JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR · Sultan Muhammad vs. The Collector Customs, Peshawar...
Transcript of JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR · Sultan Muhammad vs. The Collector Customs, Peshawar...
JUDGMENT SHEET
PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT
Custom Reference No.26/2010.
JUDGMENT
Date of hearing……………20-11-2014…..…………
Petitioner(s) by Mr. Ajoon Khan, Advocate.
Respondent(s) by Mr. Muhammad Ali, Advocate.
YAHYA AFRIDI,J.- Through this single judgment,
this Court proposes to dispose of nine Custom
References, as common questions of law are
involved therein. The particulars of the said
References are as follows:-
i. Custom Reference No.26/2010
(Sultan Muhammad vs. The
Collector Customs, Peshawar and
another).
ii. Custom Reference No. 39/2011
(Abdul Waheed Khan vs. The The
Collector Customs and others).
iii. Custom Reference No. 33/2012
(Rafiullah and another vs. The
Collector Custom).
iv. Custom Reference No. 43/2013
(Sadaqat Ali and another vs. The
Collector Customs, Peshawar).
v. Custom Reference No. 44/2013
(Muhammad Fayaz and another
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
2
vs. The Collector Custom,
Peshawar).
vi. Custom Reference No. 30/2013
(Anwar Hayat vs. The Collector
Custom, Peshawar).
vii. Custom Reference No. 18/2013
(Collector of Customs vs. Haji
Shah Muhammad and others).
viii. Custom Reference No. 23-P/2013
(The Collector of Customs vs.
Nazakat Khan).
ix. Custom Reference No. 7/2014
(The Collector of Customs vs.
Muhammad Sarwar and
another).
2. The peculiar facts leading to the filing of
aforementioned Custom References are as under:
i. Sultan Muhammad vs. The Collector
Customs, Peshawar and another (Custom
Reference No. 26/2010).
On 3.3.2008, the Customs Anti-Smuggling
Unit, Kohat intercepted a Toyota Hilux Surf bearing
registration No. ZBT-3714 near District Jail, Kohat.
On demand, the petitioner produced photocopy of
certificate of vehicle registration dated 18.5.1994
and bill of entry No. 370/94 dated 1.7.1994, which
were suspected to be forged. The vehicle was
detained under Section 17 of the Customs Act, 1969
and it was examined through Forensic Science
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
3
Laboratory, Peshawar (“FSL), who submitted the
following report:
Before Chemical treatment After Chemical treatment
Chassis No. LN1309-0092719 Chassis No. Piece measuring 9” x
4½” has been welded.
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that:
The original chassis number has
been cut at the site of the chassis number
and another metallic piece measuring 9” x
4½” has been welded refitted which bears
the following number:
“LN1309-0092719”
After receipt of FSL report, a show cause
notice was served upon the petitioner and the matter
was placed before the Additional Collector Customs,
Peshawar for adjudication, who vide order dated
24.4.2008, outrightly confiscated the vehicle. Being
aggrieved, the petitioner filed appeal before the
Collectorate of Customs, Sales Tax & Federal
Excise (Appeals), Peshawar, which was dismissed
vide order dated 16.6.2008. Dissatisfied with the
above said order, the petitioner filed second appeal
before the Customs, Federal Excise & Sales Tax
Appellate Tribunal, Peshawar Bench, which too was
dismissed and the orders of confiscation of vehicle
were upheld vide order dated 17.11.2009.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
4
ii. Abdul Waheed Khan vs. The Collector
Customs and others (Custom Reference
No. 39/2011).
On 25.5.2010, the Staff of Customs
Intelligence & Special Checking Squad, Peshawar
intercepted a non-duty paid/smuggled Toyota
Corolla Car bearing registration No. SAC-333 near
Jan Plaza, Peshawar. On demand, the petitioner did
not produce any documents to prove the legal import
of vehicle. Thus, the vehicle was detained under
Section 17 of the Customs Act, 1969 and it was
examined through FSL, Peshawar, who submitted
the following report:
Before Chemical treatment After Chemical treatment
Ch: EE90-0036992 Welded and Refitted Piece
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that welded and refitted chassis
number piece bears the following number:
“EE90-0036992”
After receipt of FSL report, a show cause
notice was served upon the petitioner and the case
was placed before the Deputy Collector MCC,
Peshawar, who vide order dated 13.8.2010,
outrightly confiscated the vehicle. Being aggrieved,
the petitioner filed appeal before the Collectorate of
Customs (Appeals), Peshawar, which was accepted
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
5
vide order dated 2.11.2010 and it was ordered that
the vehicle seized/confiscated be released to its
rightful owner. Thereafter, the respondents-
department filed appeal before the Customs
Appellate Tribunal, Peshawar Bench, who vide
order dated 7.3.2011 accepted the same and
confiscated the vehicle in question.
iii. Rafiullah and another vs. The Collector
Custom (Custom Reference No.
33/2012).
On 12.10.2010, the Customs Anti-
Smuggling Unit, D.I.Khan intercepted a non-duty
paid Isuzu Trooper Jeep bearing fake registration
No. IDB-2703. On demand, the petitioner did not
produce any documents regarding legal import of
the vehicle. Thus, the vehicle was detained under
Section 17 of the Customs Act, 1969 and it was
examined through FSL, Peshawar, who submitted
the following report:
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No. JACUBS522G4497824 Welded & refitted chassis frame
piece.
