2010 PLP (Trib (PTD)

SHER ZAHEER AHMAD KHAN, MEMBER (JUDICIAL).

With a view to resolve the difference of opinion between the learned Members: The Chairman/Member Justice (Retd.) Abdul Majeed Tiwana and the Member (Technical) Mr. Sarfraz Ahmad Khan of Lahore. Bench-I of the Customs, Excise and Sales Tax Appellate Tribunal in the titled second appeal: Ghulam Rasool v. The Collector of Customs, Multan, etc. against Order-in-Original No. 243/99, dated 25-5-1999 of the Collector (Appeals), Lahore, dismissing the appellant's appeal against Order-in-Original No. 22/99, dated 22-2-1999 of the Additional Collector of Customs, Multan, the learned Chairman, vide his order dated 24-4-2003, referred the same to this Special Bench under section 194-C(5) of the Customs Act, 1969 (hereunder called `the Act').

2. The file revealed that the learned Members of the Bench earlier seized with the appeal, having remained unable, by agreement, to frame and sign, as required by law the points of difference amongst them in the appeal until learned Chairman/Member Justice (R) Abdul Majeed Tiwana, J. retired from the tribunal, there was virtually no point(s) of difference in the appeal to be settled by this Special Bench, so the file was referred to the learned Chairman for necessary order. The learned Chairman, vide his eventual order dated 27-10-2003, directed as follows: "...In this particular case, manifestly one of the differing Member i.e. Justice (Retd.) Abdul Majeed Tiwana has retired. Therefore, this is well nigh impossible that the said Member of the Bench would state now the point or points of difference on which they differed earlier and, therefore, the necessity of fresh decision in this case is a sine qua non. Therefore, the file is sent back to the larger bench to dispose of the case in accordance with law and take fresh decision without reference to the previous controversy by the previous learned Members of the Bench...."

3. The brief resume of the facts necessary for the disposal of the appeal is as follows:

4. The officials of the Customs Intelligence, Multan, on 29-9-1997, caught hold of Toyota Hiace Van Registration No. PRL-9519, Engine No. 2L 0795363, Chassis No. LH61B-0009215 (hereinafter referred to `the van') in possession of one Nazir Ahmed son of Ghulam Rasool on the alleged secret information of the same having been smuggled one and its chassis No. having been replaced with that of a legally imported and registered wagon, and got it checked up by the Works Manager, Punjab Road Transport Corporation, Inter City Depot, Multan, who vide his Report No. 382/MWS-II/FJ, dated 2-10-1997, opined:-- "That it had not met accident of any sort: that it was in original condition; and that its chassis No. box had, after having been cut from the lower side, been got rewelded. And, as a consequence, seized it formally under section 168 of the Act vide recovery memo. dated 4-10-1997. Appellant Ghulam Rasool (hereinafter described the appellant'), on 9-10-1997 appeared before the Customs Intelligence, Multan, and producing the Registration Book of the van claimed its ownership having purchased it for Rs. 5,75,000 from one Mumtaz Khan under an open letter of transfer, but all that remained unproductive. The Customs Intelligence, Multan, sent the case to the Additional Collector (Appeals). Customs, Excise, and Sales Tax, Multan, for adjudication.

5. The Additional Collector (Appeals), vide a show-cause notice dated, 24-10-1997, charged the appellant and driver Nazir Ahmad for the violation of sections 2(s) and 16 of the Act read with section 3 of the Imports and Exports (Controls) Act, 1950 and also proposed against them penal action under Clauses 7,8,9,77,89 and 90 of section 156(1) and section 178 of the Act. The appellant contested the vires of the notice vide his written reply submitted on 25-11-1997.

6. The Additional Collector (Mr. M.B Tahir), vide his order dated 25-11-1997, constituted a Committee Consisting of Tariq Huda, Deputy Collector, and Siddique Sadiq, Assistant Collector (Audit and Intelligence), for examination of `the van' and report: "(i) Whether the chassis plate affixed on the subject vehicle is welded and replaced; (ii) Whether there is any evidence of welding in the surrounding of the Chassis No.; (iii) Whether the vehicle shows signs of any major accident; and (iv) ascertain model of the vehicle keeping in view the other variables such as its body, types and shape etc. In order to check whether it corresponds with its chassis No. affixed on it even of welded and replaced." It may not be out of place to observe here that no express reason appears to have been stated by the Additional Collector despite pre-existence on the record of the basic report on the subject of the Works Manager, PRTC, Multan, as to what special necessity was felt for re-examination of `the van' by the Committee.

7. The Additional Collector subsequently cancelled the above order on the alleged ground that the committee had shown its inability to give any opinion in such highly a technical and specialized field. The vehicle seems to have at any time during the pendency of the appeal, been referred to the Punjab Forensic Science Laboratory, Lahore, for expert opinion about the chassis plate. The Forensic Science Laboratory, in its report dated 18-2-1998 opined:-- "The chassis plate has been cut and another iron sheet bearing No.LH61B-0009215 has been welded abnormally."

