1986 PLP 970 (MLD)

The Deputy Collector, Central Excise and Land Customs, Baluchistan, gave show‑cause notice and after hearing the petitioner's counsel came to the conclusion that the petitioner had attempted to smuggle the consignments to Iran on forged documents and having failed in his mission for the reason that the goods were restricted in Iran, attempted to take the same consignment to Afghanistan by booking the said goods in the railway wagons which the said railway authorities had no power to do. It was held: "Taking all the circumstances of the case in view I am of the opinion that the accused attempted to smuggle the goods into Pakistan under the garb transit. The whole purchase, the number of people involved and the forgery and fraud committed in the case indicates their "mens real' (i) offence as aforesaid is established. It is accordingly ordered that the offending goods be confiscated outright." (iii) Against the above order an appeal was preferred before the Collector of Appeals (South Zone) at Karachi, which was dismissed by 'order, dated 14/15th May, 1984 upholding the order passed by the Deputy Collector. (iv) The petitioner then preferred Revision Petition, which was also dismissed by the Central Board of Revenue, Government of Pakistan/ respondent No.1, which also came to the conclusion that the transit facilities were obtained by the petitioner on forged permission and that he had not given any convincing reason to refuse the said charge.

3. Against the orders passed by the revenue authorities in the 2 cases, of which facts have briefly been stated above, the petitioners have filed the above petitions invoking constitutional jurisdiction of this Court. 4. (i) Mr. A. H . Shah, learned counsel, who appeared for both the Petitioners sought to impugn the orders passed by the revenue authorities by urging in the first place that under section 129 of the Customs Act, 1969 the petitioners in the absence of any Rule in the Customs Export Transit Rules, 1974 had unrestricted right to take the consignments in question even without as the goods were entered for transit across the into Iran and from Iran to Afghanistan. The contention thus raised, came up for consideration before us in the case of I.D. Jehani (an Iranian national) v. Central Board of Revenue C.P. No.D‑822/84 but the same was repelled holding as follows:‑‑ "

7. Mr. Shah has submitted that under section 129 of the Customs Act, 1969 (hereinafter called the Act) no permission at all was required for transit of the goods to Iran. In view of this submission and for convenience of future reference we may first quote the provisions of section 129 of the Act, which read as follows:‑‑

129. Transit of goods across Pakistan to a foreign territory ‑‑Where any goods are entered of transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transmitted without payment of the duties which would otherwise be chargeable on such goods.

8. Now, it is argued by Mr. Shah that the permission of the appropriate officer who would be the officer of Customs to whom functions to be performed under the Customs Act, 1969 have been assigned by or under the Act, would be necessary, if required by the rules and under the rules no such permission is required for the rules are silent on such requirement. In this regard reference is made to the Customs Export Transit Rules, 1974. There is no doubt that these rules are silent as to the permission to be allowed for transit of the goods from Pakistan to foreign country but we do not accept the argument of Mr. Shah that if the rules are silent then no permission of an appropriate officer would be required for that is the requirement of the provisions of section 129 themselves. However, much emphasis is laid by Mr. Shah on the words "subject to the provisions of the rules" used in section 129 of the Act. The said words in our opinion mean that appropriate officer has to. give permission in accordance with the provisions of the Rules if any, and that if the Rules are silent as to the giving of permission that would not mean that no permission would be required.

