GHULAM HUSSAIN RAMZAN ALI VS COLLECTOR OF CUSTOMS (PREVENTIVE), KARACHI, 2010 PTD-KARACHI-HIGH-COURT-SINDH 989 (2010)

(a) Limitation---

----Appeal---Limitation, reckoning of---While counting period of limitation the same has to be reckoned from the date of knowledge of the order against which appeal is sought to be preferred before higher forum.

Haji Hussain Haji Dawood v. M.Y. Kherati 2002 SCMR 343 and Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 rel.

(b) Counsel and client---

----Knowledge of counsel about decision of case amounts to knowledge of client.

Allied Bank of Pakistan Azad Kashmir v. Chaudhry Amir Baz PLD 1997 SC (AJ&K) 15 rel.

(c) Customs Act (IV of 1969)---

----S.196---Qanun-e-Shandat (10 of 1984), Art.85---Reference---Limitation---Knowledge of counsel---Dispatch of judgment---Appellate Tribunal dismissed appeal on 17-2-1998 and the order was assailed before High Court on 29-7-2006---Plea raised by appellant was that neither the order was ever received by him nor any reply was given by Appellate Tribunal in respect of various letters written for providing a copy of decision---Contention of the authorities was that the order passed by the Appellate Tribunal was sent to appellant through registered post---Validity---Documents of Appellate Tribunal were public documents and carried a great deal of sanctity with them and did not require any verification---Receipt of delivery of order via post and dispatch register established that the order had been duly served on the counsel of appellant and no adverse inference could be drawn---Reference application was barred by limitation and High Court declined to condone the delay---Reference application was dismissed accordingly.

Altaf Hussain and 2 others v. Muhammad Nawaz and 2 others 2001 SCMR 405; Shaikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 and Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 ref.

Sohail Muzaffar for Applicant.

Raja Muhammad Iqbal for Respondent.

ORDER

IRFAN SAADAT KHAN, J.---By this Special Customs Reference Application (R. A) the following questions of law have been raised:--

1.Whether the applicant being Transit passenger was required to make Declaration under sections 139 and 143 of the Customs Act, 1969?

2.Whether the provisions of section 2(s) of the Customs Act, 1969 are attracted in case of a passenger who was or is in Transit?

3.Whether the applicant being in Transit under the custody of F.I.A. could have committed an offence under section 2(s) of the Customs Act, 1969?

4.Whether the goods seized from the applicant was liable to confiscation in terms of section 168 of the Customs Act, 1969?

5.In view of the fact that the trial Court came to a conclusion on an admission of the Prosecutor that the applicant was not guilty of an act of smuggling under section 2(s) of the Customs Act, 1969, whether the appellate Tribunal was justified in taking a contrary view on same facts and law?

6.Whether the applicant is entitled to return of his seized Gold?

2. Mr. Sohail Muzaffar, learned counsel for the applicant at the very outset submitted that before deciding the above referred questions of law his application for condonation of delay may first be taken as the learned Custom and Excise and Sales Tax Appellate Tribunal (STAT) has passed the order on 17-2-1998 whereas this R.A. has been filed on 16-2-2007. The learned counsel submitted that the delay in filing this R.A. was due to the fact that the applicant did not receive the order passed by the STAT and upon receiving the said order has filed the present R.A. Hence, as per the learned counsel this delay is not on his part as he has made a number of representations before the STAT and no reply whatsoever had been given by the STAT in this regard. The learned counsel submitted that he even filed a Constitution Petition before this Court bearing D-1253 of 2006 which was disposed of by this Court on 6-2-2007, on which date he obtained a copy of the order passed by the STAT and thereafter without any delay filed the present R.A.

3. So far as merits of the case are concerned the learned counsel submitted that the issue already stands settled in his favour by a number of decisions given by this Court and in this regard filed copy of the order passed in C.P.Nos.D-833 of 1988 and D-243 of 1989. He therefore submitted that this R.A. may also be disposed of in the same terms as decided in the above referred C.Ps.

4. Mr. Raja Muhammad Iqbal the learned counsel appearing on behalf of the department vehemently opposed the said application for condonation of delay and submitted that the present R.A. is hopelessly time barred. The learned counsel further submitted that it is a trite law that a person coming to the Court in respect of time barred matters has to explain each day's default whereas the present R.A. is barred by limitation by approximately nine years for which no plausible explanation has been given by the applicant. He in this regard invited our attention to certain decisions given by the Superior Courts. The learned counsel further submitted that even on merits the applicant has no case as he has tried to bring in Pakistan smuggled goods and has thus violated the applicable provisions of the law, hence on this account also the R.A. is misconceived and is liable to be dismissed in limine.