8. The appellant, in the meanwhile, invoked the constitutional jurisdiction of the High Court vide writ petition: Ghulam Rasool v. The Deputy Director Customs Intelligence, Multan (Writ Petition No 561-98) for interim custody of the van, which was allowed vide order dated 25-2-1998.

9. The appellant challenged, before the Additional Collector, the legality, correctness and fides of report of the Punjab Forensic Science Laboratory, Lahore on multiple grounds and requested for re-examination of `the van' either by some other expert body as done by him in scores of other cases or by the committee earlier constituted for the purpose by the Additional Collector, previously seized with the case, but the same was turned down.

10. The Additional Collector, while placing explicit reliance solely on the report of the Forensic Science Laboratory, proceeded, vide his impugned order-in-original dated 3-5-1999, to outright confiscate `the van' under Clause (89) of section 156(1) of the Act. It would be advisable to reproduce below the operative part of the order: "The above-mentioned report of Forensic Science Laboratory, Lahore ratifies the prosecution version that a smuggled vehicle was purchased by the Rasp. and, after removing its chassis plate maliciously, the chassis plate of a legally imported vehicle was welded on the smuggled vehicle to hoodwink the agencies and to legalize this smuggled vehicle. The request of the defence that the vehicle may be re-examined is not accepted as Forensic Science Laboratory, Lahore is a recognized expert body in this specialized field and the reports of that organization are mostly accepted in this field. So many vehicles on the report of the Forensic Science Laboratory, Lahore, had been released or confiscated by this Collectorate in past placing reliance on such reports. Therefore, the report received from the Forensic Science Laboratory, Lahore is accepted in this case..."

11. The appellant challenged the above order before the Collector of Customs (Appeals) vide Appeal No. 707 field on 20-3-1999 who just dittoing the findings of the Additional Collector, dismissed the appeal, vide his Order-in-Appeal No. 743 of 1999, dated 25-3-1999 without at all adverting to or even touching the merits of the case and placing sole reliance on the report of the Forensic Science Laboratory, Lahore. The concluding portion of the order is set down below:-- "In view of the expert report referred to in the impugned order and the parawise comments by the Department, it is established that the subject vehicle has not been lawfully imported. The appeal being devoid of any merit is ordered to be rejected."

12. It may, however be remarked that, during the pendency of the appeal by the appellant before the Collector (Appeals), the Customs Authorities auctioned on 3-5-1999 `the van' despite the representations of the appellant to hold the auction proceedings in abeyance till the decision of the appeal.

13. The appellant assailed the above order before this tribunal on a number or legal and factual grounds.

14. In the face of the auction of `the van' by the Department during pendency or the appellant's appeal, before the Collector (Appeals), this tribunal ordered the auction-purchaser (named Moeen-ud-Din Qureshi) also being impleaded as respondent in the appeal vide its order dated 21-6-2001, observing that he was a necessary party in the appeal and directed the appellant to submit amended memo of appeal accordingly. The said auction-purchaser was, as a consequence, impleaded as respondent No. 3 and he was accordingly summoned by the Tribunal for being heard in the interest of justice, but he never turned up.

15. It may not be out of place to remark hare that the learned Bench, seized with the appeal (comprised of the Chairman/Member (Judicial) Justice (Retd.) Abdul Majeed Tiwana and Member (Technical), Mr. Falak Sher), vide its order dated 17-4-2001, which order was repeated a number of times even subsequently, directed the Investigating Officer to take into custody `the van' wherever it was available and bring it to the Customs House, Lahore, for being kept there till further order for its re-examination by any other committee of experts or by some other laboratory and all this was in view of the request for re-examination and the remonstrance of the appellant's counsel that the Additional Collector (Appeals) had revoked unduly the earlier order for re-examination of `the van' by the Committee of the Customs officials, earlier constituted by his predecessor and instead getting a report from the Forensic Science Laboratory, Lahore, in mysterious circumstances and then taken it as gospel truth, dismissed the appellant's appeal arbitrarily, but that order of the Bench was never complied with, and not only this there were instead filed late review petitions purportedly under section 194-B(2) of the Act for withdrawal of the above order; one by the Assistant Director, Customs Intelligence, Multan, on 2-5-2000; and the other, by the Collector of Customs, Multan, on 6-6-2001 contending that `the van' had rightly been auctioned under section 169(4) read with section 201 of the Act and that the same could not have been taken back from the auction-purchaser.

