P L D 1988 Lahore 177 (PLP)

This is a constitutional petition filed by Muhammad Jan and Multan Khan, petitioners Nos.l and 2, for a declaration that the order of the Deputy Collector, Customs, Lahore, dated 28‑11‑1985, that of the Collector (Appeals), Lahore, dated 16‑3‑1986 and that of the Additional Secretary, Ministry of Finance, Government of Pakistan, dated 30‑12‑1986 confiscating truck No.PRP‑6585 and imposing fine in lieu thereof be declared to be illegal, null and void and without lawful authority and of no legal effect.

2. The case in brief is that Muhammad Jan, petitioner No.l, is the owner of truck No. PRP‑6585, which he had leased out to Multan Khan, petitioner No.2, who owns a bus adda at G.T. Road, Peshawar, on which he runs transport business under the name "New Mushtarka Mehmand Goods Transport". To persons by the name of Haji Noor and Ghulam Qadir booked bags containing cloth with the "New Mushtarka Mehmand Goods Transport Company", Peshawar. The said persons delivered five delivery orders Annex P6 to P10 issued by the Customs and Central Excise Office, Peshawar, to the said transport company as proof of their bona fides that they were transporting cloth bought by them in open auction from the Customs Authorities. Whilst the truck was on its way to Karachi, it was intercepted by the Customs staff at Ravi Bridge, Lahore, on 25‑9‑1984. The driver of the truck Mir Shahad produced five bilties Annex. P1 to P5 issued by the "New ‑Mushtarka Mehmand Goods Transport Company", Peshawar, and the five delivery orders Annex. P6 to P.10 issued by the Customs and Central Excise Office, Peshawar, to the raiding staff. On checking it was later discovered that the cloth seized was smuggled and of foreign origin and did not conform to the description given in the delivery orders. Accordingly, Gulab Noor and Ghulam Qadir, owners of the goods, and one Muhammad Anwar, who were supposed to receive the said goods, were sent up for trial under sections 156 (1) 77 and 89, 157 and 178 of the Customs Act before the learned Special Judge, Customs, Lahore, and the said three persons along with the two petitioners and Mir Shahid, the driver of the truck, were proceeded against under sections 156(1) 89 and 90 and 157 of the Customs Act with regard to the confiscation of the smuggled cloth and the truck and for imposition of penalty. The Deputy Collector (Customs) Lahore, by his order dated 28‑11‑1985, ordered the confiscation of the seized truck of the petitioners. Muhammad Jan, owner of the truck, was then given the option to redeem the same on payment of redemption fine of Rs.1,00,000 within one month from the day of the order, failing which the said vehicle was ordered to be disposed of under the law. The two petitioners and Mir Shahad then preferred an appeal before the Collector (Appeals), Lahore, against the said decision, to the extent that it related to the confiscaton of the truck. The said appeal was dismissed on 16‑3‑1986. The petitioners then filed a revision petition, which was dismissed by an Additional Secretary in the Ministry of Islamabad on 30‑12‑1986. Being aggrieved by the said three orders of the Customs Authorities confiscating the truck, the petitioners filed a writ petition (W .P . No.927 of 1987), which is now before me for disposal.

3. On behalf of Muhammad Jan, petitioner No.1 who is owner of the truck, and Multan Khan, petitioner No.2, who is owner of the Bus Adds, it is submitted that neither the former had leased out his truck for use by the latter for transporting smuggled goods, nor was he aware that the latter was using his truck for the said purpose, nor the latter knew when he took goods from Haji Ghulab Noor and Ghulam Qadir that they were smuggled, for he had taken full precaution by asking the said persons for the delivery orders P6 to P10 issued by the Customs and Excise Office, Peshawar, showing that the goods had been bought by them in Customs auction. Since Multan Khan, petitioner No.2, was neither related nor known to Haji Gulab Noor and Ghulam Qadir, it is urged that it cannot be stated that he was privy to the attempt to smuggle the goods. In this connection the learned counsel has cited Haji Abdul Razzaq v. Pakistan P L D 1974 SC 5 to show that where there is no evidence to indicate that the owner of a vehicle is responsible for assisting or furthering the commission of an offence, the Customs authorities cannot confiscate the truck.

