BABA AGENCIES through Proprietor VS SECRETARY REVENIJE DIVISION FEDERAL BOARD OF REVENUE, ISLAMABAD, 2008 PTD-KARACHI-HIGH-COURT-SINDH 742 (2008)

Customs Act (IV of 1969)---

----S. 32---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Deposit of documents by Clearing Agent on basis of information provided by exporter---Order-in-original imposing penalty on Clearing Agent on charge of misdeclaration for finding banned goods in container of exporter---Pendency of criminal case against Clearing Agent in Court of Special Judge---Constitutional petition by Clearing Agent raising plea that no charge of misdeclaration could be alleged against him---Validity---Constitutional petition against judgment of Customs authorities would. not be maintainable without impleading Federation of Pakistan for its being a necessary party---Allegations levelled against Clearing Agent would require evidence---Any observation in such matter would affect pendency of criminal case---Licence of Clearing Agent had not been cancelled or suspended by order- in-original, which was operative with no effect to his business---High Court dismissed constitutional petition in limine.

Rahat Hussain v. Collector of Customs (Prev.) Custom House, Karachi and 2 others 2003 CLC 1860 ref.

Ammar Yasir for Petitioner.

Raja Muhammad Iqbal for Respondents.

Rizwan Ahmed Siddiqui, DAG.

ORDER

MRS. YASMIN ABBASEY, J.---Being aggrieved by the order of Collector maintaining the order-in-original, dated 6-9-2006, whereby the petitioner being the clearing agent was penalized by imposing a penalty of Rs.30,000 to be deposited within 15 days and the licence suspended on 12-6-2006 was reinstated till finalization of case under Crime No. S1/Miscellaneous/204/06-Exp. EW by the Court of Special Judge (Customs, Taxation and Anti-Smuggling), Karachi, this petition has been filed.

It is argued by learned counsel for the petitioner that in view of admitted fact that the container was stuffed by the exporter and this petitioner being clearing agent has just presented the documents on the basis of information provided by the exporter for clearance of port, hence no charge of misdeclaration can be alleged against him. Even if the contentions made by learned counsel for petitioner are taken as correct the fact that in view of the observation made at the trial stage criminal proceedings have been initiated against the petitioner and the matter is sub judice before Special Judge (Customs, Taxation and Anti-Smuggling), Karachi as such under these circumstances any observation made in this petition either way will affect on the proceedings and final disposal of criminal case pending before the Special Judge (Customs, Taxation and Anti-Smuggling), Karachi.

Whereas learned counsel for the respondents has raised objection as to the maintainability of petition that in against to the judgment of Customs authorities, Federation of Pakistan is a necessary party. To support his arguments he has referred the case of Rahat Hussain v. Collector of Customs (Prev.) Custom House, Karachi and 2 others (2003 CLC 1860), wherein it is observed that:--

"Apart from the above defect, this constitutional petition is also defective on another ground. The petitioner has challenged the order of Wafaqi Mohtasib which required to join Federation of Pakistan as one of the respondents in the petition. Failure of the respondent to join Federation of Pakistan as a respondent had rendered the petition as defective liable to be dismissed."

In view of foregoing reasons, we are of the view that besides the maintainability of petition the allegations levelled against the petitioner also require evidence and any observation in this matter will affect the pendency of criminal proceedings. Even otherwise by the impugned judgment neither licence of the petitioner has been suspended nor has been cancelled. It is operative with no effect to petitioner's business. With these observations petition stands dismissed in limine along with the listed application.

These are the reasons for the short order announced on 27-2-2008.

S.A.K./B-29/KPetition dismissed.