16. The appeal as above-stated, was eventually heard by the learned Bench consisting of the Chairman/Member (Judicial) Justice (Retd.) Abdul Majeed Tiwana and the Member (Technical) Mr. Sarfraz Ahmad Khan. The Chairman, in his draft judgment dated 5-3-2002, proposed to dismiss the said review petition, accept the appeal and set aside the impugned orders directing simultaneously the Collector of Customs, Multan, to take `the van' back from the auction-purchaser and to hand it over to the appellant. It would be advisable to reproduce the concluding paragraph of the judgment:-- "...In view of the above, since there was no evidence of smuggling of the vehicle in question (after the report of the Punjab Forensic Science Laboratory, Lahore, having been taken off the record being inadmissible in evidence) and the entire case having been tainted with mala fides of the seizing/prosecuting agency, and consequently the auction proceedings being without lawful authority and illegal we accept the appeal, set aside the impugned order and direct the Collector Customs, Multan, to take back the vehicle in question from the so-called auction-purchaser and hand it over to the appellant within a fortnight under intimation to the Assistant Registrar of this Tribunal, failing which the matter shall be brought to the notice of all concerned authorities, including the High Court and that might have to face the legal consequences..."

17. Mr. Sarfraz Ahmad Khan learned Member (Technical), in his dissenting note, conversely proposed acceptance of the review petitions, setting aside the impugned orders of the Adjudicating Officers and remand of the case for decision afresh after recording the statements of authors of the report of the Forensic Science Laboratory as well as the Seizing Officer/Investigating Officer and rebuttal evidence to be adduced by the Customs. The concluding para of the judgment is advisable to be reproduced below:-- "...In view of the foregoing and after taking into consideration the arguments of both the sides, I hold that the vehicle was lawfully seized and lawfully auctioned. No mala fides can be attributed to the concerned officers on any account. However, the learned counsel has a right to cross-examine the author of the report of the Forensic Science Laboratory as well as Seizing Officer/Investigating Officer. Therefore, the impugned order is set aside and the case is remanded back to the Additional Collector of Customs (Adjudications), Multan, for a fresh decision after recording the statements etc. of the witnesses, as aforesaid. He shall give proper opportunity of hearing and producing evidence etc. to both the sides."

18. As already remarked, both the learned Members of the Bench failed to, by the agreement, frame and sign, as required by law, the points of difference, among themselves, in the appeal till the time learned Member (Judicial) Chairman Justice (Retd.) Abdul Majeed Tiwana retired from the Tribunal and thus the framing of the points of variance by agreement by the learned Members become an impossibility. In the face of this impasse, the learned Chairman, vide his eventual order dated 27-10-2003, as above-stated, directed this Special Bench to dispose of the matter afresh in accordance with law without reference to the previous controversy in the learned Members of the Bench earlier seized with the appeal.

19. Arguments on behalf of the respective sides were heard at some length. The record, inclusive of the record of adjudication especially called and retained in the office, in view of the serious nature of the allegations of the appellant in the appeal, was minutely, scrutinized. The learned counsel for the appellant also submitted earlier his arguments in writing, which too were dispassionately considered.

20. They are adverted to first the review applications filed by the Assistant Director, Customs Intelligence and the Collector of Customs, Multan. The learned SDR contended that the tribunal's order was without jurisdiction inasmuch as it could give no such direction to the Customs Authorities to seize `the van' and to produce it for re-examination under the Act. He added that the Customs Authorities could seize the goods only under section 168 of the Act which were liable to confiscation and not otherwise and `the van', having been adjudged by the Additional Collector to have been smuggled and thus having been confiscated and thereafter having been auctioned in a lawful manner, was no more liable to confiscation and liable to seizure by the Customs Authorities. According to him, since the order dated 17-4-2001 of the Tribunal was not warranted by law rather it was contrary to the law so it amounted to a `mistake apparent from record' within the meaning of section 194-B(2) of the Act and thus liable to be rectified by it. On the other hand, the learned counsel for the appellant, while dwelling; on the provisions of section 194-C(7) of the Act, conferring powers on the Tribunal as are vested in a Court under the C.P.C. when trying a suit in respect of (i) discovery and inspection; and (ii) compelling production of other documents etc. maintained that the tribunal was fully empowered under the law to pass the order dated 17-4-2001 and direct Customs Authorities to take `the van' into custody and to produce it for re-examination.

21. The first question which corps up for determination is as to whether the Tribunal could pass the order directing the Customs Authorities to take into custody `the van' for its re-examination and inspection for settlement of the controversy in the appeal? In our considered opinion, the Tribunal was amply vested with the power under section 194-C(7) of the Act to pass the order in question and especially when the auction-purchaser of the `van' named Moeen-ud-Din Qureshi stood also added as respondent in the appeal being a necessary party, who as above-stated, never turned to present his view point despite notice and the above order as well lawfully enured against him. The stand of the learned SDR, that goods could only be seized by the Customs Authorities under section 168 of the Act or that `the van' could not be taken into custody by them being no more liable to confiscation or that on that account, the Tribunal's order on the point was not under the law worthy of compliance by the Customs Authorities under section 168 of the Act could only be termed as a ruse and chicanery and in thus totally fallacious, misplaced and far-fetched and worth no importance. The customs officers had to take possession of `the van' under the authority and warrant of the Tribunal for the ends of justice and not at all under their own authority vested in them under section 168 of the Act? The compliance of order of the Tribunal could by no means be said to in any way involve or imply the seizure under section 168 of the Act. The SDR's argument seems to be totally oblivious of the explicit and unambiguous provisions of section 194-C(7) of the Act.