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that:
Welded and refitted chassis frame
piece measuring 29” x 6” bears the
following number:
“JACUBS522G4497824”
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
6
After receipt of FSL report, a show cause
notice was served upon the petitioner and the matter
was placed before the Additional Collector-II, MCC,
Peshawar for adjudication, who vide order dated
6.4.2011, confiscated the vehicle. Being aggrieved,
the petitioner filed appeal before the Collectorate of
Customs (Appeals), Peshawar, which was dismissed
vide order dated 26.8.2011. Dissatisfied with the
above said order, the petitioner filed second appeal
before the Customs, Appellate Tribunal, Peshawar
Bench, which too was dismissed and the orders of
confiscation of vehicle were upheld vide order dated
10.7.2012.
iv. Sadaqat Ali and another vs. The Collector
Customs, Peshawar (Custom Reference
No. 43/2013).
On 20.9.2011, the Customs Staff of Anti-
Smuggling Unit, Abbottabad intercepted a non-duty
paid Toyota Hiace Van bearing registration No. JF-
4108-Sindh at Muzaffar Abad Road. On demand,
the petitioners produced photocopy of registration
book but did not produce any other documents
regarding legal import/lawful possession of the
vehicle. Thus, the vehicle was detained under
Section 17 of the Customs Act, 1969 and it was
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
7
examined through FSL, Peshawar, who submitted
the following report:
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No. 0004998 Chassis No.0004998
Opinion
Chemical treatment of the chassis
number of the Toyota Hiace Van
Registration No. JF-4198 in the case as
subject has revealed that its chassis
number place has been cut and another
iron piece bearing No. 0004998 has been
welded on its chassis number place.
After receipt of FSL report, the vehicle was
seized and the matter was placed before Additional
Collector-II MCC, Peshawar for adjudication, who
vide order 30.11.2011 confiscated the vehicle. Being
aggrieved, the petitioners filed appeal before the
Collectorate of Customs (Appeals), Peshawar, which
was dismissed vide order dated 24.2.2012.
Dissatisfied with the above said order, the
petitioners filed appeal before the Customs,
Appellate Tribunal, Peshawar Bench, which too was
dismissed and the orders of confiscation of vehicle
were upheld vide order dated 16.4.2013.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
8
v. Muhammad Fayaz and another vs. The
Collector Custom, Peshawar (Custom
Reference No. 44/2013).
On 16.6.2011, the Customs Mobile Squad,
Abbottabad, intercepted a Toyota Hiace Van bearing
Registration NO. PE-2028/Sindh near CMH
Abbottabad. On demand, the petitioners did not
produce any documents to prove legal import/lawful
possession of the vehicle. Thus, the vehicle was
detained under Section 17 of the Customs Act, 1969
and it was examined through FSL, Peshawar, who
submitted the following report:
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No. LH114-0012595 Chassis No. Welded and
Refitted Piece
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that:
Welded and Refitted Chassis Sheet
piece measuring 12” x 3”1-2 bears the
following number.
“LH114-0012595”
After receipt of FSL report, the vehicle was
seized and the matter was placed before the
Additional Collector-II, MCC, Peshawar for
adjudication, who vide order dated 27.10.2011,
confiscated the vehicle. Being aggrieved, the
petitioners filed appeal before the Collectorate of
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
9
Customs (Appeals), Peshawar, which was dismissed
vide order dated 24.2.2012. Dissatisfied with the
above said order, the petitioners filed second appeal
before the Customs, Appellate Tribunal, Peshawar
Bench, which too was dismissed and orders of
confiscation of vehicle were upheld vide order dated
16.4.2013.
vi. Anwar Hayat vs. The Collector Custom,
Peshawar (Custom Reference No. 30/2013)
On 12.7.2012, the Staff of Intelligence &
Special Checking Squad, Peshawar, intercepted a
non-duty paid Toyota Land Cruiser (Prado) Jeep
bearing registration No. JSA-162/Jaffarabad at
Motorway Peshawar. On demand, the petitioners did
not produce any documents to prove legal import of
the vehicle. Thus, the vehicle was detained under
Section 17 of the Customs Act, 1969 and it was
examined through FSL, Peshawar, who submitted
the following report:
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No. VZJ95-0009762 Chassis No. welded & refitted
piece.
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that welded and refitted chassis
frame piece measuring 12” x 4/1-2” bears
the following number:
“VZJ95-0009762”
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
10
After receipt of FSL report, a show cause
notice was served upon the petitioners and the
matter was placed before the Additional Collector-
II, MCC, Peshawar for adjudication, who vide order
dated 12.7.2012, outrightly confiscated the vehicle.
Being aggrieved, the petitioners filed appeal before
the Customs Appellate Tribunal, Peshawar Bench,
which was dismissed and the order of confiscation
of vehicle was upheld vide order dated 23.4.2013.
vii. Collector of Customs vs. Haji Shah
Muhammad and others (Custom Reference
No. 18/2013).
On 7.8.2011, the Staff of Customs Mobile
Squad No.2 Peshawar intercepted a Daimler Benz
bearing registration No. TLN-221 at Kacha Garhi.
