JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR · Sultan Muhammad vs. The Collector Customs, Peshawar...

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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.

Transcript of JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR · Sultan Muhammad vs. The Collector Customs, Peshawar...

Page 1: JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR · Sultan Muhammad vs. The Collector Customs, Peshawar and another (Custom Reference No. 26/2010). On 3.3.2008, the Customs Anti-Smuggling

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

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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

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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.

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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

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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”

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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

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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.

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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

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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”

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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:

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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.

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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

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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.

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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

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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:

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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

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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)

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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

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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:-

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“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)

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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

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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)

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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?

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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.

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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

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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

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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”.

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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.

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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”).

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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.

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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*

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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*

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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.

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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.

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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.”

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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

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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.”

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(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

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Page 39: JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR · Sultan Muhammad vs. The Collector Customs, Peshawar and another (Custom Reference No. 26/2010). On 3.3.2008, the Customs Anti-Smuggling

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

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