The petitioners have filed this Constitutional Petition in which following prayer is made:

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No. D- 1047 of 2005

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

J U D G M E N T

Date of hearing : 21^st October 2009.

Petitioners through : Mr.Khawaja Shamsul Islam, Advocate.

Respondent No.1 through : Mr.Shafi Muhammadi, Advocate.

Respondents 2&5 through : Mr. Ashiq Raza, D.A.G.

Respondents 3&4 through : Mr.Adnan Karim, A.A.G.Sindh a/w

Mr.Ejaz Ali, Assistant Excise & Taxation

Officer, Karachi.

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GULZAR AHMED, J.:- The petitioners have filed this petition in which following prayer is made:

I. Declare that the seizure of Petitioner No.1’ s vehicle Toyota Hilux Surf, bearing Registration No. BC-4768, Model 1998, 2982 CC, engine No. KZ-0427971, Chassis No. KZN-185-9006432 dated 30.7.2005 is illegal and violative of sections 168 and 171 of the Customs Act, 1969.

II. Directing the Respondent No. 1 to immediately return the vehicle Toyota Hilux Surf, bearing Registration No. BC-4768, Model 1998, 2982 CC, Engine No. KZ-0427971, Chassis No. KZN-185-9006432 to the Petitioner No. 1.

III. Grant permanent injunction restraining the Respondents, specially Respondents No.1 & 2, their agents, sub-ordinates, representative, officers or any other person(s) acting for and on their behalf from taking any coercive action (including but not limited to penal action in terms of Section 32 read with Section 156 of the customs act) and from taking any adverse action whether direct or indirect in pursuant to their illegal seizure of the petitioner’s vehicle.

IV. Declare that the letter dated 4.8.2005 written by Major Nasir Ahmed Cheema for Director General, Pakistan Coast Guards, Headquarters, is absolutely illegal, uncalled for and contrary to the earlier letter dated 14.9.2004, verification letters dated 1.10.2004 and 18.1.2005 all written by Major Jamshed Riaz Bhatti for Director General, Pakistan Coast Guards, therefore, letter dated 4.8.2005 has no value in the eyes of law and pursuant to this letter, the action of respondent No. 1 may also be declared as illegal and void, ab-initio and the Respondent No.1 may be directed to release the vehicle in question immediately to the Petitioner No.1.

V. Grant such other/better relief which this Honourable Court may deem fit and proper under the circumstances of the case.

VI. Costs of the petition.

Mr. Khawaja Shahmsul Islam, learned counsel for the petitioners has contended that petitioner No. 1 is a bonafide purchaser of vehicle Toyota Hilux Surf, bearing Registration No. BC-4768, Model 1998, 2982 CC, Engine No. KZ-0427971, Chassis No. KZN-185-9006432 (the said vehicle) and that the burden of bonafide ownership of said vehicle was discharged by the petitioner in terms of Section 187 of Customs Act, 1969 (the Act). He further contended that Registration Book of the said vehicle is a prima-facie evidence of the ownership of said vehicle and that the vehicle was not liable to be seized by the Customs Authorities and in doing so the Customs Authorities have violated the provisions of Sections 168 and 171 of the Act. In support of his submissions he has relied upon the case of IFTIKHAR AHMED V/S SECRETARY REVENUE DIVISION (2003 PTD 1739), SHEHZAD AHMED CORPORATION V/S FEDERATION OF PAKISTAN (2005 PTD 23) and COLLECTOR OF CUSTOMS SALES TAX AND CENTRAL EXCISE CUSTOMS HOUSE QUETTA V/S NEMATULLAH (2003 PTD 2118).

Mr. Shafi Muhammadi, the learned counsel for respondent No.1 relied upon the para-wise comments filed by respondent No.1 and contended that whole case of the petitioner is based upon false, fake and forged documents as there is no record of auction of said vehicle by the Pakistan Coast Guards nor the said vehicle belonged to Pakistan Coast Guards and that the petition raises disputed questions of facts and thus is not maintainable.

Mr. Ashiq Raza, learned D.A.G., appearing for respondent Nos.2 & 5, contended that the petition is not maintainable as it raises disputed questions of fact. He further contended that respondent No.5 Pakistan Coast Guards has already denied that the said vehicle was owned by it and he further referred to the affidavit filed by Major Jamshed Riaz Bhatti and stated that petitioners have not filed any counter affidavit either to the comments filed by the respondent No.5 or to the affidavit of the said Major.

Mr. Adnan Karim, A.A.G.Sindh, appearing on behalf of respondent Nos.3 & 4, referred to the order dated 13.10.2005 passed in this petition and contended that T.O.Form does not constitute a title to the said vehicle and no application for transfer of the said vehicle was filed by the petitioner No.1. He admitted that the Excise & Taxation Department has transferred the vehicle in favour of Muhammad Arif Suleman and that such was done on verification from the Pakistan Coast Guards and in terms of Section 27 the said vehicle must have been produced by Muhammad Arif Suleman before the Registering Authority.

