1996 SCMR 83 (PLP)

Date of hearing: 23rd July, 1995. MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This petition for special leave to appeal has been brought to challenge the judgment of a learned Division Bench of the Peshawar High Court, Peshawar, dated 25‑5‑1995 whereby the Constitutional petition filed by Messrs Rais Khan Limited, Kabul, Afghanistan against the petitioners was accepted and the impugned Notification and the Public Notice dated 21‑11‑1994 prohibiting import, inter alia, of the Plastic Moulding Compound in transit to Afghanistan, were declared to be without lawful authority and of no legal effect.

2. Brief facts forming the background of this petition are that the respondent‑firm imported 32,000 bags (800 MTs) of Plastic Moulding Compound (PMC) of transit to Afghanistan. When the consignment reached the agreed Customs Port, Karachi, the goods were detained by the Collectorate of Customs (Customs House), Karachi, without assigning any reason. The respondent‑firm, in the first instance, therefore, registered a complaint with the Wafaqi Mohtasib (Ombudsman). After hearing the parties, the Wafaqi Mohtasib by his order dated 13‑10‑1994 directed the Customs Authorities to release the consignment immediately. Thereafter Notification NO.S.R.O.(1)/94 dated 21‑11‑1994 was issued by the Federal Government whereby bringing into Pakistan by sea, land and air in transit to a foreign territory, of goods mentioned therein including P.V.C. and P.M.C. material was prohibited. In pursuance of the said Notification, on the same day, a Public Notice was also issued informing all concerned that‑‑ " henceforth no import of yarn, dyes and chemicals, PVC and PMC materials, Polyester metalized film Black tea (except OP‑Pekoe) in transit to Afghanistan shall be allowed under Pak‑Afghan Transit Trade irrespective of date of issuance of letters of credit. All imports of aforesaid goof made after the issuance of this Public Notice shall be treated as contravention imports in terms of section 156(1)(64) of the Customs Act, 1969 and liable to confiscation under the provisions of Customs Act, 1969:' The goods were, however, released on receipt of demurrage, despite clear orders to the contrary, from Karachi Port for transportation to Afghanistan. Nonetheless, more than half of the consignment i.e. 16960 bags were detained by the petitioners at Dry Port, Peshawar. After having failed to get the remaining goods released, the respondent‑firm approached the Peshawar High Court for issuance of an appropriate writ‑‑ (i) declaring the action of the respondents in not releasing portion of the consignment in transit comprising 16960 bags of P.M.C. to be without lawful authority and of no legal effect; (ii) directing them to release the same immediately for transportation onward to Afghanistan; (iii) not to receive any demurrage charges for the goods, for, the goods have been detained by the respondents for no fault of the petitioner. The petitioners, in their parawise comments, besides controverting the assertion set out in the petition, raised quite a few legal objections.

3. The learned Judges in the High Court, after hearing the learned counsel for the parties and bare reading of the impugned Notification and the Public Notice, came to the conclusion that "import of P.M.C. material has been prohibited with effect from 21‑11‑1994, "in that, the phraseology used in the Public Notice is that henceforth no import of yarn, dyes anti chemicals, P.V.C. and P.M.C. materials in transit to Afghanistan shall be allowed under Pakistan Transit Trade irrespective of date of issue of letters of credit," which implied that the said prohibition shall not be applicable to goods imported into Pakistan under Pakistan Transit Trade prior to 21‑11‑1994. It was further held that. in pursuance of the impugned notification, all the goods imported after the issuance of the impugned Notice shall be treated in contravention of imports in terms of section 156(1)(64) of the Customs Act, 1969, and, therefore, it did not adversely affect the disputed goods which were dis embarked somewhere in April, 1994 long before 21‑11‑1994. In consequence, the reliefs as prayed for were granted by the High Court.

4. Mr. K.G. Sabir, learned counsel for the petitioners, contended that a! the first instance the disputed goods of the respondent‑firm had disembarked at Karachi Sea‑Port, therefore, the Peshawar High Court could neither take cognizance of the petition nor could grant any relief thereunder. This contention is devoid of any substance. The part of the goods were allowed at Karachi for transportation to Afghanistan in transit whereas the bulk of the A goods had been detained at Dry Port, Peshawar. It is thus clear that as per section 20(c), C.P.C., an appropriate writ could be claimed from a High Court within the territorial limits of which the cause of action wholly or in part arose. In the instant case, the only question which is very pertinent, is whether any cause of action as a whole or in part accrued to the respondent‑firm at Peshawar. It is an ,admitted fact that the disputed goods had been detained at Dry Port, Peshawar, and thus a part of cause of action arose at Peshawar also.

5. It was next contended by Mr. K.G. Sabir that the respondent‑firm was negligent in pursuing the matter and failed to obtain the release of the goods before the Notification and the Public Notice dated 21‑11‑1994 and as such was not entitled to any equitable relief. We regret that we have not been persuaded to accept this contention. The goods were in transit from Karachi to Afghanistan when part thereof were released while more than half of the same had been detained at Peshawar. There is, therefore, no negligence discernible on the record on the part of the respondent‑firm to get the release of the detained goods before 21‑11‑1994.

6. It was next contended that the impugned Notification and the Notice were wrongly construed to be prospective in operation. According to the learned counsel, the impugned Notification and the Public Notice were retrospective in effect and, therefore, the Prohibition Order was perfectly valid. This contention is equally fallacious. The impugned Notification and the Public Notice were construed by the learned Judges of the High Court to imply that the "import" of P.M.C. material was prohibited with effect from 21‑11‑1994 (underlining is ours) because "the language employed is vividly clear on this score". After reading the impugned Notification and the Public 8 Notice, we are in no manner of doubt that the prohibition contemplated thereunder could not be construed as retrospective in its operation. The reasoning of the learned Judges in the High Court is thus unexceptionable. The P.M.C. material in the case in hand had been imported somewhere in April, 1994, therefore, it did not fall within the mischief of the Notification and the Notice.

7. Nonetheless, let us consider if the impugned notification has retrospective effect. Statutes are ordinarily prospective in their operation. It is an accepted rule of construction that no statute is to be construed as having C retrospective operation unless such a construction appears to be clearly indicated by the terms of the statute itself or unless such interpretation is suggested by necessary implication. We are not concerned in this case with the question of retrospective operation of section 157(64) or the conditions relatable to section 128 or 129 of the Customs Act (IV of 1969); we are concerned with the question of retrospective operation of the impugned notification issued in pursuance of the power given by the aforesaid sections. The notification itself does not, by its own terms, make its operation retrospective and it would, in our judgment be extravagant to claim that by necessary implication it has retroactive operation.

8. We, therefore, uphold the findings of the learned Judges in the High p Court that both the Notification and the Public Notice did not cover the disputed goods and that the petitioners have acted without lawful authority to detain them disallowing the respondent‑firm to take them in transit to Afghanistan.

9. After hearing the learned counsel for the parties at length, we find no substance in this petition. We would accordingly refuse to grant leave to appeal. This petition is accordingly dismissed. C.MA. No. 66‑P of 1995 In consequence, the maintenance of status quo order passed in the aforesaid CMA on 31‑5‑1995 is withdrawn. The respondent‑firm would not be liable to any demurrage/penalty imposed at the rate of Rs.20,000 per day. AA./C‑162/S Leave refused.