1991 PLP 817 (SCMR)

‑‑‑‑Ss.16, 82, 168(2) & 180‑‑‑Passengers (Non‑Tourists) Baggage (Import) Rules, 1972‑‑‑Defence of Pakistan Rules, 1971, S.142‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Respondent's shotgun brought into Pakistan was refused clearance as its import was banned and then auctioned‑‑‑High Court in Constitutional jurisdiction ordered release of gun and same was handed over to respondent‑‑ Shotgun purchased in 1974, after remaining in custody of Customs Authorities, had now been with respondent, in pursuance of order of High Court for over six years‑‑‑Supreme Court observed that departmental Authorities should consider the advisability of not insisting on the return of the gun for its re‑auction which was now in very poor condition and respondent had suffered for his mistake in bringing the same without proper import licence‑‑‑Customs Authorities, could however recover the duty, if any from respondent‑‑‑Appeal was accepted in circumstances. Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellants. Muhammad Bilal, Advocate Supreme Court for Respondent. Date of hearing: 22nd October, 1990. NASIM HASAN SHAH, J: ‑‑The respondent was a member of the Pakistan Delegation to the 29th Session of the United Nations General Assembly held from 17th September, 1974 to 19th December, 1974. He brought a shotgun from London while returning from New York. On his arrival at Karachi on 2nd of January, 1975, at his request this shotgun was transhipped by air to Peshawar. However, it was not released as a permit was required for its clearance from the Controller of Imports and Exports. He applied on 4th January, 1975, for such permit but his application was rejected on the ground that the shotgun was a prohibited item and could not be imported. Thereafter, the Deputy Superintendent, Customs, Peshawar issued a notice under section 82 of the Customs Act on 4th of July, 1975, to the respondent to clear this shotgun within 10 days otherwise it would be auctioned under section 82 of the Customs Act, 1%>

9. There was no response from the respondent and this gun was, accordingly, auctioned. The respondent after a lapse of almost two and a helf years filed a writ petition on 19th of August, 1978, in the Peshawar High Court, Peshawar seeking the release of the shotgun and by order dated 20th of February 1984, his request was allowed and a direction was issued to release the gun in terms of section 168(2) of the Customs Act, 1969. This order was challenged in this Court on the ground that the High Court was in error in holding that the shotgun had been confiscated and the confiscation having been made without compliance of the procedure as provided in section 180 of the Customs Act, 1969, it had to be released under Section 168(2) of the said Act. The learned counsel pointed out that the gun had not been confiscated but was refused clearance as its import was banned under section 16 of the Customs Act read with Passengers (Non‑Tourist) Baggage (Import) Rules, 1972 and so also section 142 of the Defence of Pakistan Rules, 1971 and auctioned under section 82 of the Customs Act and not under section

180. There is force in these submissions. It is apparent that the ground on which the High Court proceeded to accept the writ petition was completely contrary to the actual position and it was persuaded to accept the writ petition on assumptions which had no basis in fact. Accordingly, the aforesaid judgment of the High Court cannot be upheld and is liable to be set aside. However, we find that the respondent had already, under the orders of the High Court, been handed over the shot‑gun presumably without any objection by the purchaser. Thus, the shotgun purchased in 1974, after remaining in the custody of the Customs Authorities has now been with the respondent, in pursuance of the order of the High Court dated 20‑2‑1984 since over six years. In these circumstances, the departmental Authorities may consider the advisibility in not insisting on the return of the gun for its re‑auction which, we understand, is by now in a poor condition and the respondent has suffered sufficiently for his mistake in bringing the gun without a proper import licence. The Customs may however, recover the duty, if any, from the respondent. The overall conclusion is that this appeal succeeds and is accepted but subject to the observations made above. Parties will be left to bear their own costs. AA./G‑318/S Order accordingly.