' JAVED IQBAL, J.-- This is a Constitutional petition preferred on behalf of Haji Muhammad Afzal (petitioner) under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as the Constitution) with the following prayer:-- "It is, therefore, in view of the above submissions, humbly prayed that this Honourable Bench may be pleased to avail a patient hearing to the petitioner and thereafter to issue notices to respondents and this Honourable Division Bench may further be pleased to issue directives for the reimbursement of the amount so charged subject to the submission of receipts issued by the respondent No,3 and this Honourable Division Bench may further be pleased to issue directives by way of issuing writ not to charge the illegal amount in future, when the Customs Duty had already been paid and they may further be brought to justice, in so far as may be necessary to meet the ends of justice and equity."
2. Briefly stated the facts of the case are that petitioner is a business man of Timber and imports the same from Afghanistan and after making payment of Custom Duty and completion of other formalities dispatched the same to Karachi and Lahore. On 1-9-1997 when the petitioner loaded trucks of Timber/Lumber after the payment of Custom Duty when Forest Officer Quetta Range Quetta alongwith other staff members apprehended the truck loaded with imported Timber at Baleli Check Post and detained the same and made demand of Rs,3,000 per truck as fine. The petitioner showed all the relevant documents including Customs Duty paid receipts but in vain. The petitioner could not convince the Forest Officer that the Timber/Lumber were not domestic but had been legally imported from Afghanistan. The Forest Officer insisted for payment of fine of Rs,3,000 per truck which was paid under protest as there was no way out. The Divisional Forest Officer, Quetta Division, Quetta (respondent No,2) was apprised of the prevalent situation and relevant documents were shown to him and his attention was drawn towards the illegal imposition of fine by the Forest Officer (respondent No,3) with the request for the reimbursement of money but in vain. It is further the case of petitioner that being a business man he cannot afford the detention of his truck alongwith timber/lumber, which cause irreparable loss and substantial damages; as such being the only efficacious remedy this petition has been filed.
3. It is mainly contended by Mr. Nawaz Khan Barakzai, Advocate that Forest Department does not figure in and no authority whatsoever under any statute or law has been conferred upon the Forest Officer to impose any fine and as such the imposition of fine being unlawful cannot be charged and the action of Forest Officer contrary to law may be checked and direction be issued that no such fine should be imposed in future and amount realized so far as fine may be reimbursed. It is next contended that the timber/lumber being imported one is subject to Customs Duty which is being paid and no other tax can be levied including any fine by the Forest Department having no authority in this domain which exclusively falls within the ambit of Customs Authorities.
4. Mr. Ahmed Khan Lashari, learned Advocate-General appeared on behalf of respondents and strenuously controverted the position as canvassed by Mr. Nawaz Khan Barakzai, Advocate and contended that such fine can be imposed by the Forest Department in view of the provisions as contained in sections 15, 16 read with section 2(7) of the Balochistan Forest Regulation, 1890. It is further pointed out that the Forest Department has its own jurisdiction and the movement of timber/lumber including any forest product can be checked and in case of violation of any provisions of the Forest Regulation, 1890 fine can be imposed and as such no illegality whatsoever has been committed by the Forest Department and as such the question of reimbursement of fine imposed in accordance with law cannot be reimbursed.
5. We have carefully examined the respective contentions as adduced on behalf of petitioner and for respondents in the light of record of the case and relevant provisions of Balochistan Forest Regulation, 1890. The pivotal question to be determined would be as to whether after payment of Customs Duty fine of Rs,3,000 can be imposed per truck as fine on the pretext that the imported timber in fact pertained to local forest? The imposition of such fine cannot be equated to that of royalty as contended by learned Advocate-General which has got its own peculiar characteristic.
No doubt that "timber from Afghanistan" is a "Forest Product" but the provisions as contained in Balochistan Forest Regulation, 1890 cannot be extended to Forest located in Afghanistan and Forest Product imported from Afghanistan. Forest permit would be necessary for that timber or Forest Product which is brought from any forest located within the territorial domain of Pakistan and not from any other country. We are of the considered opinion that after payment of Custom Duty on such timber or Forest Product it can be considered as validly imported material and as such the question of imposition of any fine does not arise. The said fine cannot be considered as royalty because no such notification whatsoever has been issued by the Government empowering the Forest Department to collect such royalty.
