INSPECTOR GENERAL, FRONTIER CORPS VS ZAIN ALI, 2017 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 1858 (2015)

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

----S.196---Control of Narcotic Substances Act (XXV of 1997), S. 72---Constitution of Pakistan, Arts. 141, 143 & Schedule IV Lists---Transporting of narcotic substances---Applicability of Customs Act, 1969---Provisions of Control of Narcotic Substances Act, 1997, has overriding effect on other laws for the time being in force.

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

----S. 196---Reference to High Court---Scope of reference before High Court is related and dependent upon such questions which arise out of the orders of Appellate Tribunal---Jurisdiction of High Court in such behalf is limited only to the extent of question of law but not in any incidental and ancillary question which was not issue in proceedings.

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

----S. 196---Control of Narcotic Substances Act (XXV of 1997), S. 32---Constitution of Pakistan, Art. 199---Reference to High Court---Release of vehicle---Supervisory jurisdiction of High Court---Dispute was with regard to possession of vehicle in question which was allegedly used in transporting huge quantity of narcotic substances---Customs authorities confiscated vehicle under the provisions of Customs Act, 1969 but Appellate Tribunal set aside the order---Plea raised by criminal investigating agency was that a heavy quantity of narcotics was recovered from the vehicle and custody of the same could not be decided under Customs Act, 1969---Validity---In view of the confined/limited scope of S. 196 of Customs Act, 1969, High Court declined to set aside the order passed in respect of vehicle in question, however, High Court, in exercise of its supervisory jurisdiction under Art. 199 of the Constitution, set aside the order passed by Trial Court remanded the matter for passing appropriate order in respect of vehicle, in view of the provisions of S. 32 of Control of Narcotic Substances Act, 1997---Reference was disposed of accordingly.

Muhammad Hassan Mengal along with Haji Azam, Law Officer, Customs for Petitioners.

Khalid Ahmed Kubdani for Respondents.

Date of hearing: 13th October, 2015.

JUDGMENT

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This Customs Reference is directed against the order-in-appeal dated 27-5-2013 ("impugned order") passed by the Customs Appellate Tribunal Bench-I, Karachi, ("the Tribunal") whereby the appeal filed by the respondent No.1 against the Order-in-Original No. 134 of 2011, dated 25-04-2011, passed by the Additional Collector Customs Quetta, was accepted, consequently a shows-cause notice and subsequent orders passed by the customs officials were declared illegal, void ab-initio, without jurisdiction and without lawful authority. The petitioner being aggrieved from the impugned order filed the instant reference under Section 196 of the Customs Act, 1969 with the following law points: -

1."Whether the Customs Appellate Tribunal Bench II, Karachi has erred in deciding matter in hand on the basis of conclusion drawn in another case which was having no binding effect upon the instant matter.

2.Whether the learned Customs Appellate Tribunal has erred in interpreting provisions of 187 and 157(2) of the Customs Act, 1969.

3.Whether the Customs Appellate Tribunal Bench II, has miss appreciated the provisions of the section 223 of the Customs Act 1969 and has given a decision contrary to the said provision of law.

4.Whether the Customs Appellate Tribunal has also erred in deciding matter in view of section 403, Cr.P.C, Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and section 26 of the General Clauses Act.

5.Whether the Customs Appellate Tribunal has miss appreciated the facts and probabilities of the case and decided the matter on surmises.

6.Whether the Customs Appellate Tribunal was bound to decide the matter in hand as per its own record and decide point in issue independently without being influence by the order of any other forum i.e. under the criminal hierarchy.

7.Whether the Customs Appellate Tribunal was not bound under the law to consider this facts that the Frontier Corps was/is having the powers of custom officers as per section 6 of the Customs Act, 1969 and so were competent to initiate the proceedings under said act and sent the matter to the competent authority for adjudication."

2.The learned standing counsel inter alia contended that the Tribunal has adopted misconceived interpretation of Sections 187, 157(2) and Section 67 of the Customs Act, 1969; that the Tribunal has wrongly held that the Frontier Corp (F.C) is not empowered to exercise the power under the Customs Act, 1969; that a time barred appeal against the order-in-original dated 25-04-2011 was entertained for which no plausible explanation was rendered; that under Section 193 of the Customs Act, the appeal was required to be filed within thirty (30) days but the same was filed after more than two (02) years of order-in-original, therefore the impugned order is not sustainable that the vehicle Toyota pick-up double cabin was rightly confiscated as 350 kilograms charas were recovered from the same. Learned standing counsel finally urged for setting aside the impugned order-in-appeal with prayer to restore the order-in-original dated 25-04-2011.