9. So far as permission granted by the Ministry of Commerce is concerned it has been found by the Customs Authorities to be forged. It is, therefore, clear that the goods were being transited without any permission and breach of the law. Accordingly, the orders impugned in this petition are unexceptionable and do not require any interference in this constitutional jurisdiction." (ii) The learned counsel then argued that the permissions granted for transit by the Ministry of Commerce even if are considered to be forged and fake, the consignments crossed the territory of Pakistan and entered into Iran and thus those packages out of the said consignments which were not accepted by the Iranian Government when rebooked into railway wagons for transit across Pakistan to Afghanistan the same should be treated as fresh transit of goods and their seizure at Taftan in Pakistan is liable to be declared as without lawful authority. This submission of the learned counsel, however, cannot be accepted as admittedly the consignments received back from Iran purportedly in transit to Afghanistan were the same which had been transited vi Karachi illegally under forged and fake permissions across the Pakistan territory which could not have been done unless validly allowed by the customs Authorities as provided under section 129 of the Customs Act, 1969. For the same reason the petitioners could not have brought back the very consignments or any part thereof (earlier brought in Pakistan and taken across its territory into Iran illegally) and claim that these be treated as fresh consignments to be transited across Pakistan from Iran to Afghanistan. It would be important to take notice of the fact that in the counter‑affidavit filed on behalf of the respondents in these cases it has been expressly stated that transit facility via Taftan, is not admissible and that only the Government of Pakistan is competent to allow such facility. This assertion made on behalf of the respondent has not beer, rebutted either by the petitioners by filing any affidavit in rejoinder or even during the course of arguments advanced by the learned counsel. I may refer here to sections 10(b), 16 and 17 of Customs Act, 1969. Under section 10 (b) it is provided that the Board; may by Notification in the official Gazette:‑ (a) Specify the limits of any customs station; and approve proper places in .any customs station for the loading and unloading of goods or any class of goods. Section 16 of the Customs Act, 1969, lays down that the Federa Government may from time to time by Notification in the official Gazett prohibit or restrict the bringing into or taking out of Pakistan any o the goods of specified description by air, sea or land. Then follow section 17 which provides:‑‑ "Where any goods are imported into or attempted to be exporte out of Pakistan in violation of the provisions of section 15 or o a notification under section 16, such' goods shall, without prejudice to any other penalty to which the offender may be liable under this Act, or any other law, but subject to rules, be liable t detention and confiscation." Thus the seizure of the consignments and the orders adjudication which are sought to be impugned based as they are upon' findings of fact arrived at by the tribunals of competent jurisdiction, to my opinion, having been made with lawful authority in the circumstances, cannot .be challenged in these proceedings. The petitioners it may be observed cannot take advantage of their own illegal and wrongful acts. Nor there is justification in th plea raised by them that the illegality and forgery be ignored and bringing back into Pakistan the very consignments or part thereof C rrom Iran this time, purportedly in transit to Afghanistan via Taftan, ought to have been treated as fresh consignments in transit. The petitioners' conduct cannot wipe out the violation of law and forgery committed earlier by them or their agents and the very consignment brought back in the country from Iran cannot clothe them with legality in the circumstances.

5. Moreover, in the affidavit filed on behalf of the respondents it which transit been stated that Taftan is not one of the posts through transit facilities were admissible and that only Government of Pakistan is competent to allow such facilities.

6. The petitioners have expressly been found guilty of using forge permissions for transiting the consignments across the Pakistan territory. These findings reached by the tribunals of competent jurisdiction have not been challenged. The conduct of the petitioners in the circumstance is such that the same disentitles them from getting any relief in these proceedings. In the case of Abdul Manan v. Asstt Director Immigration, and Passport, Government of Pakistan, Karachi and another P L D 1972 Kar.138 it was held:‑‑ "It has been repeatedly held by this Court as well as the learned Judges of the Supreme Court that to successfully invoke the equitable jurisdiction under the constitutional proceedings it is a pre‑condition that the petitioner should come with clean hands if otherwise, the relief is not to be granted." Reliance was placed in coming to above conclusion by the learned High Court on the cases of (1) Tufail Muhammad v. Muhammad Zia Ullah Khan P L D 1965 S C 269; (2) Ch. Altaf Hussain v. Chief Settlement Commissioner P L D 1965 S C 68; (3) Muhammad Juran Mondal v. A.H. Chowdhry, District Judge P L D 1969 Dacca 416 and (4) Abdul Rashid v. Pakistan 1969 S C M R 119.

