1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner Raz Muhammad son of Taj Muhammad through instant Constitutional petition has sought following directions to respondent No, 4:--- ' "In view of the above facts, it is humbly prayed that the respondent No, 4 may kindly be directed to pay me the market rate of the seized goods, i,e, Rs,1,63,840. The petitioner reserves his right to argue his case personally before the Honourable High Court."
2. ' It is the case of petitioner that on 3-12-1997 following articles belonging to him were taken into possession by the Pishin Scouts of Frontier Corps:--
(a) T.V. Sony Made in Japan Size 21" each valuing Rs, 21,000 totalling Rs, 1,26,000:-
(b) Hurricane Lamps 8 cartons containing 96 No, Valuing Rs,290 each totalling Rs,27,840; ' It may be noted that Pishin Scouts of Frontier Corps have been vested with the powers of Customs Officers under the Customs Act, 1969. As per claim of the petitioner initially adjudicating authority, i,e,, Additional Collector Customs (F.C) outrightly directed confiscation of the case property, but the Collector Appeals while accepting the Appeal No, 116 of 1998, dated 30-6-1998 ordered for release of seized six number Sony 21" Colour T.V. And 8 dozens lanternes subject to payment of duty, taxes and fine which comes to Rs,68,611. Accordingly vide challan No, 1, dated 1-10-1998 he deposited the tax and the amount of fine with the National Bank of Pakistan. On receipt of the amount the Incharge of Ware House Frontier Corps vide letter No,1/6/95/SWH, dated 28-10-1998 wrote a letter to the Assistant Collector (Refund) Collectorare of Customs and Central Excise wherein release of T.Vs. And Lanterns (Hurricane Lamps) were acknowledged, but instead of directing their release, stated that an mount of Rs, 48,821 be refunded to the petitioner because these items have been disposed of and amount has been deposited into the Government treasury. As such the petitioner has approached to this Court for relief reproduced hereinabove.
3. ' Petitioner Raza Muhammad appeared in person in support of the petition and stated that seized goods, i,e,, T.Vs. And Hurricane lamps were not perishable items, therefore, the Incharge of the Ware House had no lawful authority to dispose them of. Without waiting the result of appeal filed by petitioner against confiscation order passed by Additional Collector Customs (F.C). He stated that this Court in an identical case "Muhammad Ismail v. I.-G.,F.0 and 3 others" (C.P No 56/1998) had ordered for the release of confiscated goods, therefore, he is also entitled for the same relief.
4. ' Syed Ayaz Zahoor, learned Deputy Attorney-General who appeared for the respondents stated that the petitioner had not obtained stay order from the appellate authority, therefore, after the order of confiscation by respondent No,4 Additional Collector Customs the authorities were within their lawful jurisdiction to dispose of the seized goods. According to him it was the duty of the petitioner to have informed at least to the respondent for filing of the appeal but as official respondents have no knowledge about pendency of the appeal, therefore, under a bona fide impression that matter has finally been decided by adjudicating authority, they ordered for the disposal of recovered goods.
5. ' We have heard the parties counsel and have also gone through the pleadings, i,e,, petition as well as the counter-affidavit filed on behalf of the respondents perusal whereof indicates that confiscated goods as per rules were allowed/auctioned/sold to the personnel of Frontier Corps, the price of which was to be assessed by the Customs Authorities, therefore, no violation on the part of respondents has been committed to warrant any legal action.At the out set it is to be noted that the adjudicating authority, i,e, Additional Collector Customs (Frontier Corps) respondent No, 1 had a legal obligation to give option to the owner of the goods for its redeeming subject to payment of tax and fine under section 181 of the Customs Act, which is reproduced herein below:--- ' "Section 181: Option to pay fine in lieu of confiscated goods.Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the Officer thinks fit; Explanation.---Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty might have been imposed in addition to the confiscation of goods: ' Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given: ' Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or a notification issued under section 16 or any other law for the time being in force."