22. The next point requiring attention is as to whether the Tribunal's above-said order amounted to a `mistake apparent form the record' within the meaning of section 194-B(2) of the and thus liable to be rectified by it? The answer of the question must definitely be in the negative because an order passed by the Bench concurrently and after full deliberation keeping in view the facts and circumstances of the case and then repeated on a number of dates, could not at all be termed as `mistake apparent from the record'/and there is a plethora of case-law on the subject PLD 1979 SC 741, PLD 1962 SC 335 and 1983 CLC

370. It may be remarked that no Court much less the Tribunal having the special and limited jurisdiction possesses inherent power to review its order unless this power is expressly granted by the statute (PLD 1981 SC 1994, PLD 1970 SC 1, PLD 1965 SC 55). It is undisputed that there is otherwise no provision in the Act conferring power on the tribunal to review its orders. With the above view of the matter, the applications for review are dismissed being not maintainable and being bereft of any substance and merits. The conduct of the Customs Officers, in not complying with the tribunal's order dated 17-4-2001 and its subsequent orders for taking into custody `the van' and then producing it for re-examination, could only be said to be highly unjustified, resistant to the authority of the tribunal contemptuous and mala fide.

23. Next are taken up for consideration the impugned orders of the Additional Collector and the Collector, the subject-matter of the present appeal. The finding of the Additional Collector in nutshell is that `the van' was smuggled one; that the appellant after having purchased `the van' removed its chassis plate and that he welded instead the chassis plate of a legally imported vehicle to hoodwink the agencies and to legalise the smuggled vehicle. So the points which require to be settled by this Bench are:-- (i) Whether `the van' was smuggled one; (ii) Whether the chassis plate available on `the van' was not genuine and was tampered with or changed and replaced; and (iii) Whether the chassis plate so available on `the van' was of any legally imported vehicle, having been welded instead after having removed its original chassis plate.

24. To prove or at least to discharge the initial onus of proof, that `the van' was smuggled one, was unquestionably the duty of the prosecution. It would suffice to just remark that there is absolutely no evidence or material available on the record proving or suggesting in any way that `the van' was smuggled one. On the basis of the bare and bald allegation that the chassis plate of `the van' was tempered with, or even supposing of the worst situation, that chassis plate was in any way rewelded, the same in itself won't in the absence of some other solid evidence, suffice to justify on any legal and reasonable hypothesis the positive finding that 'the van' was necessarily smuggled one. There is at all no evidence on the record showing that 'the van' is smuggled one. The benefit of doubt, as it is a well-settled proposition of law, must always be given as of right to the accused.

25. The next question is whether the appellant removed or replaced or tampered with the original chassis plate/chassis number of 'the van'? A careful and dispassionate scrutiny of all material available on the record, including the record of adjudication, reveals without any iota of doubt that there is no evidence worth the name much less the legal and viable evidence to prove the charge.

26. The sole basis of verdict of the Adjudicating Officers on the point is the report dated 18-2-1998 of the Punjab Forensic Science Laboratory Lahore, on which as above-noted, implicit reliance has been placed. This report is at all worthy of no, consideration or credibility on host of legal and factual grounds. The appellant, from the very outset, seriously challenged the legality correctness, vires and even the fides of the report. It is his allegation that the report was obtained on his back and without his knowledge or information and thus it is inoperative and ineffective qua his rights being violative of the principles of natural justice and especially in the face of the fact that, despite his application and concerted requests, the author(s) of the report were not called and allowed to be cross-examined for testing the genuineness and veracity of the report and the status and special knowledge and skill of its author. Reliance in this connection was placed on 1985 CLC 1781 (D.B.), 1974 SCMR 417 and 1985 PCr.LJ

8. The allegation does not appear to be without all substance in the facts and circumstance of the case. The record of adjudication does not bear out as to when, why and exactly by whom `the van' was got examined from the Punjab Forensic Science Laboratory, Lahore. There is equally nothing on the record to show if the appellant was ever in any way informed about or joined in the proceedings of examination of `the van' and this was despite the fact that all that was during the adjudication proceedings before the Additional Collector (Appeals) and after the appellant had joined by submitting his written reply to the show-cause notice, issues to him in the case. It needs to be noticed further that, as per record, `the van' was taken into possession by the Customs' staff on 29-9-1997 and thereafter it always remained in their possession till the end of February, 1998 when the appellant got that on superdari pursuant to the order dated 25-2-1998 of the Hon'ble High Court in writ petitions Ghulam Rasool v. Deputy Director Intelligence etc. (No. 561 of 1998) and during that long interregnum they were absolutely free to handle 'the van' or manuplate it and tamper its chassis plate any way they liked and, be that as it may, the appellant could not be held responsible for the state or condition of `the van' to which it possibly underwent during the said period for lack of his access to and control on it. In such circumstance, non-joining of the appellant in the proceedings of examination by the Forensic Science Laboratory, and claiming that the customs' officials were not obliged to inform and join him therein, could only be said on ironical travesty of law and justice. So the report got from the Forensic Science Laboratory, Lahore, on the back of the appellant, could not, in the above state of affairs, be said to be a valid and legal piece of evidence. It is moreso when the appellant requested the adjudicating authorities for either summoning the author(s) of the report for their cross-examination or for re-examining 'the van' from the Forensic Science Laboratory, Islamabad, or by any other body of technical experts, which was spurned down without any sufficient reason whatever.

