P L D 1996 Karachi 542 (PLP)

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3. Through this Constitutional petition action by way of contempt under Article 204 of the Constitution is sought on the ground that the Collector of Customs (Appraisements), Karachi has acted in disregard of the order dated 14‑2‑1991 whereby an earlier Constitutional petition bearing No.D‑152/88 was remanded to him for re‑determination in terms of yet another order passed in C.P.No.D‑801/87 under the title Nagina Cotton Mills v. Central Board of Revenue and others. In paragraph 4 of the memo. of petition the petitioner has reproduced some portions from the judgment in Nagina Cotton Mills case, above referred, which we may conveniently re‑state below:‑‑ "It is an admitted position that S.R.O.512(1)/86 superseded S.R.O.820(1)/78 and S.R.O.702(1)/80 dated 26‑6‑1980. It is also an admitted position that S.R.O.812(1)/86, mentions the PCT Headings which are eligible for exemption from Customs Duties. It is a settled position that PCT Heading 84‑38 A03 is not covered by the table annexed to the said S.R.O. It is also settled position that C.G.O. N0.21/79 was not withdrawn and/or substituted by the Central Board of Revenue. In the instant cases, the petitioners imported card clothing from England. The point for consideration in these petitions is as to whether the import of card clothing is exempted under S.R.O.512(1)/86 and C.G.O. 21/79 or not. The petitioners contested that C.G.O. 21/79 was operative as it was not withdrawn whereas the case of the respondent is it was not operative. The scheme of Customs Act is quite clear. Under section 223 of the Act, the C.B.R. has been empowered to issue orders, instructions and directions to the Customs officials subject to the proviso that such orders, instructions shall not interfere with the discretion of the appropriate officials of customs in exercise of their quasi‑judicial functions. Section 21 of the General Clauses Act, 1897 provides that where under any Central Act or Regulation, a power to issue notification, instruction or CGO orders, rules or bye‑laws is conferred, then that power includes ,a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add, to amend, vary or rescind any notification, orders, rules or by‑laws, instruction or direction so issued. This power can be exercised by the C.B.R. from time to time so it had every jurisdiction and power to amend, vary or rescind the previous CGO and issue a fresh CGO under section 223 of the Act. In the instant cases, this has not been done. " In response, continents have been filed and paragraph 4 of the memo. is not denied. However, the learned standing counsel has drawn our attention to the reply in parawise comments relating to paragraphs 8 and 9 in the petition which is as under:‑‑ "It is submitted that identical cases have been remanded by Member (Judicial) in capacity of Federal Government to decide whether exemption of customs duty and sales tax is admissible when the Notification S.R.O.702(1)/80 was superseded by S.R.O.512(1)/86. Since both these cases are to be decided in legal framework and interpretation of statute in consultation with Law and Justice Division, therefore, the case of petitioner will be decided after final interpretation in consultation with Law and Justice Division. The petitioner has also admitted that proper opportunity of hearing has been afforded to him, therefore, both the cases (i) remanded by Member (Judicial) at the revision stage, (ii) remanded by honourable Sindh High Court will be decided in true legal prospective." In the first place, we do not think that a Constitutional petition to enforce an earlier judgment in another Constitutional petition is maintainable. If such judgment is not acted upon or any other contumacious act or omission is alleged in relation to it, the proper course for the aggrieved party would be to file a miscellaneous application in the same case in the context of which the plea of contempt is projected. This is correspondingly convenient as the same would obviate the necessity of filing an application for tagging the record of the earlier case with the subsequent petition, as has been done through Miscellaneous 121/95 above. Secondly, the petitioner would escape payment of court‑fee as on a Constitutional petition and the somewhat extended procedure of examining the fitness of the case for admission and issuing notices etc. thereon. The point becomes clearer when it is seen that this Constitutional petition on a simple issue is pending at the Katcha Peshi level since 9‑1‑1995, having been fixed on a number of occasions and remaining fruitless all the time. Having said as much, it may yet bear clarification that a Constitutional petition under Article 204 of the Constitution would still lie when contempt is alleged independent of a pending or disposed of matter. Corning to the merits of the controversy, we take serious exception to the comments relevant to paragraphs 8 and 9 of the memo. of petition. It is totally unprecedented that a quasi‑judicial forum should seek and await the advice from a purely administrative agency such as the Ministry of Law and Justice and then plead to act thereupon in course of time. If such a stand is to gain currency there would hardly be any need for those Tribunals because in that case all controversies can be laid at the door of the relevant legal department of the Government and parties would then have to abide with the verdict given without the slightest opportunity of being heard. All that, therefore, we need to say is that the relevant quasi‑judicial authority, exercising functions as above, does not seem to be aware of its powers and it is high time that it does so, We, therefore, unhesitatingly reject the foregoing plea and require the relevant forum to accord hearing wherever necessary in all cases of the kind pending before it and decide the same according to law. Undoubtedly, such forum can have requisite assistance from such Law Officer or Law Officers as may be available to it or be deputed before it. We expect the requisite decisions to be rendered within three months' time. In the event of non‑compliance, the petitioner would be free to file an appropriate application in the aforesaid petition on the basis whereof this order has been passed. ‑ Matters at Srl. Nos. 1 to 3 stand disposed of ‑ A.A./M‑111/K Order accordingly.