6. ' It appears that in the confiscation order the respondent No, 4 did not adhere to above provisions of law and passed an order without lawful authority which was, however, rectified in appeal by the Collector- (Appeals) vide order dated 30-6-1998, therefore, the conclusion would be that respondent No, 4 cannot be benefited for an act which is contrary to aforesaid provisions of law. As the petitioner is subject to the Constitution of Islamic Republic of Pakistan therefore, he deserves to be dealt with in accordance with law and the authorities bestowed with jurisdiction to perform their functions are also required to act strictly within the provisions of law which have conferred jurisdiction upon them and in flagrantly violating any provisions of law cannot save such actions on the lame excuse of having passed such order bona fide. Reference in this behalf can be made to PLD 1987 SC 447, relevant para. Therefrom is reproduced herein below:- ' "I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court had ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its Constitutional jurisdiction is not justified and I feel that the judgments of this Court in the cases of Muhammad Hussain Munir (PLD 1974 SC 139) and Zulfiqar Khan Awan (1974 SCM R 530) have not been read in their proper context. It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter,. Has the jurisdiction to decide it 'rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly.
7. ' Accordingly when the Tribunal makes an error of law in deciding the matter before it, it goes outside the jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction.
8. ' It needs hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 it is the right of every individual to be dealt with in accordance with law. Where the law has not been correctly or properly observed a case for interference by the High Court in excise of its Constitutional Jurisdiction is made out."
9. ' Now turning towards the provisions of Section 201 of the Customs Act as well as the rules, i,e,, Customs General Order No, 5 of 1997 and Registration of Auctioneer and Auction Procedure Rules, 1980 to determine whether the sale/auction has, been done of the confiscated goods belonging to petitioner in accordance with these provisions or not. It would be appropriate to reproduce herein below section 201 of the Customs Act:-- ' Section 201: 'Procedure for Sale of Goods and Application of Sale Proceeds.--(1) Where any goods, other than confiscated goods, are to be sold under any provision of this Act, they shall be sold after due notice to the' owner by public auction or by tender or by private offer or, with the consent of the owner in writing, in any other manner.
(2) The sale proceeds shall be applied to the following purposes in their respective order, namely;
(a) first to pay the expenses of the sale;
(b) then to pay the freight or other charges, if any payable in respect, of the goods, if notice of such charges has been given to the person holding the goods in custody:
(c) then to pay the customs-duty, other taxes and dues payable to the Federal Government in respect of such goods;
(d) then to pay the charges due to the person holding such goods in custody.
(3) The balance, if any, shall be paid to the owner of the goods, provided he applies for it within six months of the sale of the goods or shows sufficient cause for not doing so."
10. ' In pursuance of above provisions the Central Board of Revenue had prescribed a procedure for auction of the confiscated goods in Rule 11 of the Registration of Auctioneers and Auction Procedure Rules, 1980. For the sake of convenience it is reproduced herein below:-- ' "All goods the aggregate, appraised value of the reserve price of which does not exceed Rs, 1,00,000 may be sold by public auction conducted Departmentally at the desertion of the Collector and all goods, the aggregate appraised value or the reserve price of which exceeds Rs, 1,00,000 shall be sold by public auction through the auctioneer."
11. ' In view of the above provision it is to be seen that in the assessment sheet annexed with the petition following value of T.V. And lantern was assessed to pay duty: T.V. Rs,91,469/-; Lantern Rs, 16,871, Total Rs,1,08,340 ' Although the petitioner has assessed the total value of his goods at Rs, 1,63,840 but even ignoring his statement as per the assessm ent of the Customs Department itself the value of the goods exceeds Rs,1,00,000, therefore, as per this aggregate price of the goods it was incumbent upon the respondents to have sold the goods by public auction after notice to petitioner. We would also like to note here that even if the aggregate value of the goods had been less than Rs,1,00,000 the Frontier Corps Authorities had no lawful authority to sell these confiscated articles without the prior concurrence of the Collector. Although the counter-affidavit no such order if obtained from the c Collector has been annexed nor copy of notice if served upon petitioner before auction of goods was produced. Thus, it is held that mandatory requirement of law was not fulfilled.
12. ' Syed Ayaz Zahoor, learned Deputy Attorney-General contended that as aggregate value of the confiscated goods was less than Rs, 1,00,000, therefore, according to the Customs General Order No, 5 of 1998 as amended vide letter dated 11-4-1995 the authorities of Frontier Corps were empowered to dispose of the goods amongst their personnel.
13. ' We are afraid, contentions raised by learned counsel is not correct because firstly as far as the CGO is concerned it cannot be substituted with the statutory provisions of the rules of auction referred to hereinabove; secondly even as per para. (V) of the CGO the consumer durable like T.Vs. V.C.Rs,, refrigerator, deep freezers, microwave ovens etc. And other goods when ripe for disposal, may be offered, for sale in the following order:-- ' Utility Stores Corporation of Pakistan; Canteen stores Department; ' Frontier Corps Balochistan;for disposal through their retail outlets.
