1989 PLP 1131 (CLC)

I.A. Hashmi for Petitioner. Zia Pervaiz for Respondents. Date of hearing: 22nd February, 1989. ABDUR RASOOL AGHA, J.‑‑The petitioner Mohammad Hussain has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with a prayer to declare the order dated 4‑5‑1977 passed by the Deputy Collector of Customs (Preventive) and all subsequent orders passed by respondent Nos. 1 and 2 as mala fide, inoperative and without any force of law. The brief facts giving rise to the petition are that the petitioner is working as a Senior Traffic Supervisor in the P.I . A . Corporation posted at Karachi Airport when on the night between 6‑7 July, 1976 S.Nasiruddin Hyder Intelligence Officer of the Directorate of Customs Intelligence apprehended one S. Masood Ahmed at Karachi Airport from whose baggages 36 sets of golden ornaments and Pakistani currency to the tune of Rs.1,00,000 (Rupees one lac only) were recovered and an F. I. R. to that effect was lodged on 6‑7‑1976. After usual investigation, the Directorate of Customs Intelligence submitted challan against Syed Masood Ahmed only in the Court of Special Judge (Customs and Taxation) Karachi, he was convicted by the said Court. Syed Masood Ahmed preferred an appeal being Special Criminal Appeal No.22 of 1978 in the High Court of Sind which was heard and disposed of by way of judgment dated 31‑3‑1980 and the appeal was allowed and the appellant was acquitted. While proceedings against Syed Masood Ahmed were continuing in the course of which on 5th November, 1976, a Show‑Cause Notice for the adjudication proceedings in the matter was issued to Syed Masood Ahmed, it was also shown to have been sent to the petitioner but the same was not received by him. However, on 24‑11‑1976 the petitioner received a letter signed by Senior Law Officer (Preventive) informing that the Collector of Customs (Preventive) had refixed the date of hearing in the above proceedings for 29‑12‑1976. The petitioner by way of an application requested to provide him with the Show‑Cause Notice and background of the case and details to enable him to participate in the proceedings after preparation. It is the grievance of the petitioner that without providing any details etc. the matter was decided by respondent No. 3 whereby a penalty of Rs.5,000 (Rupees Five thousand only) was imposed on the petitioner Mohammad Hussain under section 156(8) of the Customs Act, 1969. The petitioner after obtaining the copy of the original Show‑Cause Notice said to have been issued to him submitted an appeal before the Collector of Customs (Appeals) which was heard on 10‑9‑1977 by respondent No.2 and the appeal was rejected by respondent No.2 vide order dated 13‑10‑1977 and thereafter the petitioner submitted Revision Petition to the respondent No.l. The petitioner by way of Telegram was required to appear before the Additional Secretary (Customs) but the petitioner could not attend the hearing and requested for another date by way of Telegram to the Second Secretary Revision (Customs) Islamabad. No intimation was received by the petitioner till 15‑9‑1980 when he received intimation that the Revision filed by the petitioner has been rejected. Feeling aggrieved, the petitioner has filed this petition challenging the actions and the orders passed by respondent Nos. 1 to

3. Mr. Iqtidar Ali Hashmi, the learned counsel has appeared for the petitioner and Mr. Zia Pervaiz for the respondents. Mr. I . A . Hashmi the learned counsel for the petitioner has vehemently argued that the adjudication proceedings were held without serving the petitioner with show‑cause notice as required under section 180 and section 215 of the Customs Act, 1969. He has further argued that the proceedings held against the petitioner are mala fide as according to the learned counsel the petitioner was not concerned with the alleged recovery of contraband articles, for which there is no evidence. He also emphasised that in the F.I.R. lodged by the Director of Intelligence and Investigation (Customs a and Excise) Karachi, the petitioner was not named nor he was sent up to trial along with S. Masood Ahmed before the Court of Special Judge (Customs and Taxation) Karachi. It is the case of the petitioner that the allegations made against him were false and baseless and he was involved at the instance of Customs Officer. It has been vehemently argued by the learned counsel for the petitioner that there was no evidence against the petitioner with Customs Authorities as to the effect that petitioner escorted Syed Masood Ahmed to the departure lounge and managed passing of the excess baggages or that he had assisted Syed Masood Ahmed in the illicit export of seized jewellery and the currency as alleged. Mr. Zia Pervaiz who has appeared or behalf of .the respondents assisted by the staff member of the Customs Directorate after consulting the papers could not controvert the contention raised by the petitioner's counsel and frankly admitted that the petitioner was not, shown as party in the case in the Court of Special Judge (Customs and Taxation) Karachi nor the allegations made in the show‑cause notice find mention in the F.I.R. lodged against Syed Masood Ahmed. The respondents have not filed any counter‑affidavit and according to us the adjudication proceedings in absence of any proof for the alleged allegations and orders passed without giving proper opportunity to the petitioner envisaged under the Customs Act cannot be sustained. The learned counsel for the respondents could not produce anything to suggest that the show‑cause notice as required under the law was served upon the petitioner or there was any material available with them in support of the allegations made against him. The fact that the name of the petitioner did not figure during all the proceedings including the trial held against Syed Masood Ahmed has not been disputed. Accordingly we are of the view that the allegations are not substantiated and there was no legal justification for adjudication proceedings and the penalty imposed on the petitioner are thus mala fide and in contravention of the provisions of the Customs Act,1 1969. For the above reasons, we hold that the orders impugned in this petition are wholly illegal and opposed to principles of natural justice. Consequently, the petition is allowed and the order of imposing fine on the petitioner by respondent No.3 is declared as without lawful authority and of no legal effect. In case the fine has already been recovered from the petitioner the same shall be returned to him. There will be no order as to costs. These are the reasons for the short order passed by us on 22‑2‑1989. The petition is allowed. A.A. /M‑719/ K Petition allowed.