6. We are not persuaded to agree with the learned Advocate-General that in view of the provisions as enshrined in section 2(7) of the Balochistan Forest Regulation, 1890 such fine could be imposed.
It seems proper to reproduce section 2(7) of the said Regulation for ready reference:- "(7) 'Forest Product' includes:---
(a) The following, whether found in, or brought from, a forest or not, that is to say:-- timber, charcoal, caoutchouc, catechu, wood oil, resin, natural varnish, bark, lac, mahua flowers and myrabolams; and
(b) the following when found in or brought from, a forest, that is to say:--
(i) trees and leaves, flowers and fruits and all other parts or produce not hereinbefore mentioned of trees,
(ii) Plants not being trees including grass, creepers, (reeds and moss), and all parts or produce of such plants.
(iii) wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax, and all other pasts or produce of animals, and
(iv) peat, surface-soil, rock and minerals (including lime-stone, laterite, mineral oils and all products of mines or quarries)."
A bare perusal of the above section would reveal that word "brought" has been used which is neither synonymous nor interchangeable to that of "imported" which conveys the meaning of bringing something from outside the country by following the prescribed procedure under relevant law. It may not be out of place to mention here that the words "from Forest" have been used in clause (a) of section 2(7) of the said Regulation cannot be interpreted in such a manner and stretched too far to include any forest irrespective of its location. The language as employed in said clause is free from any ambiguity and hardly needs any interpretation. It is well-settled that "where words in a statute are clear and unambiguous they should be construed according to their tenor and meaning for that gives intent and purpose of legislation. Any attempt to bring within it a case not covered by straining language would amount to defeating object of a legislation-- Where meaning is incomplete or is ambiguous, it is permissible to construe it in a way to remove absurdity so as to give effect to purpose of a legislation" PLD 1984 SC 369. It is clear that the provisions as contained in section 2(7) relates to those forest which are located within Pakistan.
7. We have also examined and perused carefully the provisions as contained in section 15 which runs as follows:-- "15(1) No timber or other forest-produce, whether the produce of a State forest or of other land, shall be taken along any route authorized for the removal of timber or other forest-produce under section 14 unless covered by a pass issued by a Forest Officer whom the Chief Forest Officer has duly authorized in that behalf or by the owner of the land, as the case may be."
In said section the words "of other land" used in second line means lands either located adjacent to such forest within the country or land where such products such as timber, charcoal, caoutchouc, catechu, wood oil, resin, natural varnish, bark, etc. Are found prepared and manufactured. The "lands" located outside the territorial limits of Pakistan has nothing to do with the land as mentioned in section 15. We may make it clear here at this juncture that section 15 also prescribes route authorized for the removal of timber or other forest produce subject to getting a pass by the Forest Officer which shall contain certain details regarding quantity and kind of timber but such pass can only be issued and could be utilized for the forest located in Pakistan because such passes are meant for frequent movement of the timber/forest produce within the country and by no stretch of imagination such pass can be made applicable to timber/forest product imported from any other country.
' We have also gone through the provisions as contained in section 16 which runs as follows:-- "16. Any person who contravenes the provisions of section 14 or section 15 shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."
A bare reading would reveal that conviction can be awarded only to a person (a) who contravenes the provisions as contained in sections 14 and 15 of the Regulation (b) and sentence upto six months or with fine upto Rs,500 can be awarded in case section 14 or 15 of the Regulation is violated, (c) No unfettered or arbitrary powers have been given to Forest Department to impose fine of Rs,3,000 per truck as it would be violative of the provisions as contained in section 16 of the Regulation which can only be invoked when some one contravenes sections 14 and 15 of the Regulation and imported timber duly cleared by Customs Authorities after levying of Customs Duty is beyond the scope of section 2(7), section 14 and section 15 of the Regulation.