27. Leaving the above aside, the report of the Forensic Science Laboratory, Lahore, could not be implicitly relied upon as sole basis of verdict of the Adjudicating Officers also for the reason that it was substantially in conflict with or at least not on all fours and in complete consonance with the basic report dated 2-10-1997 of the Works Manager, PRTC, Multan, obtained by the prosecuting agency itself and forwarded as a piece of evidence with the case to the Additional Collector (Appeals). The report of the Works Manager, PRTC, Multan, about `the van' is to the effect that: " .It did not meet with accident of any sort; that it was in its original condition; that its chassis number box was rewelded after having been cut from the lower side; that it was of 1998 model that it bore chassis number: LH61B-0009215, and Engine No. 2L-0795363...." It may here be noted and of course with surprise that this report was neither adverted to nor discussed either by the Additional Collector or by the Collector (Appeals) and nor there is on the record anything indicative of the fact that the same was in any way discarded with or cancelled, rather, as would be seen later, the department appears to have stressed thereon as a piece of evidence and as basis for not getting `the van' re-examined by the Committee of the Customs Officers, constituted earlier by Additional Collector (Appeals). The report dated 18-2-1998 of the Forensic Science Laboratory, Lahore, conversely is that:-- "The chassis plate had been cut and another iron sheet bearing No. LH61B-0009215 had been welded abnormally."

28. Even a cursory glance on both of the reports would clearly show that there is in them irreconcilable and patent contrast inasmuch as the alleged cutting of the chassis plate of `the van' and replacement instead of the iron sheet bearing the chassis number LH61B-0009215 through the welding process is not at all spelt out from the report of the Works Manager, PRTC, Multan. It needs to be emphasized that the factum of cutting of the chassis plate of `the van' and replacement instead of the iron sheet, bearing the Chassis No. through the process of welding was conceivably not such a thing which could not have been discernible by the Works Manager rather it could be open even to the naked eye of even a lay-man. The Works Manager, who had the occasion to examine `the van' on 2-10-1997 after it was taken into possession by the Customs staff on 29-9-1997, stated, as above seen, in his report only this much that the chassis number box of `the van' had been rewelded from its lower side (and obviously not completely after having been cut, and he never observed that the chassis plate of `the van' had been cut and replaced by some other sheet bearing the chassis number by welding abnormally as subsequently opined in the report dated 18-2-1998 of the Punjab Forensic Science Lahore. The report of the Works Manager always existed on the record of adjudication and was, as already remarked, forwarded by the prosecution agency along with the case to the Additional Collector for adjudication. The failure of the Works Manager to observe that the chassis plate had been cut and other iron sheet bearing the chassis number had been welded abnormally, as is the report of the Forensic Science Laboratory, renders the report open to serious doubt and especially when seen that `the van' had continuously been in possession of the Customs officials right from 29-9-1997 till the end of February 1998 when it was got by the appellant on superdari under the order of the Hon'ble High Court and throughout this time he obviously had no access to `the van' and further that he was never joined in or informed about the examination of `the van' from the Forensic Science Laboratory, Lahore. In any event, the irreconcilable contrast in the reports of the Works Manager, PRTC, Multan, and the Forensic Science Laboratory, Lahore, has virtually the effect of cutting the whole prosecution case to its root, and, in any case, the same directly necessitated not only the re-examination of `the van' as also requested by the appellant, either by the forensic Science Laboratory, Islamabad, or by some other body of the experts specialized in the field, but also the desirability of looking for some other strong viable corroborative evidence, which the Adjudicating Officers failed to do. Not only this, the Customs Authorities, as seen above in detail, even resisted and failed, for reasons best known to them, the Tribunal's just and most appropriate effect to get `the van' re-examined in the greater ends of justice.

