2006 PLP 1375 (PTD)

SYED HAMID ALI SHAH, J.

Learned counsel for the petitioner states that the goods imported by the petitioner were recovered at the time of their import. Adds that the goods subject-matter of the instant petition were governed under S.R.O. No. 347(I) of 2002, dated 15-6-2002 wherein the goods in question fall in appendix-C and as such were liable to be released subject to the imposition of penalty Adds that respondents Nos.3 and 4 have proceeded against the petitioner under S.R.O. 547(I)/2005, dated 6-6-2005 for outright confiscation. Learned counsel for the petitioner has argued that the provisions of S.R.O. 547(I)/2005 are pot applicable to the case of the petitioner as the said S.R.O. is of subsequent date and has no retrospective effect.

2. Learned counsel for the Revenue, on the other hand, has stated that at the time of the release of the goods S.R.O. 547(I) of 2005, dated 6-6-2005 was applicable and as such the provisions of the S.R.O. 547(I) of 2005, dated 6-6-2005 will govern the goods in question.

3. Heard learned counsel for the parties and examined the record.

4. The instant question was dealt with by my learned brother Mr. Umar Ata. Bandial, J. in Writ Petition No.13498 of 2005 wherein he has held as under: "The penalty of confiscation got attached to the petitioner's goods simultaneously with the contravention of the prohibition. This happened on the date of the import manifest of their conveyance namely 30-5-2005 as recorded on the GD. As the relief of redemption fine as a lesser penalty under S.R.O. 374, a competent and binding instrument issued pursuant to section 181 of the Act was still available on 30-5-2005, therefore it is the lesser penalty that operated to apply simultaneously with the prohibition. The petitioner acquired a vested right to be burdened with the liability existing on the day when the prohibition was contravened by it. In any event, the petitioner is also immune from the impairment of its rights by retrospective enforcement of S.R.O.

574. As declared by the Hon'ble Supreme Court of Pakistan in the case of "Elahi Cotton Mills Ltd. v. Federation of Pakistan" (PTCL 1997 CL 260). A notification which is an executive act cannot be given retrospective effect to impart vested rights. To be treated in accordance with S.R.O. 374 a legally valid and binding instrument on 30-5-2005, is such a vested right of the petitioner. The impugned action, dated 4-7-2005 holding to the contrary is, therefore, illegal. It is declared to be without lawful authority and of no legal effect. The respondents Nos.2, 3 and 4 are consequently directed to decide the case of the petitioner strictly, in accordance with the law declared above."

5. For the foregoing, the instant petition is allowed with the result that the respondents are directed to proceed in the matter of the goods in question under S.R.O. 374 of 2002. M.H./A-57/L?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.