On demand, the respondents produced registration
book and bill of entry. It is evident from the bill of
entry that three units old and used construction
machinery Dumper Trucks (Daimler Benz) were
imported while the vehicle in question is a Prime
Mover (22 wheeler trailer) and the chassis number
was also found suspected. Thus, the vehicle was
examined through FSL, Peshawar, who submitted
the following report:
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
11
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No.36145610833488 Chassis No. The original
chassis number filled with weld
material.
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that: The original Chassis number
filled with weld material and not
decipherable. The present chassis number
is Re-stamped one.
After receipt of FSL report, the vehicle was
seized and the matter was placed before Additional
Collector-II, MCC, Peshawar, who vide order dated
1.11.2011, outrightly confiscated the vehicle but
returned the trailer to its rightful owner. Feeling
aggrieved, the respondents filed appeal before the
Collectorate of Customs (Appeals), Peshawar, which
was dismissed vide order dated 24.6.2012.
Dissatisfied with the above said order, the
respondents filed second appeal before the Customs,
Appellate Tribunal, Peshawar Bench, which was
accepted vide order dated 12.11.2012 and the
vehicle in question was ordered to be released
unconditionally to the respondents.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
12
viii. The Collector of Customs vs. Nazakat Khan
(ustom Reference No. 23-P/2013)
On 21.6.2011, the Staff of Customs
Mobile Squad, Abbottabad, intercepted a Toyota
Hiace Van bearing registration No. FDQ-9429 at
Goharabad Havelian. On demand, the driver of the
vehicle Rafique Mir S/o Siddique Mir produced a
registration book but did not produce any documents
to prove legal import of the vehicle. Thus, the
vehicle was detained under Section 17 of the
Customs Act, 1969 and it was examined through
FSL, Peshawar, who submitted the following report:
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No.LH114-0012034 Chassis No. The original
chassis Number filed with weld
material
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that: The original chassis number
filed with weld material and not
decipherable. The present chassis number
is restamped one.
After receipt of FSL report, a show cause
notice was served upon the respondent and the
matter was placed before the Additional Collector-
II, MCC, Peshawar for adjudication, who vide order
dated 13.9.2011, confiscated the vehicle. Being
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
13
aggrieved, the respondent filed appeal before the
Collector Customs (Appeals), Peshawar, which was
dismissed vide order dated 2.12.2011. Dissatisfied
with the above said order, the respondent filed
second appeal before the Customs Appellate
Tribunal, Peshawar Bench, which was accepted vide
order dated 2.11.2012 and the vehicle in question
was ordered to be released to the respondent.
ix. The Collector of Customs vs. Muhammad
Sarwar and another (Custom Reference No.
7/2014).
On 26.1.2010, the Superintendent
(Customs Preventive Circle, D.I.Khan) intercepted a
Toyota Crown Super Saloon bearing registration No.
LWN-5449 at Darband Road, D.I.Khan. On
demand, the respondents produced a registration
book showing description of the vehicle as “Toyota
Corolla Motor” while physically, it was a “Toyota
Crown Super Saloon”. Thus, the vehicle was
detained under Section 17 of the Customs Act, 1969
and it was examined through FSL, Peshawar, who
submitted the following report:
No’s Before Chemical treatment No’s After Chemical treatment
Chassis No.MS65-022990 Chassis No. Re-stamped one.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
14
Opinion
Chemical examination of the
chassis number of the vehicle in question
revealed that:
The original chassis number filled
with weld material and not decipherable.
The present chassis number is out of place
and re-stamped one.
After receipt of FSL report, a show cause
notice was served upon the respondents and the
matter was placed before the Additional Collector-
II, MCC, Peshawar for adjudication, who vide order
dated 25.3.2011, confiscated the vehicle. Being
aggrieved, the respondents filed appeal before the
Collector Customs (Appeals), Peshawar, which was
dismissed vide order dated 30.5.2011. Dissatisfied
with the above said order, the respondents filed
second appeal before the Customs Appellate
Tribunal, Peshawar Bench, who vide order dated
2.12.2013 passed the following order:-
“In view of the fore-stated
position, which fits in, in the
facts of the present case with
no other chassis number found
but with an alleged welding
and re-stamping, I hereby
allow this appeal and set aside
the impugned Order-in-Appeal
No. 107 of 2011 dated
30.5.2011 and order release of
the vehicle in question,
however, the learned counsel
during arguments admitted
that the vehicle is of model
1975 which body was much
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
15
rustly, therefore, the appellant
purchased another body and
affixed on the vehicle in
question, for which he could
not produce any import
documents of the replaced
body, therefore, the leviable
duty and taxes be charged
from the appellant in addition
to payment of 10% redemption
fine of the customs value of
the replaced body. The appeal
stands disposed of
accordingly”.
3. Before this Court renders its opinion on the
questions of law raised in the instant References, it
would be appropriate to consider the precedents of
the superior Courts on the core issue involved in the
present References:
“What should be the ultimate
result, when an imported
vehicle, which on suspicion of
being non-duty paid, is seized by
custom staff and for verification
sent for chemical examination,
the report whereof, confirms
that the chassis number of the
seized vehicle was
manipulated”.
