2012 PLP 1365 (PTD)

10. The complaint has been examined in the light of the written and oral submissions of the parties and the facts on record.

11. The four falcons were brought into Pakistan by two Commercially Important Persons (CIPs) who, as such, were taken to the Rawal Lounge of Benazir Islamabad International Airport. As soon as their baggage arrived in the regular lounge, Malik Nadeem Aslam, a 'related person' as visualized in Chapter-I, Rule 2 of the Customs Rules 2001, approached the Customs authorities along with valid passports bearing the falcons ring-numbers and their Health Certificates issued by the UAE government. Clearance of baggage for CIPs and VIPs is normally done by the staff at Rawal Lounge. The four falcons were in three cages. The cages bore the airline tags showing the names of owners, flight number and date. These are admitted facts.

12. Admittedly, Malik Nadeem Aslam was asked to obtain Import authorization of the Ministry of Foreign Affairs and a certificate of the Ministry of Environment permitting the import of falcons. The owners of the falcons and Malik Nadeem Aslam left the airport as the government offices required to be approached were to open on 12-3-2012, after the week end.

13. The Customs officials declared the falcons to be 'unclaimed' when they knew that the owners of falcons were there in the Rawal Lounge. Their representative, Malik Nadeem Aslam, had presented all the documents. He was never asked that the owners of falcons should personally appear before the Customs officials. Admittedly, the passports of CIPs present in the Rawal Lounge were produced before the Customs officials. In the attendant circumstances, the falcons could not have been declared to be 'unclaimed'. In the ordinary course when a piece of baggage is found unclaimed, it goes to 'Lost and Found' Section to be disposed of through the prescribed procedure.

14. The Customs officials claim that as they did not have the facilities for keeping the falcons, they handed these over to the Wildlife Department for safe custody. The Wildlife Department also had no such facility. There can thus be no rationale for handing the falcons over to the Wildlife Department, which then approached the Magistrate with normal jurisdiction, as Illaqa Magistrate, over the airport area, for the release of the falcons in the forests of Murree. The law did not give the Magistrate such a jurisdiction. Nor were the officials of the Customs and the Wildlife Department empowered under the law to dispose of the falcons in this manner. The entire procedure that they adopted was illegal, mala fide, and apparently adopted to criminally deprive the owners of their high value possessions.

15. The falcons were neither legally seized nor confiscated. The provisions of sections 139, 168, 169 179, 180, 181 of the Customs Act were completely ignored. The falcons could not have been justifiably detained except to give an opportunity to the claimants to obtain the required permissions from the Ministries concerned. The owners had a month to complete these formalities. Malik Nadeem Aslam was not informed of the subsequent developments, even though he was diligently approaching both the Customs and the Wildlife officials. He was deliberately kept in the dark.

16. The entire chain of events appears to have been criminally contrived to deprive the complainants of the falcons. They were caused mental and emotional anguish and distress. According to them, they were caused a loss of Rs.35 million just as the value of falcons. They were denied the pleasure of hunting with these falcons in Pakistan. They had travelled from UAE to Pakistan for this purpose.

17. On 16-3-2012, this office issued notice to the Deptt for the production of falcons at the FTO Secretariat for delivery to their bona fide owners, but the concerned Customs officials failed to do so. Thereafter, on 30-4-2012, an SCN under Section 22 of the FTO Ordinance 2000 was issued to Mr. Tahir Habib Cheema, Deputy Collector Customs, and Mr. Tariq Mahmood Awan, Supdt Customs, asking them to explain why compensation, including an amount of Rs.35 million may not be awarded to the complainants.

18. Both Mr. Tahir Habib Cheema, Deputy Collector Customs, and Mr. Tariq Mahmood Awan, Supdt Customs, filed their replies on 4-5-2012, taking almost the same ground that compensation proceedings under section 22 of the FTO Ordinance, 2000 could be invoked only after the determination in terms of section 11 of the FTO Ordinance, 2000. They also contended that every passenger was under a statutory duty to declare the goods being imported and obtain clearance after satisfying the Customs that the import was in accordance with law. In the instant case, as no one claimed the falcons, these were handed over to the Wildlife Department for safe custody. Moreover, the signatures on the affidavit annexed with the complaint were, according to them, forged and did not tally with the signatures on the photocopies of the passports. Mr. Tahir Habib Cheema, Deputy Collector Customs, took the additional ground that the complainant had not prayed for compensation in the complaint, while Mr. Tariq Mahmood Awan, contended that under section 217 of the Customs Act, 1969, no suit, prosecution or other legal proceedings could lie against the Federal Government or any public servant for anything which was done or intended to be done in good faith in pursuance of Customs Act or Rules.

