2011 PLP (Trib (PTD)

SYED NADEEM SAQLAIN (JUDICIAL MEMBER).

Captioned Sales Tax Appeals bearing Nos.2099, 2100, 2101 and 2102/LB of 2009 have been preferred at the instance of the registered person/appellant calling in question four separate impugned orders dated 18-8-2009 passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals) Lahore. The appellant has taken up a number of grounds while assailing the impugned orders. However, at the very outset the learned A.R. submitted at the bar that we would like to press a legal ground that the learned 'Collector (Appeals) was not justified to assume the jurisdiction of the instant case for the reason that earlier in the capacity of Additional Collector (Adjudication) LTU., Lahore, show-cause notices were issued by her.

2. The learned A.R. pleaded at the bar that it is cardinal principle of jurisprudence that nobody could be judged in his own case. It is contended that the learned/Collector erred in law while taking up the present appeal despite the fact that initially proceeding,, were initiated by her while she was posted as Additional Collector, Adjudication Lahore. The learned A.R. entreated at the bar that "this being the case, the impugned order passed by the learned Collector is liable to be set aside on this score only. The learned D.R. has opposed the arguments advanced by the learned A.R.

3. We have heard the learned counsel for both the patties and have gone through the relevant, orders. We find ourselves in full 'agreement with the assertions made by the learned A.R. and have no hesitation in allowing the appeal. Obviously, it is well-established principle of law and jurisprudence that nobody could be judged in his own cause. In this regard reference was made to the reported judgment of honourable Supreme Court of Pakistan cited as PLD 1999 SC 1126 wherein it has been held:-- "It may be observed that there are certain basic norms of justice. One of the cardinal principles of above basis norms is that one cannot be a judged in his own cause. The breach of the above cardinal principle of jurisprudence will in fact be violative of the right of "access to justice to all" which is a well-recognized inviolable right enshrined in Article 4 of the Constitution. This right equally founded in the doctrine of "due process of law". The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial Court or Tribunal. The term "due process of law" can be summarized as follows as held by this Court in the case of Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863):-- (1) A person shall have notice of proceedings which affect his rights. (2) He shall be given reasonable opportunity to defend. (3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and (4) That it is a Court of competent jurisdiction. Above are the basic requirements of the doctrine "due process of law' which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him."

4. Admittedly, this principle of law has been violated in a glaring manner. In the case before us, the learned Collector was not within her jurisdiction to take up the cases about which she was instrumental in commencing the proceedings by issuing show-cause notices. Obviously, at the time of issuing show-cause notice the learned Collector had-already shown her mind and the factum of bias which was very much present cannot be ruled out. The principle laid down in Para.3 of the above noted judgment that Tribunal and Courts have to give reasonable assurance of his honesty and impartiality, is also missing in this case. It has all along been held by the courts at all fora that justice should not only be done but it should be seen to be done. In this regard reference was made to the reported judgment cited as 1980 PTD 406 wherein it has been held:-- "The learned counsel for the respondent is unable to dispute the fact ..We have the feeling that the petitioner has been denied a fair trial to which he was entitled under the law. Justice should not only be done but must also appear to have been done. To our mind the attitude of the Commissioner is bound to undermine the confidence of the public in the fair, administration of the Income Tax law."

5. In the light of aforesaid discussion, we accept the appeal, set aside the impugned orders as well as order-in-original.

6. Since we have decided the appeals on legal ground, hence other grounds taken by the appellant need not be dilated upon.

7. Ordered accordingly. C.M.A./12/Tax(Trib.) Appeal accepted.