4. In this regard, this Court would seek guidance
from the principles laid down on the matter by the
Apex Court, which in some of the leading cases are
as follows:
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
16
Muhammad Aftab Khan’s case, decided on
25.6.2002 (Civil Petition No. 1809/L of 2002).
The Apex Court, after considering the matter,
recorded its finding on the forensic report in terms
that:-
“The Chemical treatment of the Chassis
number of the Hino Prime Mover Regd. No.
JA-2796 in the case cited as subject has
revealed that its Chassis number Plate has
been cut and another iron sheet bearing No.
FD178B-11486 has been welded on its
Chassis number place.
The other argument of the learned
that the petitioners should have been
associated in the examination process is also
devoid of any force. This is a mechanical
process which is conducted by the experts. A
presumption of truth is attached to the report
of the Forensic Laboratory, being an official
act. As apparent from the preceding
paragraphs the chassis number plate has
been cut and another iron sheet bearing No.
FD-178B-11486 has been welded on its
chassis number place. This clearly
demonstrates that the number of the vehicle
has been manipulated.
(Emphasis provided)
Zarshad’s case decided on 8.4.2003 (2006 SCMR
973)
The Apex Court, after considering the matter,
recorded its finding on the forensic report in terms
that:-
“The Forensic Science Laboratory after
examining the vehicle prepared report on the
even date but signed it on 27th July, 2000
confirming that “a piece of chassis frame
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
17
bearing the present chassis number is
replaced and welded”……..
“In our opinion the learned High Court
instead of substituting findings of facts
recorded by the forums under the Customs
Act if was of the opinion that without
recording evidence report of Forensic
Science Laboratory was not admissible then
instead of deciding the case finally it should
have remanded it to the Tribunal for
recording evidence and to decide the case.
But the learned High Court has exceeded its
jurisdiction by deciding appeal on facts, thus,
the impugned judgment is not sustainable”.
“In view of above legal position both the
learned counsel agreed for setting aside of
the impugned judgment and remanding the
case to the Appellate Tribunal with direction
to it to record evidence of the representative
of Forensic Science Laboratory to prove
contents of the report, dated 27.7.2000 and
also provide opportunity to respondents to
cross examine him and then decide the
appeal of respondents in the light of material
available on record”.
(Emphasis provided)
Fahim Khan’s case, decided on 27.2.2006 (Civil
Petition No. 117 of 2006).
The Apex Court, after considering the matter,
recorded its finding in terms that:-
“We do not find any legal or factual infirmity
considering that no other evidence was
produced by the petitioner to show that the
chassis number of the car which was refitted
in the vehicle in dispute was not one on
which customs duty was paid while one
legally imported was on the road or under
disuse as per record of Excise and Taxation
Department. Consequently, this petition has
no merit, hence leave to appeal is declined
and the petition is dismissed”.
(Emphasis provided)
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
18
Ch. Maqbool Ahmad’s case decided on 24.9.2008
(2009 SCMR 226)
The Apex Court, after considering the matter,
recorded its finding on the forensic report in terms
that:-
“All the three Laboratories in their reports
had concluded that the chassis frame was cut
and welded. Keeping in view the request of
the petitioner, report of FSL, Peshawar was
obtained after associating him in the said
proceedings. No objection was filed by the
petitioner in regard the report obtained from
FSL, Peshawar. The contention that the
objections had been raised in regard to the
said report but the same were not recorded, is
contrary to the record. It thus stood
established that the chassis frame was found
cut and welded. It could, therefore, be safely
concluded that the particulars entered in the
registration book related to another vehicle
especially when the said particulars did not
tally with the model etc. of the vehicle
recovered from the petitioner. Obviously, the
chassis frame of the smuggled vehicle was
manipulated to give it the cover of an older
different model vehicle entered in the
registration documents. It was also urged
that the expert ought to have been
summoned so that petitioner could cross-
examine him in regard to his opinion/report.
Such a request was made before the Tribunal
as well which was correctly declined because
three different experts had given the same
opinion. Even otherwise, presumption of
truth is attached to the reports of the FSL
laboratories. The contention of the learned
counsel for the petitioner that the petitioner
is a bonafide fourth purchaser and the
vehicle may be released on payment of duties
and taxes on the payment of 30% of the
duties and taxes under S.R.O. No.
179(1)/2006, dated 2-3-2006, has also no
force. Such a request was made before the
Honourable High Court as well which was
lawfully declined because it is case involving
a smuggled vehicle with tampered chassis
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
19
frame and not a case of a smuggled vehicle
with non-tampered chassis frame. Outright
confiscation of the vehicle through order-in-
original under clause 89 of section 156(1) of
the Customs Act, 1969 read with S.R.O. No.
574(1)/2005, dated 6-6-2005 was, therefore,
lawfully passed and did not suffer from any
illegality. Learned Judge of the High Court
correctly answered the proposed question
No.1 in the negative and dismissed the
Reference Application”.
(Emphasis provided)
Muhammad Jamal Rizvi’s case decided on
5.7.2011 (2012 SCMR 169)
The Apex Court, after considering the matter,
recorded its finding in terms that:-
“When asked, learned counsel had no reply
to furnish on the observation so made;
however, he admitted that the make, model,
Engine number and other material about the
vehicle in question were same as were in the
documents noted hereinabove.
