1990 PLP 447 (SCMR)

Musheer Pesh Imam, Advocate Supreme Court for Petitioner. M. A. Siddiqui, Deputy Advocate‑General for Respondents. Date of hearing: 2nd July, 1989. ZAFFAR HUSSAIN MIRZA, J.‑‑This is a petition for leave to appeal against the order, dated 7th June, 1989, by a Division Bench of the Sind High Court, refusing to stay the operation of the impugned order, dated 14th May, 1989, suspending the bonded warehouse licence of the petitioner to the extent of In‑Bonding or Ex‑Bonding the consignments of liquor. The facts arc that the Collector of Customs, respondent No.1 herein, has issued under section 13 of the Customs Act, 1969, a licence to the petitioner for a Private Bonded Warehouse for storage of Liquor and other specified goods. According to the petitioner, however, without a show cause notice, respondent No.l by the aforesaid order, dated 14th May, 1989, suspended the licence to the extent that the petitioner would not In‑Bond or Ex‑Bond the alcoholic liquor consignments. The reasons as mentioned in the order, that necessitated the action, were that in terms of Article 17 of the Prohibition (Enforcement of Hadd) Order No.4 of 1979, as held by this Court, "no Muslim can indulge in manufacture, import, transport, sale, possession or export of alcoholic liquor in Pakistan". As the petitioner's representations to the concerned authorities did not result in any relief to him he filed a Constitutional petition in the High Court challenging the order suspending his licence as stated above. An application for stay of the impugned order in the Constitutional petition was simultaneously submitted. A Division Bench heard and admitted the Constitutional petition to regular hearing by order, dated 31st May, 1989 and issued notice of the stay application to the Deputy Attorney‑General. However, upon hearing the counsel for the parties, the learned Judges of the Division Bench came to the conclusion that it would not be proper to grant relief as prayed, in view of the decision in the case of the Federation of Pakistan v. Nosher Rustam Sidhwa 1988 S C M R 1417. Accordingly by the impugned order in this petition, the learned Division Bench dismissed the stay application. Hence this petition. We have heard Mr. Musheer Pesh Imam, learned counsel appearing in support of the petition and the learned Deputy Attorney‑General to whom notice was issued on behalf of the respondents. It is an admitted position that the petitioner firm is a partnership concern of which all the partners are Muslims. It is also correct that in the case of Federation of Pakistan (supra) the Shariat Appellate Bench of this Court declared that portion of section 17 of the Prohibition (Enforcement of Hadd) Order, 1979, to be against the Injunction of Islam "which leaves a scope for the Government or a Muslim licensee to manufacture, import, transport, sell or possess any intoxicant or article containing intoxicating liquor meant for human consumption by a non‑Muslim citizen of Pakistan as a part of religious ceremonies or by a non‑Muslim foreigner." However, the High Court has 1 admitted the Constitutional petition of the petitioner for examining the contention that since there is no provision in the Customs Act entitling respondent No.l to cancel the licence of the bonded warehouse on the ground that it violates Art. 17 of Prohibition (Enforcement of Hadd) Order, 1979, the impugned order is without jurisdiction." The case of the petitioner accordingly is that the goods are kept in the bonded warehouse only while they are in-transit on importation for delivery to the ultimate consignees who are the embassies, foreign diplomats and other privileged persons or for delivery to foreign ships touching Karachi Port, therefore, the acts only comprising the handling of the goods do not fall within the mischief of the provisions of Hadd Order as expounded by this Court. It is contended that at any rate the action taken by the respondent was patently illegal as it offended the rule of natural justice in so far as no prior notice was given to the petitioners and the grounds relied upon do not constitute a valid basis under the Customs Act for cancellation or suspension of petitioner's licence. It is further submitted, so far as the prayer for interim relief is concerned, that beer shipment of the petitioner is lying at the port under heavy demmurage, causing financial loss as the petitioner cannot In‑Bond the consignment, which will be spoiled due to exposure to heat. After hearing the learned counsel we do not find it necessary to go into the questions of law raised by the learned counsel which touch the merits of the case under adjudication before the High Court. We arc also not inclined at this stage to order suspension of the impugned order of the Customs Authorities in the pending Constitutional petition, as that would result in permitting the petitioner to continue his business of storage in the bonded warehouse as usual in the offending goods however, we feel that as regards those goods which have already been imported and have been In‑Bonded for the purpose of release to the foreign consignees comprising foreign diplomats etc., no useful purpose will be served to keep them In‑Bonded indefinitely to the possible detriment of the petitioner and the consignees. The petitioner is, therefore, entitled to this much relief, to save him from irreparable loss and injury. In the circumstances we convert this petition into an appeal and partly allow the same with the result that the impugned order of the High Court shall be modified to the extent that the suspension of the petitioner's licence shall not be operative in regard to the release of the already imported and In‑Bonded stocks of alcoholic liquor subject to the compliance of the other legal requirements as usual to the satisfaction of the licensing authority. The appeal is disposed of it these terms with no order as to costs. M.A.K./K‑116/S. Appeal partly allowed.