1984Q17 (PLP)

ZAKAULLAH LODHI, ACTG. C. J.‑By means of this judgment we propose to dispose of C. P. Nos. 20 and 204 of 1980 as both assail common orders viz. the order of the Deputy Collector, Customs, dated 12th March, 1979, the orders of the Collector, Customs, dated 15th November, 1979 and the order, dated 16th June, 1982, of the Member, Board of Revenue, Islam abad. By the first mentioned order, the Deputy Collector Customs, Quetta ordered confiscation of the betelnuts loaded in truck No. QA‑6592 and imposed a penalty of Rs. 30,000 upon the petitioner under section 157 of the Customs Act and also confiscated the above‑said truck under section 156 of the Customs Act, whereas by subsequent orders the appeals and revisions of the petitioners were dismissed. C. P. No.203 of 1980 filed by Jan Muhammad, challenges the confiscation of betelnuts and the imposition of fine whereas C. P. No. 204 of 1980 filed by Khan Muhammad challenges the confiscation of the truck.

2. The background of the case as narrated by the petitioners is that in 1974, some betelnut was confiscated from the petitioner's possession (G. P. No. 203 of 1980) which was being transported to Karachi in the truck also involved in this case. Later on in 1.976, an auction was held by the Customs Department at Hyderabad in which the betelnut in question was purchased by the petitioner. It was subsequently released from the Customs godown at Quetta. It consisted of 90 bags and weighed 225 maunds. The petitioner desired to send it to Karachi immediately after the release but the disturbances occurring in 1977 prevented him. However, as the distur bances subsided, the betelnuts were transported to Karachi on 22nd August, 1977. The truck was checked at Saraib Customs Post and allowed to proceed on petitioner's presenting the release certificate, dated 15th March, 1977 (Annexure 'B') which certified that 225 maunds of betel‑nuts packed in 90 gunny bags had been released to the petitioner in customs auction. An endorsement to this effect was also made at the bottom of the certificate. However, afterwards, the truck was chased by Mr. Magsi, Inspector Customs, who apprehended it at Sibi, and brought it back to Quetta treating it to be a case of smuggling. Mr. Yahya Bakhtiar, however, submitted, that Mr. Magsi was enemical towards the petitioner, therefore, he took this action, although he was not on duty. There is, however, nothing on record to that effect. On the other hand Mr. Ehsan has refuted this allegation and asserted that the staff at Sariab was in collusion with the petitioners and it illegally allowed the goods to pass and that departmental action was also taken against the persons responsible for doing so. We will not, however, concern ourselves with this controversy at the present, as the record is silent about it.

3. After the confiscation, the truck was brought to Quetta where the goods were weighed and the bags numbered and 'Mashirnamas' drawn. There were 85 bags weighing 235 maunds. However, the entry in the Stock Register showed the weight as 2251 maunds thus it belied the 'Mashir nama'.

4. The defence plea was that these were the same goods which had been released by the Customss Department in 1976 and that these were packed in the new gunny bags as the old bags had gone rotten. Both these pleas were not accepted. The Deputy Collector also took note of the difference of weight i.e. the goods released weighed 220 maunds, whereas the confiscated goods were 235 maunds. While so holding, he lost sight of the fact that godown register in which correct weight was shown tallied with the weight of the goods released in 1976 to the petitioner. The Deputy Collector also held that the goods were fresh while those released in 1976 ought to have been old. In nutshell, he was of the view that the petitioner, under the cover of the release certificate of the Customs Department continuously transported betelnuts from Quetta to Karachi in violation of the provisions or section 156(89) of the Customs Act and was thus liable to be punished be sides confiscation of the goods.