Scanning of the record reflects that the
concerned officers of the Directorate,
Customs Intelligence, after transfer of the
vehicle in question removed its original
number plates bearing NO. BB-7271 and
affixed official number plates bearing No.
GP 8695 and started using the same
unauthorisedly. This fact surfaced when the
Nazir of the High Court visited the site in the
office of the Directorate where not only the
vehicle in question was found; another
vehicle, as well, was found parked with the
same official number plate and on enquiry
no satisfactory reply could be furnished by
the Customs officials”.
(Emphasis provided)
Saleh Jan’s case, decided on 13.6.2013 (Civil
Appeal No. 58-P of 2010).
The Apex Court, after considering the matter,
recorded its finding in terms that:-
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
20
“In our opinion once a valid registration
book had been produced by the Respondent
to support his contention that the vehicle was
imported according to law, then it was
incumbent upon the authorities to have
summoned the entire record from the port
authorities etc as well as motor registration
authority in order to establish the origin of
the vehicle in question which they failed to
do. It appears that some tampering was done
to the chassis number of the vehicle as a
result of which it became defaced and this
perhaps happened when the vehicle was in
the use of the custom authorities.
In view of the foregoing
circumstances, we would conclude that it
could not be established by the custom
authorities that the vehicle was a smuggled
one. Hence we do not find any defect or
material irregularity in the conclusions
reached by the Learned lower forums below
so as to convince us to interference in the
matter. Consequently this Appeal is
dismissed”.
(Emphasis provided)
Khalil Muhammad’s case, decided on 12.2.2013
(Civil Petition No. 1788 of 2012).
The Apex Court, after considering the matter,
recorded its finding on the forensic report in terms
that:-
“Reports of the FSL in Peshawar and
Islamabad suggest that “tempering” has
taken place with the chassis number, while
the learned counsel for the petitioner has not
been able to convince the Court on reasons
necessitating changes in the chassis number
or the frame of the vehicle. In addition, the
petitioner could not submit before this Court
permission of the competent authorities in
the Excise and Taxation department for
changing the chassis number or welding a
number different than the original number
engraved on the frame”.
(Emphasis provided)
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
21
5. Taking guidance from the decisions of the
superior Courts and the rampant abuse of obtaining
documents for vehicles, having “tampered” chassis
numbers from the Motor Vehicle Authorities,
prompted the Federal Government to introduce strict
measures, including prohibition of auction of
vehicles having “tampered” chassis numbers. The
most prominent being Circular No. 10(1)AS/2004
dated 11.12.2007, which read as under:-
“GOVERNMENT OF PAKISTAN
REVENUE DIVISION
FEDERAL BOARD OF REVENUE.
C.No.10(1)AS/2004 Islamabad, the 11th December,
2007
To,
The Collector of Customs,
(Preventive),
Custom House,
Karachi.
The Collector of Customs,
Port Qasim,
Karachi.
The Collector of Customs,
Custom House,
Rawalpindi/Peshawar/Hyderabad/
Multan/Sambrial/Faisalabad/Lahore/
Quetta.
Subject: DISPOSAL OF TAMPERED
CONFISCATED VEHICLES.
I am directed to enclose a copy of Cabinet
Division’s O.M. No. 36/P-11/2006 (ECC-44/3/2006),
dated 29.11.2007 on the subject noted above and to
state that steps taken towards the implementation of
ECC decision in case No. ECC-44/3/2006, dated
03.03.2006 on disposal of confiscated tampered
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
22
vehicles may be communicate to the Board. The
decision is reproduced as under:-
(i) Buses and vans may be utilized for
pick and drop of officers and staff
working in CBR headquarters and its
field formations;
(ii) Other vehicles (cars, jeeps etc) may be
sold to the Government/semi-
Government departments on the
highest prices offered by them; and
(iii)Any left over vehicles may be offered
free of cost to the Government owned
educational, medical and scientific
institutions, as recommended by the
respective Ministries, on first come
first served basis.
2. It is requested to provide up-to-date data
about disposal of confiscated tampered vehicles
since the decision bearing No. 44/3/2006, dated
03.03.2007 was made by the ECC. All those vehicles
which may have been sold at token/nominal price as
consequence of Board’s decisions may also be
included.
Sd/--
(Dr. Muhammad Adnan Akram)
Second Secretary (Anti Smuggling & Coord)”
(Emphasis Provided)
In addition to the above, another S.R.O.
568(1)/2008, dated 11-6-2008 was also issued,
which read as under:-
“The smuggled vehicles, other than
having tampered engine or chassis
numbers, which had been seized or
confiscated on or before the 31st
May, 2008, shall also be allowed
release on payment of leviable
amount of duties and taxes in
addition to redemption fine which
shall be equal to thirty per cent of
the CIF value thereof, provided that
the customs-duty, taxes, fine and
penalty etc. so levied thereon are
paid on or before the 30th June,
2008” (underline supplied)
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
23
The above S.R.Os, clearly indicates the
unflinching policy of the Federal Government
(“Policy”) not to allow/release, under any
circumstances, those vehicles having a “tampered”
engine or chassis numbers.
6. Moving to the common “questions of law”
raised in the instant nine Custom References, the
same are as under:-
1) Whether welding and refitted of old
chassis plate of the same vehicle is
having a penal provision in absence of
any proof of smuggling?
