of inferior quality did not constitute an act of smuggling. As observed in Najib Zarab's case, supra, by the learned Judges of the High Court and upheld by this Court, such an action may amount to some other offence for which the authorities are free to take action in accordance with the law. In view of the above discussed legal position, I accept the review petitions and consequently Civil Appeals Nos.21/90, 22/90 and 110-P/90 are allowed and the orders passed by the Customs Authorities confiscating the goods under sections 167 (8) (38) and (81) of the Sea Customs Act are declared as without lawful authority and of no legal effect. There will, however, be no order as to costs in the circumstances of the case.
33. (Sd.) Saiduzzaman Siddiqui, J ORDER OF THE COURT By majority opinion all the three Civil Review Petitions hearing Nos.3,ID 4 and 11 of 1993 are dismissed.
34. (Sd.)
35. Saiduzzaman Siddiqui, J.
36. (Sd.)
37. Mukhtar Ahmad Junejo, J.
38. (Sd.)
39. Muhammad Bashir Khan Jehangiri, J.