5. We have heard both the learned counsel at length and in order to ascertain the real facts of the case had even called the R& P from the STAT.

6. Briefly stated, the applicant is an Iranian National who arrived from Tehran to Karachi on 21-12-1987 and was in transit for onward journey to Singapore. On examination of his luggage gold weighing 850 Tolas was recovered from his possession. As per the provisions of Customs Act, 1969 (the Act) the gold items fall under restrictive items therefore the said gold was confiscated by the custom authorities. A show-cause notice of February 1988 was issued to the applicant and he was called upon to show cause as to why the seized gold should not be confiscated and penalty imposed on him for violation of the Act. An appeal thereafter was filed by the applicant which was dismissed vide order-in-original dated 12-4-1992. The applicant preferred a Revision Application before the Secretary F.B.R. Due to change in law the matter was referred to the STAT which heard the matter on 17-2-1998 and thereafter dismissed' the appeal filed by the applicant. As per the record of the STAT a copy of the order was sent to the applicant through registered post. However, the applicant contends that neither such order was ever received by him nor any reply whatsoever was given by the STAT in respect of the various letters written by the applicant to the STAT on 2-5-1998, 5-3-1999, 11-6-1999, 30-7-1999, 5-6-2002, 15-5-2004, 3-7-2006 and 10-7-2006 for providing a copy of the decision dated 17-2-1998. Thereafter the applicant filed a Constitution Petition before this Court on 29-7-2006 and this Court vide order dated 6-2-2007 disposed of the matter by specifically observing as under:--

"Be that as it may, since the copy of order referred above, passed by the Tribunal has been supplied to the petitioner through his counsel, this petition has served its purpose and it is accordingly dismissed."

7. The applicant on receiving the copy of the order thereafter filed the present R.A. along with the application under section 5 of the Limitation Act by praying that the delay caused in filing the present R.A. may be condoned as this delay could not be attributed on the part of the present applicant.

8. While examining the R& P of this case we have noted that the order of the STAT clearly mentions the date on which the copy of the order has been sent to the applicant as well as the Collector Customs. The said file also specifically stipulates that the copy of the order has been sent through registered post. As per the letter dated 14-10-2006 written by Mr. Justice (R) Mian Muhammad Jahangir, Member (Judicial) STAT, to the Chairman STAT wherein a report of Muhammad Azhar Khan, Assistant Registrar was enclosed in which the facts are narrated as under:

"The case has been fixed on different dates, finally the appeal was fixed on 172-1998 and judgment was reserved at Karachi by the Bench comprising of Mr. Justice Akhtar Hassan, Chairman and Mr. Muhammad Aslam, Member (Technical). After writing the judgment, it was despatched (sic)to the parties on 26-2-1998 through registered post vide receipt No.966 at the address provided by the Counsel for the appellant i.e. M/s. Muzaffar and Co. 27-Jahangir Kothari Building M.A. Jinnah Road, Karachi."

9. A perusal of the order passed by the STAT would show that the appeal was heard on 17-2-1998 and on the same date it was announced in the presence of the counsel appearing on behalf of the applicant. In the R& P also in the order sheet of 17-2-1998 it has specifically been mentioned as under:--

"Arguments have been heard. Vide the detailed judgment of even date, the appeal is dismissed."

10. On scrutiny of the above facts it is clear that the learned counsel was in full knowledge about the outcome of the appeal filed by him before the STAT. However it is strange on his part that he kept mum and after the passage of more than 70 days applied for the copy of the judgment, which clearly depicts that the counsel was neither vigilant nor careful in respect of the appeal before the STAT In somewhat identical circumstances the Honourable Supreme Court of Pakistan in the case of Altaf Hussain and 2 others v. Muhammad Nawaz and 2 others 2001 SCMR 405 has held as under:--

"A litigant is required to pursue his case with reasonable diligence and care and his responsibility does not come to an end when the judgment is reserved. In such an eventuality he is supposed to establish contact with his counsel and remain in touch with him in order to find out the result of the case. The inordinate delay in filing the petition leads to two inescapable conclusions. First, that the petitioners were aware of the pronouncement of judgment and were not inclined to challenge it and when at a later stage they decided to file a petition for leave to appeal in this Court they mentioned a wrong date of knowledge of pronouncement of judgment therein to escape the bar of limitation. The petitioners did not pursue their case with reasonable diligence and their conduct was negligent during the period between the date when the judgment was reserved and the date on which they had professedly got knowledge of its pronouncement. The plea set up by them thus hardly constitutes a valid ground for condonation of delay."

11. It is also quite astonishing on the part of the counsel that he has claimed that he only came to know about the fate of the appeal when he received a call from his client who in turn was informed by some of his friends' lawyer of Karachi that the appeal has been decided. It appears that no serious effort was made by the counsel of the applicant to obtain the copy of the order passed by the STAT as apparently the gap in some of the alleged letters written by the counsel is approximately that of three years.