2) Whether there is any section of law in
the Custom Act to show that if any
vehicle had a welded and refitted
chassis number should be smuggled
and non-duty paid?
3) Whether FSL report is not sufficient
proof that the vehicle is a tampered
vehicle?
4) Whether the said vehicle come under
section 2(s) of the Custom Act after
providing the registration document?
5) Whether the change of engine of
vehicle with permission of MRA is not
permissible under law and what would
be its consequences on fate of case?
6) Whether by producing the relevant
documents and explanation of the
accident of the vehicle, the owner has
been able to discharge his onus in
terms of Section 187 of the Customs
Act?
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
24
7) Whether the custom authority has
jurisdiction to confiscate the local
purchase vehicle from the authorized
dealer of the country?
8) Whether the custom authority has
jurisdiction to seize and confiscate
locally registered vehicle registered by
the competent authority after requisite
requirement?
9) Whether the Custom authority has
jurisdiction to seize/confiscate the
vehicle which is seized by
unauthorized person?
7. On reviewing the findings recorded by the
Apex Court in the aforementioned judgments and
the Policy of the Federal Government on the matter,
it would be safe to render our opinion on the
“questions of law”, raised and stated herein above,
in terms that:
i. Revenue is only authorized to seize
and confiscate imported vehicles,
which are non-duty paid.
ii. Locally manufactured vehicles are
beyond the legal mandate of the
Revenue under the Act.
iii. A presumption of truth is attached to
the report of Forensic Science
Laboratory being a result of an
official act.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
25
iv. In case, serious infirmities appear on
the record, which cast reasonable
doubt on the presumption of truth
attached to the FSL report, evidence
may be recorded of the official, who
carried out the forensic examination
and rendered the report, providing
opportunity of cross-examination to
the owner of the vehicle OR direct
the re-examination of the vehicle by
another FSL.
v. In case of repeated forensic
examinations confirms tampering of
the chassis number of the vehicle,
then there is no requirement for the
“maker” of the report to be
summoned and cross-examined by
the owner.
vi. “Tampering” of chassis number of
the vehicle, include any alteration of
the original chassis number of the
vehicle, whether manual or
otherwise OR cutting a piece of the
frame and re-welding another piece
thereon OR chassis number filled
with welding material and then
restamped.
vii. Even a positive FSL report of a
vehicle in use of the custom
authorities would create a doubt on
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
26
the presumption of truth altered to
the said report that the tampering
took place when the vehicle was
being used by the custom authorities.
viii. Tampering of chassis number as a
result of an accident of the vehicle
could only be a valid ground, if the
same was reported to and confirmed
by the Motor Vehicle Authorities
under Section 33 of the Motor
Vehicle Ordinance, 1965.
ix. Public auction of vehicles having
tampered chassis have been
prohibited and are liable to be
confiscated.
x. The confiscated vehicles having
tampered chassis numbers are only
allowed for use by Government
departments on payment of nominal/
token prices.
xi. Section 6 read with Section 7 of the
Customs Act, 1969 clearly provides
for all officers of Central Excise,
Police and the Civil Armed Forces to
assist the Custom Officers for
carrying out their functions under
the Act. In this regard, even if the
initial detection of the vehicle is
carried out by any other person and
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
27
brought to the attention of the
customs officer, who actually seized
the goods and prepared the recovery
memo, substantial compliance of the
provisions of the Act, is considered
fulfilled. In similar circumstances,
Minhajuddin’s case (2011 PTD 862)
decided by this Court, which was
confirmed by the Supreme Court,
reiterated the said principle in terms
that:
“After realizing the presence
of foreign currency, the ANF
staff referred the petitioner to
the Customs Officials present
on the adjacent counter who
under the Act of 1969
completed the process of
recovery and then registered
the case under the relevant
provisions of Customs Act.
The first detection by the
ANF staff has never been
denied by the Customs
officials as this very fact has
been brought in the original
order of confiscation,
recovery memo that the
recovery of foreign currency
was effected by the Customs
Authorities with the help of
officials of ANF. So, this fact
has been established on the
record that the recovery was
effected from the petitioner
by the Customs officials and
not by the ANF staff, so, the
question of application of
section 6 of the Act, 1969
does not arise in the
circumstances of the case”.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
28
On reviewing the facts of the aforementioned
References and this Court’s opinion on “questions
of law” enunciated herein, it is noted that nine
References can be divided into two categories of
References:
First, Reference Nos. I to VI, where the
worthy Appellate Tribunal has not allowed the
release of the vehicles to its owners, as per
confirmed FSL reports of the “tampered” chassis or
engine numbers of the vehicles. Thus, the impugned
decision requires no interference, being in accord
with the settled principles explained, hereinabove.
Second, Reference Nos. VII to IX, wherein
the worthy Tribunal has released the vehicles,
despite clear FSL reports of “tampered” chassis
numbers of the said vehicles. These decisions
warrant correction. Any manipulation of the chassis
number of the vehicle, including he cutting of
chassis plate, the removal thereof and welding
another piece having the chassis number thereon or
any other mode, whereby the original chassis
number of the vehicle is altered, amounts to
“tampering”. Especially, when the owner was
unable to explain and justify the said manipulation
of the chassis number.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
29
Presenting documentation, relating to the said
“tampered” vehicle from the Motor Vehicle
Authority, without specific approval for the
alteration in the chassis of engine number, as
envisaged under Section 33 of the Motor Vehicle
Ordinance, 1965 (“Ordinance”) would be of no
legal avail.