9. We may mention here that the question of imposition of fine does not arise without invoking the prescribed procedure as envisaged under sections 20, 21 and 22 of the Regulation which deals with penalties and procedure. The provisions as contained in sections 15 and 16 cannot be read in isolation. The following sequence wise action is required to be initiated before any conviction could be awarded.
(a) Seizure of timber/forest produce.
(b) Report of such seizure to the Magistrate having jurisdiction to try the alleged offence.
(c) The Magistrate shall conduct the trial and property so seized shall be disposed of in accordance with law.
(d) In case of conviction all timber or other Forest produce in respect of which such offence has been committed shall be confiscated.
10. No doubt that fine can be imposed under sections 15 and 16 of the Regulation but this fine cannot be termed as "Royalty" which has several meanings (1) percentage or dues payable to landowners for mining rights, (2) sums paid for the use of a patent; (3) percentages paid to an author by a publisher on the sales of a book-pears. That "royalty" was in a case like the present, a payment to the owner of minerals for the right of working the same, and that the charging was based on produce. (Cf. Constitution of India, Sched.7, Item 23 Rajasthan Minor Mineral Concession Rules, 1955. Sethi Marblestone Industries v. The State of Rajastan, 1958 Raj. 140). It, therefore, appears that royalties are payments which the Government may demand for the appropriation of minerals, timber or other property belonging to the Government. Two important features of royalty have to be noticed; they are, that the payment is made for the privilege of removing the articles in proportion to the quantity removed, and the basis of payment is an agreement. (Cf.M.P. Land Revenue Code 1954 (2 of 1955) Surajain v. State of M.P. 1960 Madh. Pra.
129. "Royalty" on mines and minerals cannot be a fee but a levy of the nature of a tax ... Or import and would come under the definition, in Article 366, clause (28) of the Constitution. (Cf. Constitution of India, Articles 366(28) and 265, Bihar Minor Mineral Concession Rules, 1964), Laddu Mal and others v. The State of Bihar and others AIR 1965 Pat.
491.
A bare perusal of the above citations would indicate that royalty means a percentage which is required to be paid under any law or directive having the sanctity of law beyond it. In so far as "fine" is concerned it means originally a sum of money ordered to be given to someone by way of compounding. This word is now best known in connection with criminal offences, being an amount in money ordered to be paid by the delinquent or offender by way of penalty for an offence committed. It is, thus, clear that "royalty" and "fine" are not one and the same thing. For the purpose of royalty some specific directive should have been issued by the Provincial Government if so desired but under the garb of fine no royalty can be recovered.
11. We have also examined the applicability and scope of the Balochistan Forest Regulation, 1890 and thoroughly examined the preamble of the said Regulation to fine out its exact scope. The preamble is reproduced hereinbelow for ready reference:-- "A Regulation to declare the law relating to forests in Balochistan and amend the Balochistan Laws and Civil Justice (Regulation), 1890.
' Whereas it is expedient to declare the law relating of forests in (Balochistan) and amend the (Balochistan) Laws and Civil Justice (Regulations), 1890; it is hereby enacted as follows."
We have taken into consideration the preamble of the said Regulation because "a preamble is a legitimate aid in discovering the purpose of a statute. PLD 1963 Lah.
548. The preamble of a statute has been said to be a good means of finding out its meaning and intent PLD 1972 SC 279 and, as it were, a key to the understanding of it PLD 1951 Lah.
293. The study of preamble to a piece of legislation provides a clue to arrive at the intention of the law-maker. From apart preamble as a key to find out the intention of the Legislature the history of the legislation can also be looked into. The Court may properly be referred what is generally known as contemporaneous circumstances. Such circumstances include the history of the time existing when the law was enacted, the previous state of law, the evil intended to be corrected, the general policy of State or the established polity of the Legislature can also be considered. PLD 1986 Jour. 93, PLD 1981 FSC 23. It can be referred to in certain cases to ascertain the intention of the Legislature. It affords, in a case where the language of the enactment is not clear, "a key to the construction of the Statute" and can, therefore, be referred to for the purpose of finding out the object and the intention of the enactment. If, however, there is an inconsistency or conflict in the plain meaning of the Act and the Preamble, latter has to give in and the statute is to be construed according to its plain meaning. PLD 1966 BJ 30. A preamble sheds useful light as to what a statute is intended to achieve or remedy, it is true that the preamble cannot control, restrict, extend or otherwise add to or detract from a substantive provision of the statute, where it is expressed in clear unambiguous language. But there is weighty judicial authority in which preamble has been referred to, with advantage as an aid to the construction of the main provision of statutes. Preamble has long been accepted, at any rate, since the middle of the 19th Century, "as legitimate aid to construction".