12. It is trite law that while counting the period of limitation the same has to be reckoned from the date of the knowledge of the order against which appeal is sought to be preferred before the higher forum. In the instant case when the STAT announced the order in presence of the counsel of the applicant on 17-2-1998, in our opinion for all practical purposes the limitation would start running from the said date. Reference in this regard may be made to the decision of the Honourable Supreme Court of Pakistan in the case of Haji Hussain Haji Dawood v. M.Y. Kherati 2002 SCMR 343 wherein the Honourable Supreme. Court has held that, "Party would be clearly entitled to challenge the order within the prescribed time counting the period from the date of his knowledge."

13. In another decision given by the Honourable Supreme Court of Pakistan in the case of Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 it was held that:--

"The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence. Even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when as valuable right has accrued to the respondents Nos.1 to 3. We are not satisfied that the petitioners were diligent or took due case in the matter."

14. In the instant case it appears that the counsel appearing in the present case was not vigilant enough to justify the delay in filing the present reference application. It is seen from the first letter written by the counsel dated 2-5-1998 that even this letter is written after more than 70 days of the announcement of the judgment which clearly shows the inaptness of the counsel. Had the counsel been vigilant, he would not have waited for so many days for obtaining the copy of the order. The whole purpose of the law in prescribing a period of limitation for appeal is to provide the appellant reasonable period of time within which he should make preparation for filing of the appeal. The proper approach is that the appellant must show through his conduct throughout the period from the passing of the judgment till the date of the filing of the appeal that he has been acting with due diligence and was quite vigilant and that his attitude was not careless. In the present reference application we have noted from the record that the attitude of the counsel has been too causal and he pursues the matter whenever he feels like. In our opinion the applicant has not merely to explain delay beyond the period of limitation but must also show that his conduct throughout has been vigilant enough for the Court to condone the delay that has occurred. Whereas in the present R.A., as noted above, the first letter for obtaining the copy of the judgment was written after more than 70 days and in a subsequent letter the learned counsel has mentioned that their client has come to know through his some friend's lawyer that his appeal has been decided which clearly shows that the counsel of the applicant was neither vigilant nor careful in pursuing the matter for obtaining copy of the order from the STAT. Reference in this regard may be made to the decision of the Honourable Supreme Court in the case of Shaikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 wherein it was held as under:--

"Person seeking condonation of delay must explain delay of each and every day to the satisfaction of the Court and should also established that delay had been caused due to reasons beyond his control---When the delay in filing the appeal was seemingly due to mere negligence and carelessness of the appellant who failed to pursue his case with due diligence, he was not entitled to any indulgence by the Supreme Court."

15. It is also to be noted that knowledge of the counsel about decision of the case amounts to knowledge of the client. Reference in this regard may be made to the decision of the Honourable Supreme Court of Azad Jammu and Kashmir in the case of Allied Bank of Pakistan Azad Kashmir v. Chaudhry Amir Baz PLD 1997 SC Azad Jammu and Kashmir 15 wherein it was held as under:--

"It is well settled that knowledge of the counsel is knowledge of the client. The legal principle that it was duty of the client to find out the position of the case cannot be disputed.

16. A perusal of the R & P of the case reveals that the copy of the order was sent to the counsel of the applicant on the same address at which his office is located even today. The Assistant Registrar of the STAT has affirmed that after writing of the judgment the same was dispatched to the parties on 26-2-1998 and the counsel of the Applicant was sent the copy vide postal receipt No.966. The Dispatch Registrar maintained by the STAT also affirms that the said impugned order was sent to the counsel of the applicant on 26-2-1998 vide Entry No.388. Article 85 of the Qanun-e-Shahadat Order, 1984 states as under:-

"85. Public documents.---The following documents are public documents. (1) documents forming the acts or records of the acts.

(i) ..

(ii) of official bodies and tribunals, and

(iii) "

17. The above Article clearly states that the documents of the tribunal are public documents and carry a great deal of sanctity with them. Reference in this regard may be made to the decision in the case of Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 wherein the Honourable Supreme held that public documents did not require any sort of verification". Applying the above principle in the instant case the receipt of the delivery of the order via post and the Dispatch Register would establish that the order has been duly served on the counsel of the applicant and no adverse inference in this regard could be drawn.

18. Hence in view of the above uncontroverted facts of the case in our opinion the present R.A. filed by the applicant is hopelessly time) barred, which is hereby dismissed in limine. As we have decided the R.A. on limitation issue, hence we do not deem it appropriate to dilate upon the merits of the case.

M.H./G-6/KReference dismissed.