19. As regards, determination under section 11 of the FTO Ordinance prior to invoking section 22 ibid, there is no such requirement in FTO Ordinance. Section 22 of the FTO Ordinance reads as follows: "

22. Award of costs and compensation and refunds of amounts-- (1) The Federal Tax Ombudsman may, where he deems necessary, call upon a Tax Employee or the Revenue Division to show cause why compensation be not awarded to an aggrieved party for any loss or damage suffered by him on account of any maladministration committed by such Tax Employee or Revenue Division, and after considering the explanation and hearing such Tax Employee or Revenue Division, award reasonable costs or compensation and the same shall be recoverable as arrears of land revenue from the Tax Employee or Revenue Division. (2) In cases involving payment of illegal gratification to any Tax Employee, or to any other person on his behalf, or misappropriation, criminal breach of trust or cheating, the Federal Tax Ombudsman may order the payment thereof for credit to the government or pass such other order as he may deem fit. (3) An order made under subsection (2) against any person shall not absolve such person of any liability under any other law."

20. A notice was given on 16-3-2012 to the concerned officials for the production of falcons. They failed to do so. It was followed by a show-cause notice dated 30-4-2012, under section 22 of the FTO Ordinance. The contention of the Customs officials about the stage and time of issuance of this Show-Cause Notice thus is misconceived and not sustainable in the eyes of law.

21. The point that no passenger had claimed the falcons is also neither correct nor reasonable. During the hearing, it was admitted by the Customs officials that Sub-Inspector Jaffar of FIA (Immigration), Malik Nadeem Aslam and Mr. Gul Muhammad Jogezai, Ex-Governor of Balochistan, had met the Supdt Customs at about 2 a.m. on 10-3-2012, presenting valid passports bearing the ring numbers of the falcons, the Health Certificates issued by the UAE Government, and the airline tags. They had also informed the Customs officials that the foreign dignitaries were in the Rawal Lounge awaiting the falcons' clearance.

22. The next contention that the claim of compensation was not submitted by the complainants is also incorrect, as Rs.35 million is stated in para-5 of the complaint as cost of the falcons. An opportunity was given to the concerned officials to return the falcons, but they failed. Hence this point is repelled being contrary to the facts.

23. As for the forged signatures of complainants, during the hearing it was admitted that the falcons belonged to the complainants and so this belated objection is rejected as being spurious.

24. The last point is that according to section 217 of the Customs Act, 1969, no suit, prosecution, or, other legal proceeding lies against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of the Customs Act, 1969, or the rules made there-under. Suffice it to say that there is no immunity against patently fraudulent and perverse acts. The action of the Customs officials cannot be taken to be an act done in 'good faith'. Their acts were clearly mala fide and brought both the Government and the Pakistani nation into disrepute, locally as well as internationally. Findings:--

25. Maladministration in terms of section 2(3) of FTO Ordinance in unlawfully treating the falcons as 'unclaimed' is established. It is also manifest from the illegal confiscation of the falcons and their disposal in contravention of the law, for improper motives. Recommendations:--

26. Revenue Division to- (i) direct Supdt Customs (Mr. Tariq Mahmood Awan) and AC Customs (Mr. Tahir Habib Cheema) to either return the falcons to the complainants or pay them to the extent of Rs.35 million as cost of the falcons, in addition to paying Rs.one million as compensation for the mental and emotional anguish and distress caused due to their maladministration; and (ii) report compliance within 30 days.

27. The Wildlife officials have played a despicable role in the criminal transaction. A copy of these Findings be endorsed to the Secretary Wildlife Department of the Punjab for appropriate action. The Magistrate also assumed a jurisdiction which was never assigned to him. Without hearing the owners of the falcons, he allowed their release in the forests of Murree. The Hon'ble Chief Justice of Lahore High Court, Lahore, be also so apprised. M.W.A./99/FTO Order accordingly.