There is a long array of authorities bearing on the point. In all these cases the broad principle was accepted that preamble is the key to a statue and affords a clue to its scope, particularly where the words construed by themselves are fairly capable of more than one construction. PLD 1969 Lah.
563. An interpretation, which is more in consonance with the avowed policy underlying the Act as decipherable from its title and preamble, is to be preferred to an interpretation, which is at tangent with its object. PLD 1972 Kar.
421. The preamble, however, cannot either restrict or extend the enacting parts when the language is not open to doubt. Rights whether public or private are not to be taken away or even hampered by mere implications from the language in the absence of express words used in the statute. PLD 1969 Lah. 908 + PLD 1952 Dacca 272. It does not affect unambiguous provision of statute. PLD 1962 Lah.
990. It may be, that sometimes, it is permissible to have recourse to the preamble, however, it has not the same weight as the enacting provision are themselves, it is only in exceptional cases where the enacting provisions are equivocal that the Courts sometimes refer to the preamble as an aid to finding out the true legislative intendment which the draftsman has failed to demonstrate. PLD 1975 SC 1. Though the preamble may be considered to be a key to the Act itself, it cannot normally be applied to explain the Act except where the provisions contained in its body are otherwise vague.
Where the language of the section is clear; the preamble cannot control its provisions. PLD 1950 Pesh.
22. It will not qualify enactment which in itself is clear and unambiguous. PLD 1953 Sindh 15. The preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt. PLD 1952 Dacca 425. In short the general rule is that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble, but when the object or meaning of certain provision is not clear then it is perfectly legitimate to have recourse to the preamble to explain it. PLD 1958 Pesh.
73. The preamble of the statute has been said to be a good means of finding out its meaning, and, as it were a key to the understanding of it. Of course it does not mean that if there are express provisions in the Act which go beyond what has been briefly stated in the preamble the express provision will not prevail. But the provision of the Act has to be read in conjunction with the preamble in order to arrive at a finding as to what was the purpose of the legislation. PLD 1966 Dacca 1.
We have taken into consideration the preamble for the simple reason that it is always considered a legitimate aid to find out the object and purpose of an enactment. From the preamble of this Regulation it is explicitly clear that it was enacted to amend the all other laws pertaining to Forest in Balochistan such as Civil Justice Regulation, 1890 and furthermore, the said Regulation was extended to Balochistan with a provision that the Provincial Government may by notification in the official gazette exempt any place in those territories from the operation of the whole or any part of this Regulation as provided in section 1 of the Regulation. It has been made clear that the Regulation was extended to Balochistan and as such it would be a misconceived notion that the Regulation was extended to any other territory outside Balochistan. It can be inferred safely that Afghanistan is a sovereign state and the question of applicability of this Regulation in Afghanistan does not arise.
In the light of what has been stated above, we are of the considered view that imposition of fine amounting to Rs,3,000 per truck by the Forest Department under the clog of "Royalty" is without any legal authority and in contravention of the relevant provisions of the Regulation. In such view of the matter the petition is accepted with the direction that all the amount received so far as fine be reimbursed subject to provision of receipt duly issued by the Forest Department at the time of realization of fine and a copy of challan and gate pass duly issued by the Customs Authorities and in future no such fine M could be imposed. The Provincial Government may, however, charge royalty or may levy any other tax if circumstances so justify. A copy of this judgment be sent to Central Board of Revenue and Collector Customs to examine the prevalent procedure and make it viable and transparent to avoid the possibility of any foul play or misappropriation. The Central Board of Revenue should further examine as to whether the prevalent procedure is free from flaw and proper import duty is being deposited.