4. On behalf of the Customs authorities it is (submitted that the three impugned orders have been passed on the basis of appreciation of facts and material available with the Customs Authorities and that it is not within the scope of this Court to disturb the findings, by arriving at a different finding on the basis of appreciation of the same material. In this connection the three impugned orders have been read.

5. I have given my anxious consideration to the arguments of the learned counsel for the petitioners and the respondents. It is true that there is material on the record as against Haji Gulab Noor and Ghulam Qadir, the owners of the offending goods, to show that they attempted to transport smuggled goods from Peshawar to Karachi which did not totally conform with the goods as shown in the delivery orders Axs. P.6 to P.10 issued by the Customs and Excise Office ail Peshawar, but there is no material to show that either of the petitioners were in any way criminally linked with the said two persons or the third person Muhammad Noor, who was to ultimately receive the goods, or that they had any knowledge or information that the cloth in the bags that were booked contained cloth not conforming with that contained in the delivery orders issued by the Customs and Excise Office at Peshawar. Unless material was brought on the record by the Customs Staff to show that the owner of the truck or the owner of the transport company was criminally linked with the smugglers or l had definite knowledge that the goods that were to be transported were smuggled or that either of them was consciously assisting or furthering the commission of the offence of smuggling, it cannot be prima facie stated that the truck was being wilfully used in the transportation of smuggled goods.

6. Neither the Carriers Act, 1865, nor the common law imposes any duty upon a common carrier to call upon his client who wants his goods to be transported, to open up the bags or packets which he is presenting, so that he may check up whether goods to be‑L transported are goods which are banned, or on which duty is payable but which has not been paid. Assuming he took up this exercise, he would not have the time to check up each and every type or nature of the goods presented for transportation, or whether they were banned or dutiable and, if dutiable, whether duty had been paid or not. If he took up such a gratuitous exercise, he would not have any customers left with him. Unless he got some hint that the goods were smuggled, he could not call upon his client to satisfy him as regards the contents of the bags or packets which he was presenting. In common law, where goods are delivered to a common carrier, it is understood that the consigner has impliedly warranted that the goods are not dangerous. A fortiori it must also be understood that the consigner has also warranted that they are not banned or smuggled' or such as imperil the common carrier to be prosecuted for its carriage or lose the vehicle in which they are being transported. A common carrier cannot be held liable for the act or omission of the consigner which amounts to a transgression of the law, which is without his knowledge, information or participation.

7. In instant case, Multan Khan, petitioner No.2 the owner of the transport company, took precaution to call upon the owners to', produce the delivery orders Annexures P6 to P10 issued by the Customs and Excise Officer at Peshawar to show that the goods were those which had been auctioned by them. He also equipped his Driver Muhammad Shahid with the said delivery orders and the five bilties showing that the goods being transported contained auctioned cloth If the cloth contained in the bags did not conform to the delivery Borders, malice could not be attributed to Multan Khan, petitioner No.2. In the absence of any evidence to show that either of the petitioners had any criminal link with Haji Gulab Noor, Ghulam Qadir or Muhammad Noor or that they had information or knowledge that the goods being offered to them for transportation were smuggled, ii cannot be said that the truck was being wilfully used in the transportation of smuggled goods. If any authority is required for this view, Haji Abdul Razzaq v. Pakistan (PLD 1974 S C 5) may be referred.

8. For the foregoing reasons, this petition is accepted and the three impugned orders of the Customs Authorities dated 28‑11‑1985, D 16‑3‑1986 and 30‑12‑1986 are declared to have been passed on the basis of no evidence and, therefore, being illegal and without lawful authority, are hereby quashed. There shall be no order as to costs. A . A. /M‑49/L Petition accepted.