29. It requires to be noted further that the Additional Collector (Mr. M.B Tahir), who, as already seen, initially happened to proceed with the adjudication of the case, had, vide order dated 25-11-1997 (and sent for compliance to different quarters vide No. C.No. 67/97/Adj/ Customs/8899, constituted the committee comprising of: Mr. Tariq Huda, Deputy Director and Mr. Saddique, Saddique, Assistant Collector (Audit and Intelligence) to examine `the van' in the presence of the accused persons in order to ascertain:-- (a) whether the chassis plate affixed on the subject vehicle was welded and replaced; (b) whether there was any evidence of welding in the surrounding of the chassis number; (c) whether the vehicle showed signs of any major accident; (d) ascertaintg the model of the vehicle keeping in view the other variables such as its body, type and shape etc. In order to check whether it corresponds with its chassis number affixed on its even if swelded and replaced. but the report of the Committee was never got and neither there is available on the record nor any reason therefore. There, however exists on the record of adjudication a letter of the Deputy Director (Dr. Naeem Ejaz Qureshi), Directorate General, Intelligence and Investigation, Multan (bearing No. C. No.C11(v)Cus/seiz/57/97/1619, dated 16-12-1995) to the Additional Collector (Appeal) in response to his above order (No.C. No. 67/97/Addj/Cus/Cus8898, dated 25-11-1997) stating: "that in presence of expert opinion, already on record, it is felt that there is no requirement of further examination by a committee comprised of non-technical person. If at all required the Seizing Officer may also be included in the committee to represent the Directorate General." It has already been observed that, at the time when said letter was written by the Deputy Director, there existed on the record only the report dated 2-10-1997 of the Works Manager, PRTC, Multan, and not of course the report of the Forensic Science Laboratory, Lahore which is dated 18-2-1998. The above reveals that the report of the Works Manager, PRTC Multan had always been considered and stressed upon by the prosecuting agency as a piece of evidence. The Additional Collector (Appeals) stated in his order impugned in this appeal that the Committee previously formed for tendering expert opinion on the point in issue, had shown its inability to do so far lack of expertise. This seems to be against the facts. There is absolutely nothing available either on the record of adjudication or brought on the record of the appeal before this Tribunal showing that the Committee of any of its members had shown its/his inability to tender the opinion in the matter for the so-called lack of expertise and neither the term of the reference given to the Committee appears to require the expertise of the highest quality rather the matter by and large was determinable on general observation and insight and this view is confirmed even by the nature of the reports of the Forensic Science Laboratory, Lahore set out above in extenso. The only irresistible inference which can possibly be drawn is that revocation of mandate by the Committee the Additional Collector (Appeals) in supersession of order of his predecessor was totally without any justification and, in any case, not at all for the reason stated by him in his order and most probably all that was on account of the said letter of the Deputy Director Intelligence and Investigation soliciting that there was in case no requirement of further examination of `the van' by the committee. The conduct of the Additional Collector in the case appears to be really surprising and not at all of an independent and impartial adjudicator.

30. In the face of all the above-said facts and circumstances of the case, the report dated 18-2-1998 of the Forensic Science Laboratory could not by any means be made the sole basis of the verdict by the Adjudicating Officers being illegal and shrouded in gravest doubt and mystery and thus ineffective. They were in the circumstances, well nigh obliged under the law to look for further evidence in support of the charge and apply their independent mind to the fact of the case. It is an established proposition of law that any authority entrusted with the function of adjudication, is obliged while determining a controversy, not to in any way abdicate its authority in favour of any one else muchless in favour of any opinion of any agency, and that too when uncorroborated by any other evidence of any kind and even shorn of substantiation of the supporting testimony of its author or promoter. Suffice would it to rely on the point of PLD 1984 Kar. 302 and KLR 1994 CC

705. Discarding with the said report, there is at all left no evidence on the record proving the charge and showing that the appellant cut the chassis plate/place of `the van' and replaced it by iron sheet bearing some other chassis number.

31. The next tier of finding of the Additional Collector (Adjudication) is that the chassis plate of certain legally imported vehicle was welded on `the van' after having cut out its original chassis plate. The finding must have to be brushed aside obviously being based on conjectures and surmises and being devoid of any foundation whatever. The logical question before entertaining that allegation would be where is the originally legally imported vehicle, the chassis plate whereof was allegedly got for being welded and affixed on `the van'? There is' no clue of that vehicle. No effort appears at all to have been made to trace out that vehicle or to collect any of the record thereof which could obviously be available in a number of concerned offices and departments. The failure of the prosecution to do so is suggestive of nothing but the fact that the charge on the point levelled by it and the eventual finding of the Adjudicating Officers are totally conjectural, unfounded and frivolous.