14. ' In view of the above preference order noted in the CGO as far as disposal of the confiscated goods to the personnel of Frontier Corps is concerned that falls at Serial No,3, therefore, it was the duty of respondent to first of all have presented these goods to the Utility Stores Corporation of Pakistan, Canteen Stores Department. Admittedly in the instant case these goods were not delivered to the above Departments for disposal. It is also to be noted that it is not known whether even amongst the personnel of Frontier Corps the confiscated goods were sold through Departmental auction or arbitrarily because in the impugned letter dated 20-10-1998 except mentioning that Rs, 41,821 be refunded to petitioner, its details have not been mentioned. It means that the confiscated goods particularly 21" T.V. Have been handed over to the personnel of Frontier Corps as per admission of respondents in counter-affidavit even less than the value of Rs,8,000 comparing to the aggregate assessment of each T.V. Of Rs,18,294 as per the assessment sheet, therefore; it indicates that the sale of goods was not transparent and has not been conducted strictly in accordance with law referred hereinabove.
15. ' At this stage it may be noted that honourable Supreme Court in the case of "Obaidullah and 2 others v. I.-G.F.C., Quetta and 2 others" (1997 SCM R 1833) with regard to exercising jurisdiction by the authorities and conducting of auction made following observations:-- ' "However, it is disturbing to note that adjudicating authority by acting negligently has caused unnecessary confusion. We feel that authority vested with quasi-judicial authority connected with adjudication or determination of entitlement must be vigilant and cautious while exercising their powers/jurisdiction. It appears that Collector Appeals was completely oblivious of factual aspect and had decided the matter without properly scrutinising the case file which cannot be appreciated; ' It is quite manifest now, that goods (Banaspati Ghee) having been auctioned are not available with respondents. Therefore, no directions can be issued in vacuum or which may be incapable of implementation. In the peculiar circumstances, persistence of learned counsel for restoration of Banaspati Ghee does not appear to be reasonable. We may observe that normally there is considerable demand of Banaspati Ghee everywhere. Therefore, it is not understandable why during auction said commodity has fetched low price. The authorities are bound to ensure that auction proceedings are transparent, and invariably procure price fairly close to market value. The competent Authority in Customs Department it required to adopt adequate measures for obtaining better results so that consequential legal right or benefits accruing from such auction proceedings to either party is not jeopardized."
16. ' The above dictum of Honourable Supreme Court was followed by a Division Bench of this Court in which one of us (Mr. Justice Iftikhar Muhammad Chaudhary) was a party (C.P. No, 56/1998), We are constrained to observe that incidently in both the above judgments Inspector-General Frontier Corps and others were party before the Honourable Supreme Court and binding observations by Honouable Supreme Court were passed against them, but despite of that they are even now disposing of the confiscated properties contrary to the statutory provisions in highly arbitrary manner, therefore, their such conduct is not appreciable. However, we hope that in future the relevant provisions of law as well as the dictum of superior Courts will be strictly adhered to by them.
17. Before parting with the judgment we would also like to observe that in the administration of justice it is the duty of the superior Courts to ensure that not only the justice has been done, but it should be seen that justice has been done as in the instant case that authorities of the Frontier Corps acting under the Customs Act, 1969 themselves are assessing Rs,68,611 to be the amount of the duty and fine, but instead of refunding the confiscated goods, i,e,, 6 T.Vs. And 96 Hurricane Lamps, he is being asked to receive only Rs,48,821. Thus in this manner no justice is being done with the petitioner, therefore, it has necessitated to issue the writ for redressal of his grievance.
18. ' As it has been observed hereinabove that petitioner has assessed the value of his goods to be Rs,1,63,840 but in view of the facts and circumstances this relief cannot be allowed to him, as such in exercise of inherent jurisdiction the relief is modified and instead of getting the amount it is held that peitioner is entitled to take back the goods which shall be arranged by the respondents collectively and jointly, if not available with them from the open market.
19. ' Thus, for the foregoing reasons writ is issued, the respondents are directed to hand over 6 Sony Colour T. Vs. Japan made 21" each and 96 lanternes to the petitioner.