5. Mr. Yahya Bakhstiar, learned counsel for the petitioners contended there was absolutely no evidence to show that (i) the goods in ques tion were not the same which had been released in the year, 1976 and the findings of the Deputy Collector Customs whose order was upheld by the appellate and revisional authorities were based on mere suppositions, (ii) that the order was mala fide as the version of the Inspector that the goods weighed 235 maunds and not 225 maunds (as shown by the Register) was accepted without calling him as a witness, or perusing the relevant register, (iii) that the Deputy Collector's finding that the goods were not the same which had been released to the petitioner in 1976 as the present one were fresh, was a finding not based on any expert evidence but on his personal experience and he being the Judge in the case could not act upon his per sonal experience or knowledge ; and lip) that the rejection of the explana tion with regard to the change of the gunny bags was without any basis as the impugned order is silent on the point. Precisely be contended that this was a case of no evidence and the justifications quoted by the Deputy Collector, Customs for making the impugned orders, were altogether capri cious and tainted with mala fides.

6. To prove mala fides on the part of the Deputy Collector, Customs Mr. Yahya Bakhtiar referred to the original orders to show that the Deputy Collector, Customs relied upon the number of the bags and the weight of betelnuts as shown in the `Mashirnama', but he did not correct himself despite seeing the entry in the State Warehouse Register showing the same as 224 maunds 20 seers, which weight tallies with the weight of the betelnut released in 1976. It appears that he was misled by the statement of the Seizing Officer. The Seizing Officer did not appear in Court so that be could be cross‑examined by the petitioner on this point. These irregularities are bound to have prejudiced the defence case. Pro bably the Stock Register of the Warehouse was not seen at all by the Deputy Collector, Customs. He also laid much stress upon the prosecution's con tention that the betelnuts in question were quite fresh and were not several years old as alleged by the petitioner. In fact in this regard too, he relied upon his own knowledge instead of examining any expert or knowledge able independent witness. He himself being adjudicating Officer could not act as an expert. It also transpires that he being in know of the practice of some of the smugglers who transported contraband goods to stations outside Quetta by repeatedly using ,such like release certificates as the petitioners held in this case, straightaway concluded that this too was a similar effort and failed to base his order on evidence. He may be quite correct in this view but a Court is not supposed to sit to hear a case with pre‑conceived notions.

7. Mr. Ehsanul Haq, learned counsel for the respondents, however, submitted that the explanation given by the petitioner with regard to change of gunny bags wag not satisfactory and that the same truck having been used in 1974 as was used now clearly pointed out that this truck was being continuously used for smuggling purposes. He relied upon Wali Muhammad and others v. Sakhi Muhammad and others (P L D 1974 S C 106), in which it was held that the relief in writ jurisdiction being discretionary, it should not be granted for retention of ill‑gotten gains and mere technicalities should not come in way of maintaining a Tribunal's order if it was otherwise satisfactory. He also relied upon Abdul Aziz v. Muhammad Ali and others (P L D 1967 Lah. 762). In this case the dictum laid down was that the discretionary relief in writ jurisdiction should be made available in aid of law and justice and not otherwise. There i absolutely no quarrel with these, rather, fundamental principles. However, these findings do not directly clinch the issue involved in these cases. We may reiterate that the authorities should be most careful in adherance to, law and procedure while deciding cases involving valuable properties and' rights and liberties of citizen irrespective of the fact whether such authority acted as a regular Court of law or a Special Tribunal, for, the principles of natural justice are common to all the forums and all kinds of cases. Per sonal knowledge and experience may outwardly seem to be safe to resort to and the authority may be very honest in using the same to decide a contra vertial point, but the experience has revealed that such a course is not safe, as among other things, it does not at bare minimum stand the test of cross examination and thus invariably tells upon very valuable rights of the defen ders. It is quite possible that the findings in question might otherwise be absolutely correct and motivated by honest and sincere approach but as they do not come upto the level of a judicial order required to be passed ins such like cases, the order of the Deputy Collector, Customs deserves setting' aside. With this order, the orders passed in appeal and revision would auto matically fall (See Messrs East and West Steamship Co. v. Pakistan (PLD1958SC41).

8. Accordingly both these petitions are allowed with no orders as toy costs and the cases are remanded to the Deputy Collector, Customs, Quetta for fresh decision on merits in accordance with law. He should try to dispose of these expeditiously. M. z. M. Petition accepted. Case remanded.