Moreover, allowing a vehicle, having
“tampered” chassis number, even with registration
book from the Motor Vehicle
Authority, would surely offend and abuse the
provisions of the Act/Ordinance and the Policy of
the Federal Government reflected in Circular No.
10(1)AS/2004 dated 11.12.2007 read with SRO No.
568(1)/2008, dated 11-6-2008.
8. Before parting with this judgment, it would be
important to note that there are judgments of this
Court which are at variance with the judgments of
the Apex Court, discussed hereinabove. In view of
the clear principles laid down by the Apex Court, it
would not appropriate for this Court to follow the
contrary views held in the case decided by this Court
as is the command and mandate of Article 189 of the
Constitution of Islamic Republic of Pakistan, 1973
(“Constitution”).
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
30
9. Accordingly, for the reasons stated herein
above, this Court holds that:
i. Custom Reference No.26/2010
(Sultan Muhammad vs. The
Collector Customs, Peshawar and
another) is answered in the
Negative.
ii. Custom Reference No. 39/2011
(Abdul Waheed Khan vs. The The
Collector Customs and others is
answered in the Negative.
iii. Custom Reference No. 33/2012
(Rafiullah and another vs. The
Collector Custom) is answered in
the Negative.
iv. Custom Reference No. 43/2013
(Sadaqat Ali and another vs. The
Collector Customs, Peshawar) is
answered in the Negative.
v. Custom Reference No. 44/2013
(Muhammad Fayaz and another
vs. The Collector Custom,
Peshawar) is answered in the
Negative.
vi. Custom Reference No. 30/2013
(Anwar Hayat vs. The Collector
Custom, Peshawar) is answered in
the Negative.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
31
vii. Custom Reference No. 18/2013
(Collector of Customs vs. Haji
Shah Muhammad and others) is
answered in the Positive.
viii. Custom Reference No. 23-P/2013
(The Collector of Customs vs.
Nazakat Khan) is answered in the
Positive.
ix. Custom Reference No. 7/2014
(The Collector of Customs vs.
Muhammad Sarwar and another)
is answered in the Positive.
The office is directed to send copy of this
judgment under seal of the Court to the Customs,
Federal Excise and Sales Tax Appellate Tribunal,
Peshawar.
Dated: 20.11.2014
JUDGE
JUDGE
*Nawab Shah*
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
32
JUDGMENT SHEET
PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT
Custom Reference No.33/2012.
JUDGMENT
Date of hearing……………20-11-2014…..…………
Petitioner(s)…………………..…….……………….
Respondent(s)……………………….………………
YAHYA AFRIDI,J.- For reasons recorded in the
connected Custom Reference No. 26/2010 (Sultan
Muhammad vs. The Collector Customs,
Peshawar and another), this Custom Reference is
answered in the Negative.
Dated: 20.11.2014
JUDGE
JUDGE
*Nawab Shah*
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
33
JUDGMENT SHEET
PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT
Custom Reference No.22/2012
JUDGMENT
Date of hearing…………..20-6-2013….……………..…….....
Petitioner(s)……………………….……………………………
Respondent(s)…………………………………..………………
YAHYA AFIRDI, J.- Tila Muhammad and 18 others,
petitioners have filed this Custom Reference seeking this
Court’s opinion the following points of Law:
Whether the seizure of the goods was
not illegal and not maintainable, as notice
under section 171 of the Customs Act was
not issued nor notice under section 168 of
Customs Act was followed?
Whether the local police could lay hand
on the goods so seized from the vehicle on a
registered route, which is not closed to the
unauthorized border?
Whether the redemption fine could be
imposed on the goods as per order of
the authorities?
Whether seized goods are not un-
notified goods and does not come within
the purview of the Customs Act?
Whether the vehicle is not a public
transport and redemption fine
imposed on the vehicle is not against
the Customs Act itself?
Whether the seizure made by un-
authorized person is not liable to be
returned un-conditionally to the owner
of the goods.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
34
day, the matter was argued at some length. Without
passing any findings on the other questions of law,
lest it may prejudice the case of the parties, it would
be important to first decide the last question of law
relating to bias;
“That the impugned judgment and
order is illegal and void-ab-initio as
the Presiding Officer who heard,
adjudicated and delivered the
impugned judgment was actively
involved in the investigation
processes of the present case and
thus on the basis of the principle that
no person shall be a judge of his own
cause, the impugned judgment and
order is liable to be set at naught.”
It is noted that there were two Show Cause
Notices, which have been decided by the tribunal;
the first one was issued by Mr. Sher Nawaz, the then
Collector and the other by Mr. Zulfiqar-A-Kazmi,
the then Additional Collector. It is also noted that
the impugned order of the Tribunal has been passed
by the Worthy Member (Technical), namely, Mr.
Sher Nawaz, who was also the author of Show
Cause Notice No.Cus/Reb/Tor/8152/2006/8869
dated 3.10.2006. In view of this crucial fact, the
issue of ‘bias’ would become very relevant for
determination.