7. The upshot of the above discussion is that I find that the impugned orders of the tribunals were made in lawful exercise of the jurisdiction and nothing has been shown by the petitioners to entitle them to the relief prayed for. Moreover, the petitioners who used forged and fake documents/ permissions for achieving their object of transiting the goods to Iran, across Pakistan territory obviously have not come to this Court with clean hands. They in the circumstances cannot successfully invoke the constitutional and equitable jurisdiction of this Court to gain profit out of their own wrongful and illegal acts. 8. (i) Before concluding it may be observed that in the case of Yousuf Ali C . P. D‑854 of 1984, the learned counsel for the petitioner did not advance any arguments before us to challenge the seizure of consignment, which according to the petitioner was transited from Karachi to Zahidan in Railway Wagon No.60288 and which according to him, was seized on 30‑8‑1982 at Taitan immediately before its crossing over into Iran. All that the petitioner has stated in para. 3 of the petition is that in spite of lapse of "over 2 years its adjudication is still pending in the Collectorate Central Excise and Land Customs, Quetta in a different name of one Yaqoob Salashore". (ii) From the perusal of the record we, however, find that this petitioner Yousuf Ali has suppressed material facts and that as to the consignment brought by him he has taken different stands at different stages, to which reference may be made here:‑ (a) In the memo of revision filed before the Central Board of Revenue (Photo copy produced along with the Petition as Annexure under the title "Brief Facts of the Case" he had pleaded that the entire consignment which consists 166 packages, as transit goods, booted in two railway wagons Nos. 711141 and 60288, from Karachi to Zahidan (Iran), vide R.R. No.25327, dated 20‑9‑1981, crossed Iran border at Taftan and reached Zahidan (Iran) but later on out of those 166 packages only 32 packages of ready made garments were rebooked from Zahidan to Chaman via Taftan for transit in Wagan No.73898, vide R.R., dated 7‑7‑1982 and that these 32 packages were seized by the Customs on 9‑7‑1982 on the pretext of forged documents of transit permission ind ultimately confiscated.. (b) Earlier, however, before the Collector a totally different story was set up by him. The relevant finding reached by the Collector of Customs; is reproduced below:‑‑ "I have, however, gone through the record of the case and have considered the case in the light of the arguments made and the documents on record. The defendant failed to produce any documentary evidence in support of his assertion at the time of hearing, that the consignment a in effect moved in transit from the first place of India (?) i.e. Bunder Abbas through Iranian territory to Zahidan. The investigation carried out in the case reveals a different story, .166 packages of cloth and Ready made garments an shoes from Kuwait were despatched by him to one Yaqoob Salashore c/o Hotel Bostan Karachi (in transit to Iran via a tan by Pakistan Railway), vide Bills of Lading Nos.7 and 9, dated 31‑3‑1981. When the consignment reached Karachi Yaqoob Salashore managed to obtain a 'Transit permission which transpired later had been forged and obtained fraudulently (as Central Board of Revenue) Letter, vide C.No.1979‑80/Cus/I & P/3(5), dated 18‑3‑1983, Yaqoob‑ Salashore further manipulated with Messrs Jan Corporation, Customs Agents, Karachi to book the goods to some different persons namely D.Jahani c/o Jalaluddin a resident of Iran, in Railway Wagons Nos.60288 and 71141, vide R.R. No.25327, dated 29‑9‑1981. Further inquiries conducted in the matter reveal that 83 packages loaded in Wagon ‑No.60288 were seized by Customs Mobile Squad Taftan on 30‑8‑1982. The other Wagon No.71141 crossed into Iran as at the time of this crossing it was not known whether the transit permission granted to them was forged or not 32 packages out of the 83 packages originally booked in wagon No. 71141 were got rebooked from Zahidan by Jalaluddin in Railway Wagon No.73898, dated 7‑7‑1982 "in transit" to Afghanistan via Taftan, Chaman. The picture that emerges from the foregoing facts is that the accused attempted in the first instance to smuggle the aforementioned goods into Iran on forged documents and having failed in his mission to dispose of his goods in Iran (owing to the fact that the seized goods are restricted in Iran) attempted to take the same to Afghanistan. a is further observed that the Railways had no authority to book the goods in transit to Afghanistan. They were asked to let this office know whether their action was legally correct‑but they did not respond." (The underlines have been made by me.) (iii) Thus we find that different and contradictory pleas were taken by the petitioner Yousuf Ali at different stages before the revenue Juthorities in order to serve his illegal ends and then in this Court yet another version was put forth. Moreover perusal of the orders of revenue authorities particularly that the Collector of Customs passed in appeal shows that Yousuf Ali's case involves disputed questions of facts which cannot be resolved in this petition. The facts found against him by the Collector, of Customs whose findings were upheld in revision by the Board of Revenue were not even adverted to by Yousuf ali the petitioner in C.P. No.D‑854/84. Thus he is also guilty of suppressing material facts.

9. The upshot of the above discussion is that both these petitions are dismissed but with no order as to costs. A . A. Petition dismissed.