3.Mr. Khalid Ahmed Kubdani Advocate appearing for respondent No.1 as well as for the intervener viz. Ghulam Muhammad, strongly opposed the contention and stated that the vehicle in question was taken into custody by Noshki Police on the complaint of Naib Sobedar Niamatullah of Chaghi Militia on 30-01-2011; that when the said vehicle was intercepted by the FC personnel, 350 Kilograms chars were recovered from the same; that the driver and the vehicle were detained by the Chaghi Militia (F.C.); that the vehicle in question belongs to the intervener Ghulam Muhammad which was rented out to the respondent No.1 against monthly rent of Rs.30,000/- and said vehicle was further rented out by the respondent No.1 to one Abdul Aziz Baloch; that the vehicle in question was detained in a narcotics case, therefore the respondent No.1 filed an application under Section 516-A, Cr.P.C. before the Special Judge CNS/Sessions Judge, Noshki (hereinafter "the trial Court"), but the application was rejected vide order dated 25-06-2011. The rejection order was assailed before this Court in Criminal Miscellaneous Quashment Petition No. 50 of 2011, which was accepted vide order dated 11-07-2011; that after acceptance of aforesaid petition again the FC officials had refused to release the vehicle on which a Contempt Application No. 08 of 2011 was filed by the respondent No 1; that during pendency of the contempt application, the respondent No. 1 came to know that vide order in original dated 25-04-2011, the vehicle in question had already been confiscated in favour of the State; that on getting knowledge, the petitioner filed an appeal under Section 194-A of the Customs Act, whereby the order in Original was set aside and the whole proceedings before the customs hierarchy were quashed; that the vehicle in question was detained in connection with narcotics case, therefore only Special Judge CNS was competent to decide the fate of the vehicle. He propounded that since the vehicle was released in favour of the respondent vide this Court order dated 11-07-2011, therefore the Tribunal has rightly quashed the proceedings before the customs hierarchy and instant reference is also liable to be dismissed.

4.Heard. Record perused.

5.Before attending the contention raised by the learned counsel for the parties, it is imperative to add here that the real object of providing an appeal/reference to the High Court against the order passed by the Tribunal is confined and restricted only to the question of law. Such question necessarily should originate and stem from the proceedings. In the instant case initially FIR No.09 of 2011 was registered under section 9(c) of the Control of Narcotics Substances Act, 1997 ("the CNS, Act") and challan whereof was also submitted before the trial Court, whereas Section 76 (reproduced hereinbelow) provides overriding effect to the CNS, Act over the other laws:--

"76. Act to override other laws.---The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force."

The CNS Act is the latest and more exhaustive law on the subject and the territorial limits of the CNS Act has been extended to the whole of Pakistan, therefore the cognizance of the crime under CNS Act shall necessarily be taken by the Special Judge CNS, therefore section 72 of the CNS Act being relevant is reproduced as under:

"72. Application of the Customs Act, 1969.---All prohibitions and restrictions imposed by or under this Ordinance on the import into, export from Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1969 (IV of 1969), and the provisions of this Act shall apply accordingly:

Provided that, notwithstanding anything contained in the Customs Act, 1969 (IV of 1969), or any other law for the time being in force, all offences relating to narcotic drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act:

Provided further that, where the officers of customs apprehends a person involved in any offence relating to narcotics drugs, psychotropic substances or controlled substances shall be empowered to carry out inquiry and investigation in the same manner as an officer authorized under this Act."

6.Thus, in view of the provision of Articles 141 and 143 of the Constitution of Islamic Republic of Pakistan ("the Constitution") read with Federal Legislative List Parts-I and II in Schedule-IV of the Constitution, the provision of CNS Act has overriding effect over the other laws for the time being in force in the country.