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
35
4. The term “bias” in its ordinary meaning
has been described in terms that:-
Concise Oxford English Dictionary
“bias. inclination or prejudice for or against
one thing or person”.
Webster’s New Explorer Encyclopedic
Dictionary
“a. Bent Tendency, b. an inclination of
temperament or outlook; especially: a
personal and sometimes unreasoned
judgment: Prejudice: c. an instance of such
prejudice”
Black’s Law Dictionary
‘Inclination; prejudice; predilection.’
5. The judicial trend on the objection relating
to ‘bias’ of a Presiding Officer of a legal forum in
the United Kingdom has been very eloquently
summarized in ‘Administrative Law’ by
H.W.R.Wade & C.F.Forsyth, in terms that :-
“Much confusion has been caused in the
past by the concurrent use of two differently
formulated tests for disqualifying bias. Many
judges have laid down and applied the ‘real
likelihood’ formula, holding that the test for
disqualification is whether the facts, as
assessed by the court, give rise to a real
likelihood of bias; and this test has naturally
been emphasized in cases where the
allegation of bias was far-fetched. Other
judges have employed a ‘reasonable
suspicion’ test, emphasizing that justice must
be seen to be done, and that no person
should adjudicate in any way if it might
reasonably be thought that he ought not to
act because of some personal interest.”
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
36
The former test was the innovation of Lord
Goff, while speaking for the House of Lords in
R.V.Gough (1993) A.C. 646 upon the later test,
earlier viewed by Lord Denning, as he expressed,
while heading the Court of Appeal in the celebrated
judgment of R.V. Camporne Justices ex p. pearce
(1995) 1 QB 41.
6. The jurisprudence has much more
developed in the European Union, where it is noted
that Article 6(1) of the European Convention on
Human Rights insists that the appearance of ‘bias’,
even if there is no actual ‘bias’, is sufficient to
declare the said order illegal.
7. Now to our jurisdiction, the test of bias
has finally been laid down by the apex Court in
Muhammad Nawaz Sharif’s case (PLD 2009 S C
284) in terms that:-
“…………..AIR 1959 SC 1376
(Gullapalli Negeswararao etc. V.
The State of Andhara Pradesh and
others) and AIR 1987 SC 2386
(Ranjit Thakur V. Union of India
and others. In the former
judgment, it was held that “no man
shall be a judge in his own cause;
justice should not only be done but
manifestly and undoubtedly seem to
be done; if a member of a judicial
body is subject to bias (whether
financial or other) in favour of, or
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
37
against, any party to a dispute, or is
in such a position that a bias be
assumed to exist, he ought not take
part in the decision or sit on the
Tribunal”. While in the latter
judgment test of likelihood of bias
was noted as follows:-
“….tests of the likelihood of
bias what is relevant in the
reasonableness of the apprehension
in that regard in the mind of the
party. The proper approach for the
Judge is not to look at his own
mind and ask himself, however,
honestly, “am I biased?”, but to
look at the mind of the party before
him……………
What is the test to determine the
existence of bias? To our mind and
from the analysis of the above
noted authorities, and facts, the test
of bias is, the thought of a
prudent/reasonable man in the
given circumstances of a case. If a
man considers the facts and
circumstances of a case
demonstrating and to be creative of
bias in the mind of a judge and the
real danger of having no fair trial
at the hands of the aforesaid judge
is apparent and existing, then the
question would be relevant,
otherwise it would not be allowed to
work, when a person having mere
apprehension on the basis of flimsy
grounds, suppositional thoughts,
surmises not a reality, with ulterior
motives and making pretences so as
not to got justice from a particular
judge, with a view that he might be
able to get the case transferred on
that basis to the judge of his own
choice or to the selective judges,
there being no likelihood of bias, or
there being no real of unfair trial
and so many other reasons which
cannot be exhaustively
encompassed.”
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
38
(underlining is provided by us)
8. Now, when we apply the test of ‘bias’ as
finally formulated by the apex Court in the
aforementioned judgment to the facts of the present
case, it is noted that a ‘reasonable man’ surely
would not be comfortable in pleading his case
before a Tribunal, which is presided by the same
officer who had initiated the complaint against him.
Thus, ‘subject matter bias’, cannot be ruled out. In
order to bring in ‘transparency’ and to ensure that
‘principle of natural justice’ are met, the impugned
order cannot be sustained in the eyes of law.
9. Before parting with this judgment, it be
noted that the Revenue has also filed Appeals
against the decision of the Worthy Tribunal, which
was authorized by Mr.Sher Nawaz for reducing
penalties, which according to them were not
permissible under the enabling provisions of the
law. Thus, ‘personal bias’ cannot be imputed upon
the Worthy Presiding Officer.
10. Accordingly, for the reasons stated
hereinabove, these References are partially accepted,
the impugned judgment dated 28.10.2010 is set
aside and the Appeals of M/S Zeeshan Trading
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.
39
Corporation shall be deemed pending before the
Customs Appellate Tribunal, Peshawar Bench,
which are to be decided in accordance with law.
The office is directed to send the copy of
this judgment under seal of the Court to the
Customs, Federal Excise and Sales Tax Appellate
Tribunal, Peshawar.
Dt.20-2-2014.
JUDGE
*M.Gul* JUDGE
TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.