32. The learned counsel for the appellant, while seriously criticizing the conduct of the Additional Collector (Appeals), urged that he unduly and mysteriously spurned down the most earnest, apt and genuine request of the appellant for re-examination of `the van' and, in this connection, he gave instances of a number of identical cases (especially the cases: C.No. 66/97, C.No.60/98 and C.No.105/97) in which there were got, over and above the report of the Forensic Science Laboratory, Lahore, re-examined the vehicle more than once from different agencies and, as a consequence, the vehicles were leased even unconditionally and there appears to be no rebuttal thereof. The Additional Collector, in his impugned order, while stating the reasons of relying solely of the report of the Punjab Forensic Science Laboratory, Lahore, and rejecting the appellant's application for re-examination of `the van' himself observed that the Forensic Science Laboratory, Lahore, was a recognized expert body in this specialized field and the reports of that organization were mostly accepted and so many vehicles had, on its report, been released or confiscated by the Collectorate in the past and thus its report was accepted in the case. This is obviously preposterous rather ridiculous. The reports per se and solely could not universally be the decisive and determinative criteria of the disputes. In any event if his claim is really correct then what could be the explanation of his conduct in getting the vehicles re-examined in other cases for reports over and above the reports of the Forensic Science Laboratory, Lahore, as contended by the learned counsel for the appellant. Again, as per his own order the reports of the Forensic Science Laboratory, Lahore are mostly accepted, and the term mostly is obviously indicative of the fact that there are as well the cases in which its reports were not accepted. So the reports per se and in themselves could not be the sole criteria of acceptance or rejection thereof. The criticism of the learned counsel regarding the conduct of the Additional Collector could not, in the above circumstance, be said to be totally inapt bereft of all substance.

33. The learned SDR took pains to contend that the Adjudicating Authorities as well as the different Benches of this Tribunal acted upon the reports of the Forensic Science Laboratory solely and exclusively and consequently released or confiscated the vehicles in question. According to him, the rule of consistency and equity needed to be kept in mind and applied in this case as well. The contention, on the face of it is bereft of any legal warrant and backing and thus cannot at all be given any importance whatsoever because the facts and circumstance of each case differ from the other, so the finding in one cannot legally be the basis for the finding in other. As regards the alleged desirability of keeping in mind the rule of consistency and equity and the application thereof, the same on the face of it, is totally uncalled for, inapt and misplaced. It needs to be emphasized even at the cost of repetition that the report of Forensic Science Laboratory, Lahore as discussed above in detail, was obtained on the back of the appellant and behind the wall in mysterious circumstances without expressly revoking the mandate of committee consisting of the officials of the Customs Department itself, constituted earlier by the Additional Collector, with rather a thorough and all embracing term of reference, and in the face of pre-existence of an Expert Report earlier got by the prosecuting agency itself from the Works Manager, PRTC, Multan and even expressly cancelling that and a long period after `the van' had been out of possession of the appellant and it had been in the exclusive possession and control of the Customs officers, with unfettered freedom of manipulation. The report, as already observed, was diagonally in conflict on material particulars with the report of the Works Manager PRTC, Multan and the appellant was refused the right even, to cross-examine the author(s) of the report, or, in the alternative, to get the van re-examined by any other authority or agency in the interest of justice. Keeping in mind the said facts and other circumstances of the case, the question is could the report of the Forensic Science Laboratory, be legally, morally or justifiedly accepted and that too solely as a valid and viable piece of evidence in the case. The answer must be in the emphatic 'No'.

34. The learned counsel for the appellant, while referring to the various proceedings on the record, contended that the customs authorities with the obvious object of concealing their illegal act, high-handedness, mala fides and misuse of their unbridled authority, auctioned the van' in violation of principles of lis pendens, as the auction is ineffective and inoperative being without authority and want of legal sanction and being tainted with (sic) support of his contention, referred to, 1995 MLD 1554.

35. The above contention of the learned counsel seems to have a lot of force therein. It is undisputed that against the order-in-original dated 22-2-1999 of the Additional Collector (Appeals) the appellant filed his appeal before the Collector (Appeals) on 20-3-1999, and then forthwith received the notice of `the van' from the customs officers on 23-3-1999, which obviously indicates that the customs staff initiated the auction proceedings soon after the Additional Collector concluded the adjudication on 22-2-1999. `The van' was auctioned on 3-54999 admittedly during the pendency of the appellant's appeal before the Collector of Appeals, which was decided by him on 25-5-1999. It also appears to be unquestionable that the appellant, after having received the auction notice, forthwith made a representation to the Assistant Collector (HQ) and therein, apprising him of institution of the appeal against the order or the Additional Collector and also providing him a copy of memo of appeal, requested him to postpone the auction proceedings at least till the disposal of the appeal before the Collector, but he did not listen and, as above stated, auctioned `the van' on 3-5-1999 without awaiting the disposal of the appeal. The appellant then lodged on the same day viz. 3-6-1999 a written complaint with the Collector of Customs, Multan and requested him to hold in abeyance the finalization of the auction, but that was turned down.

36. It may hereby be noted that the power under section 169(4) of the Act, given to the Collector or any other officer of customs authorized by him in this behalf, is absolutely discretionary which is unquestionably exercisable in meeting the exceptional and extraordinary situations and of course most sparingly. Neither the auction notice given to the appellant nor the other record of auction available in the adjudication file bears out nor there was even otherwise shown on behalf of the Department in the appeal any reason whatsoever muchless any extraordinary or exceptionable reason for the auction of `the van' in such an indecent unwholly and exceptional haste and hurry setting at naught even the barest principles of justice and fair play.

