MUHAMMAD SHAHID VS FEDERATION OF PAKISTAN, 2009 PTD-LAHORE-HIGH-COURT-LAHORE 1541 (2020)

(a) Interpretation of statutes---

----While interpreting fiscal instruments, benefit of the same must go to the subject.

(b) Personal Baggage, Transfer of Residence and Gift Scheme Import of Vehicles Rules, 2007---

----R.3 (i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Word "import"---Connotation---When petitioner booked vehicle in question for import in Pakistan, it was not more than three years old but at the time of arrival of vehicle into Pakistan, period of three years had elapsed---Effect---Word "import" was not to be taken in the context of merely the date of import but entire process of import---Process of import involved number of stages and all stages of import had been completed at a time when vehicle was not more than 3 years old---High Court directed the authorities to determine age of vehicle of petitioner by counting number of years from the date of its manufacturing till the date of its shipment after due verification of relevant documents establishing both the dates---If age of vehicle in question was not more than three years on the day of its shipment, the same should be released provided evidence regarding the information was found genuine---Petition was disposed of accordingly.

Mian Abdul Ghafoor for Petitioner.

Miss Kalmar Parveen for Respondents.

Date of hearing: 24th April, 2009.

JUDGMENT

IRFAN QADIR, J.---Petitioner seeks a writ of amandamus from this Court for release of vehicle imported by him under rule 3(i) of the Personal Baggage, Transfer of Residence and Gift Scheme Import of Vehicle Rules, 2007 appended to the Import Policy Order,-2008.

The facts relevant to this case are that the petitioner who was working abroad claims that he is entitled to import vehicle not more than 3 years old under the Personal Baggage. Transfer of Residence and Gift Scheme Import of Vehicles Rules, 2007. The petitioner arrived in Pakistan on 18-11-2008 and one day prior to his departure in Pakistan the vehicle was shipped by the shipping company vide bill or lading, dated 17-12-2008. The vehicle reached Pakistan vide GM No.4891, dated 26-1-2009 Index No.20. The petitioner filed goods declaration form (GD-1) at CES Dry Port vide GD No.3455, dated 19-2-2009 through Messrs Danish Traders, Customs House Agent, Lahore for seeking clearance thereof under the Personal Baggage Scheme. The respondents examined the vehicle and refused to release the same on the ground that the vehicle imported by the petitioner was more than 3 years old since it reached in Pakistan in January, 2009 whereas the period of 3 years 'had expired on 31-12-2008.

Learned counsel for the petitioner contends that petitioner imported vehicle in terms of para.8 of the Import Policy Ordinance, 2008 read with rule 3 of Personal Baggage, Transfer of Residence and Gift Scheme Import of Vehicles Rules, 2007. According to learned counsel for the petitioner, the petitioner took all the steps qua import at a time when the vehicle was less than 3 years old. In support of his contention, he has relied on goods declaration form, bill of lading and invoice. Learned counsel however admits that when the vehicle was actually imported into Pakistan a period of 3 years had elapsed on that date. Despite this, the learned counsel contends that all the steps qua the import of the car were complete at a time when car was not 3 years old except the actual import. He emphasizes that these facts entitled the petitioner to seek the benefit of the Personal Baggage, Transfer of Residence and Gift Scheme Import of Vehicle Rules, 2007. Learned counsel for the petitioner also relies on two parallel cases wherein in similar circumstances the vehicle was treated to be not more than 3 years old.

Learned counsel for the Customs Department on the other hand contends that vehicle being 3 years old on the date of arrival in Pakistan was rightly detained by the respondents.

I have given my anxious consideration to the proposition involved and also gone through the policy in question. The policy as regards the determination of the age of the vehicle is silent on the question whether it is to be reckoned from the date of its actual import or from the date on which all the steps were taken towards such import. The policy in this regard is silent. It is well-settled principle of law that in interpreting such instruments the benefit of the same must go to the subject. Even otherwise in the context of these rules the word "import" is not to be taken in the context of merely the date of import but the entire process of import. This process involves a number of stages and according to the learned counsel for the petitioner all the stages of import had been completed at a time when vehicle was not more than 3 years old.

It is manifest from the record of this case that respondent refusal to release the vehicle in question is based on sheer indifference and apathy. They have failed to perform their obligation of resolving the issue in. question by omitting to take note of the following essential considerations which are necessary for resolution of the issue in question:--

(i) The date of manufacture of the car.

(ii) The two evidence of similar cases produced by the petitioner.

(iii) In case there was any ambiguity in the mind of any official of customs about the impact of the word "import" in the policy in question the matter ought to have referred to the higher authorities.

It is clear from the facts and circumstances of this case that respondents have failed to perform their functions in accordance with law. In this background petitioner is justified in filing the instant writ petition.

For what has been stated above a direction is hereby issued to respondents to determine the age of the vehicle of the petitioner by counting the number of years from the date of its manufacture till the date of its shipment after due verification of relevant documents establishing both the dates and if the age of the car in question was not more than 3 years old on the day of its shipment the same shall be released provided evidences referred to in para.6 of the writ petition are found genuine. This writ petition is disposed of accordingly.

M.H./M-379/LOrder accordingly.