7.Section 196 of the Customs Act relates to the reference to the High Court in which any person or collector aggrieved of an order passed under section 194-A of the Customs Act may prefer a reference stating any question of law arising out of such order. Thus the scope of reference before the High Court is related and dependent upon such question which arise out of the order of the Tribunal and the jurisdiction of the High Court in this behalf is limited only to the extent of question of law, but not in any incidental and ancillary question which was not issue in that proceedings. Thus in view of the provisions of CNS Act, the customs hierarchy was not competent to take the cognizance of the matter, therefore the Tribunal has rightly quashed the proceedings before the customs hierarchy and has rightly set aside the order in original through impugned order-in-appeal dated 27-05-2013. Thus, the impugned order being unexceptional does not warrant any interference by this Court.

8.It is further to be appreciated that the CNS Case No.03/2011, registered vide FIR No. 09 of 2011 was finally decided by the trial Court vide judgment dated 08th September, 2011, whereby the accused Zain-ud-Din son of Ghulam Haider was convicted and sentenced under section 9(c) of the CNS Act to suffer imprisonment for life with fine of Rs.1,000,000/-. The judgment was assailed in Criminal Appeal No.213 of 2011, whereby through short order dated 22-07-2014 the conviction recorded under Section 9(c) of the CNS Act was converted into section 9(b) of the CNS Act, and the appellant was sentenced to suffer R.I. for one year with fine of Rs.5,00,000/-. In the judgment passed by the trial Court, the following order was made in respect of the case property:

"CASE PROPERTY ORDER.

Case property i.e. 350 Kgs Charas are confiscated in favour of the State after expiry of appeal period while the vehicle double door Hilux bearing registration. No.KM-5979 has already been released on superdari by the Hon'ble High Court vide order dated 11.7.2011.

9.It is imperative to observe here that the trial Court while confiscating the contraband in favour of the State passed no order in respect of vehicle in question on the strength that said vehicle has already been released on superdari by this Court vide order dated 11-07-2011, but perusal of case file transpires that the order of this Court dated 11-07-2011, passed in Criminal Miscellaneous Quashment Petition No. 50 of 2011 was no more in field. The record shows that after obtaining the order dated 11-07-2011 from this court, when the respondent No.1 approached the office of Chaghi Militia (F.C), the vehicle was not released to him, rather a Review Petition No. 04 of 2011 was filed by the Inspector General, FC Balochistan before this Court and the said review petition was accepted by this Court vide order dated 14-09-2012, whereby the order dated 11-07-2011 was recalled. The order passed in review petition shows that the same was passed on the strength of the order-in-original dated 25-04-2011, passed by Additional Collector Customs, Quetta, whereby the vehicle in question was confiscated in favour of the State, therefore the respondent No.1 was directed to approach the Tribunal against the order-in-original passed by the Additional Collector Customs.

The referred to order-in-original was set aside by the Tribunal vide impugned order in appeal dated 27-05-2013, while the order dated 11-07-2011 of this Court was already reviewed by this Court while accepting the Review Petition No. 04 of 2011 vide order dated 14-09-2012 and the judgment of the trial Court was passed on 08th September, 2011.

From the above it is clear that when the conviction was recorded by the trial Court on 08-09-2011, the order dated 11-07-2011, passed by this Court was in field, but the vehicle was not released to respondent No.1 on superdari and after recalling the said order in the Review Petition, the order for release of vehicle on superdari is no more in field. Section 32 of the CNS Act is relevant in this behalf, which for the ease of reference is reproduced hereinbelow:

"32. Articles connected with narcotics.---(1) Whenever any offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which or by means of which such offence has been committed shall be liable to confiscation.

(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold along with, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation;

Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed."

10.In the instant custom reference, in view of the confined/limited scope of section 196 of the Custom Act, 1969, we cannot set aside the order passed by the trial Court in respect of the vehicle, therefore in the peculiar circumstances of the instant case, while exercising the supervisory jurisdiction under Article 199 of the Constitution, the order/observations made in respect of the vehicle by the trial Court in its judgment dated 08.9.2011 are set aside. The trial Court i.e. learned Special Judge, CNS/Sessions Judge, Noshki is directed to pass an appropriate order in respect of the vehicle in view of the provisions of section 32 of the CNS Act, 1997. The respondent No.1 as well as the intervener Ghulam Muhammad would be at liberty to approach the trial court by filing application(s) afresh for release of the vehicle in question under the relevant provisions of law. On receipt of any such application(s), the trial Court shall decide the same strictly on merits in accordance with law without being influenced by the observations made in the instant order or by any other order passed earlier in this case.

The custom reference is disposed of in the above terms.

MH/44/Bal. Order accordingly.