37. The learned SDR, while repelling the contention of the learned counsel for the appellant, maintained that `the van' was auctioned by the Customs Authorities in exercise of their lawful authority under section 159(4) of the Act after complying with the necessary prerequisites and no fault could be found therewith. He further argued that the doctrine of lis pendens, a maximum of common law, cannot have a supervening effect on statutory law.

38. The contention of the learned SDR, that principle of lis pendens is merely a doctrine of common law, does not seem to be wholly correct. The principle of lis pendens is a universally recognized and accepted rule of justice. It is a principle of law, equity, good conscience and public policy and there is a plethora of case-law on the subject and suffice would it refer in this connection to PLD 1961 Lah. 623, PLD 1975 Lah. 909 and 1987 CLC

459. The basic object underlying principle is to maintain status quo and preserve the corpus of the lis during the continuance of litigation and till the final decision of the dispute so as to be ultimately made over to the adjudged right-holder irrespective of the fact whether any injunctive order was passed by the Court or tribunal I seized with the lis. So the principle of lis pendens must take precedence especially where there is colourful, dubious and mala fide exercise of jurisdiction in passing an order by an authority bestowed upon under the law that jurisdiction in blatant and flagrant disregard of its power under the law and in violation of all the canons of justice and fair play or even of the principle of natural justice as the situation unquestionably in the present case is.

39. Recapitulating the above discussion, what boils down is as follows: The Seizing/Prosecuting Agency detained `the van' on a baseless information of its allegedly having been smuggled one and being a chassis plate of legally imported vehicle. `The van' was got examined on the back of the appellant, from the Works Manager PRTC, Multan, and on the sole basis of his report and without caring for tracing out the alleged legally imported original vehicle, the chassis plate whereof was statedly welded on `the van' seized `the van' and sent up the case for adjudication. The Addl. Collector, confronted with the stand of the appellant in his reply to the show-cause notice issued by him in the case, constituted a committee of the customs officials for re-examination of `the van' and report instead of deciding the case on the basis of evidence viz. the repot of the Works Manager, PRTC, Multan forwarded to him with the case by the prosecution. The Additional Collector then mysteriously revoked the mandate of the committee on the alleged ground that it had expressed its inability to execute the job for want of requisite technical skill which was factually incorrect and real cause conversely was the disapproval of the re-examination of `the van' by the Deputy Director of the Intelligence and Investigation (an officer of the prosecuting agency) on the purported ground of pre-existence and sufficiency in the case of the report of the Works Manager, PRTC, Multan. `The van' was again cryptically got examined from the Punjab Forensic Science Laboratory, Lahore, during the pendency of the adjudication proceedings on the back of the appellant despite the fact that was a futile exercise because `the van' had since long been in exclusive possession and control of the customs staff without an access to it of the appellant and thus the genuine state and condition thereof could not legally and justly be vouchsafed. The appellant was blatantly denied the right of cross-examination the author of the Laboratory's report and even his request for re-examination of `the van' was spurned down notwithstanding the hard fact the same Adjudicating Officer had, it a number of identical cases, got the vehicles re-examined even more than one despite the availability therein of reports of the Forensic Science Laboratory and then released the vehicles. The Collector of Customs, without even touching the merits of the case and using his independent mind, dismissed the appellant's appeal in a slipshod manner, and thus just confirmed the order of his subordinate. The customs staff proceeded with the auction of `the van' as soon as the Additional Collector concluded the adjudication despite the pendency of the appellant's appeal before the auction at least till the decision of the appeal and with an exceptional unholy haste auctioned it finally. The appellant's complaint in that regard to the Collector of Customs and request not to confirm the auction was also spurned down. The Tribunal's orders for the production of `the van' for re-examinations were contumaciously resisted and foiled by the Customs Authorities and the last chance of testing the correctness or otherwise of the charge in the case was once for all set at naught. Could it, in the above circumstances, still be said that `the van' was rightly and legally seized, or was it legally liable to confiscation or was the auction of `the van' legal and untained with ulterior considerations, or was the conduct of the concerned custom's authorities in the case just proper and bona fide, or was `the van' really smuggled one? The answer could only be in the said `No'. In the above circumstances, we, holding that the van' was not at all liable to confiscation, and that the entire proceedings conducted in the case, were tainted with bias, mala fides and arbitrariness, accept the appeal, set aside the impugned orders of the Addl. Collector and the Collector of Appeals. We should, in the peculiar facts and circumstances of the case, order for the restoration of `the van' being violation of principle of lis pendens but for the alternative request on behalf of the appellant to allow him the sale proceeds in full, we accordingly order that entire amount of the sale proceeds of `the van' should be made over to the appellant within a period of one month from the date of this judgment is communicated to the Collector of Customs, Multan. C.M.A./187/Tax(Trib.) Appeal allowed.