The facts of the matter are that the petitioner No.1 claims to have purchased the said vehicle from one Muhammad Arif Suleman for a consideration of Rs. 20,00,000/-, which consideration is alleged to have been paid by pay order dated 25.1.2005 for Rs. 9,50,000/- pay order dated 26.1.2005 for Rs. 6,75,000/- and Rs. 3,75,000/- paid in cash to Muhammad Arif Suleman. It is further alleged that the said Muhammad Arif Suleman has purchased the said vehicle in auction from Pakistan Coast Guards and on verification from Pakistan Coast Guards, said vehicle was registered by the Excise & Taxation officer in his favour. The petitioner No. 2 being friend of petitioner No.1 had borrowed the said vehicle from the petitioner No.1 and was driving the same when on 30.7.2005 at about 10:15 a.m. the officials of respondent No.1 namely Directorate General of Intelligence & Investigation (Custom & Excise) seized the said vehicle from the custody of petitioner No.2. The petitioners visited the office of respondent No.1 many times to receive back the said vehicle but in vain and ultimately having no other efficacious alternate remedy, filed this petition with the prayers as noted above.

Para-wise comments have been filed by respondent No. 1 so also by respondent Nos.3, 4 & 5. Further comments have also been filed by respondent No.5. Affidavit of Major Jamshed Riaz Khan Bhatti has also been filed. No reply to the comments have been filed nor any counter/rejoinder affidavit is filed by the petitioner to the affidavit of Major Jamshed Riaz Khan Bhatti.

We have considered the submissions made by learned counsel and have gone through the record.

The claim of the petitioner No.1 is that he has purchased the said vehicle from one Muhammad Arif Suleman for a consideration of Rs. 20,00,000/- which the petitioner alleges to have paid to him by pay orders respectively of Rs. 9,50,000/-, Rs.6,75,000/- and cash Rs. 3,75,000/-. The petitioner has filed with the petition photocopies of two pay orders, which apparently are not in the name of Muhammad Arif Suleman as both these pay orders have been made in favour of M. Suleman. The date of transfer letter is mentioned as 25.1.2005, purported to be signed by Muhammad Arif Suleman. One of the pay orders filed by the petitioner in the sum of Rs. 6,75,000/- is dated 26.1.2005 which is shown to have been received by Muhammad Arif Suleman on 27.1.2005. In the ordinary course of business, it is not possible to accept, as a matter of fact, that seller of the said vehicle will sign the transfer letter before receiving the full consideration amount. This fact added with the fact that there is no receipt for cash payment in itself creates doubt as to whether there was transaction of sale of the said vehicle by Muhammad Arif Suleman to the petitioner No.1.

Be that as it may, the petitioner No.1 claims that he has purchased the said vehicle from Muhammad Arif Suleman who is stated to have purchased the same in auction from Pakistan Coast Guard. To support this plea, the petitioner has filed with the petition photocopy of registration book of the said vehicle in which the owner’s name is shown as Muhammad Arif Suleman, photocopy of a transfer letter dated 25.1.2005, application for registration of the said vehicle made by Muhammad Arif Suleman dated 01.10.2004, photocopy of delivery order No. Ord/1664/14126/Auc dated 14.9.2004 of Major Jamshed Riaz Khan Bhatti, letter of verification dated 30.9.2004 of Pervez Ahmed Junejo, Excise & Taxation Officer addressed to the Pakistan Coast Guard Karachi, photocopy of letter No. Ord/1664/16120/Auc dated 01.10.2004 of Major Jamshed Riaz Khan Bhatti of Pakistan Coast Guard addressed to the Excise & Taxation Officer, photocopy of letter No. Ord/1664/115 /Auc dated 18.1.2005 of Major Jamshed Riaz Khan Bhatti, photocopies of three tax payment receipts respectively in the sum of Rs. 6100/, 2400/- and 1400/-. The dates of these three challans apparently bear bank’s rubber stamp dated 24.9.2004, 29.9.2004 and 30.9.2004.

The Pakistan Coast Guard in its comments have taken the stand that they have sold to the said Muhammad Arif Suleman the vehicle bearing No. BA-914801, Toyota Hilux model 1996, Engine No.3L4017317, Chassis No. LN 106-0128979 in September 2004 and that through letter No.Ord/1664/17443/Auc dated 11.10.2004 Pakistan Coast Guard verified the auctioning of this vehicle to the Excise & Taxation Office Karachi. The Pakistan Coast Guard has denied that the said vehicle was sold by it and has informed the Customs Authorities that the said vehicle was never auctioned by it. Major Jamshed Riaz Khan Bhatti in his affidavit dated 29.4.2006 has mentioned the fact of auctioning of vehicle No. BA-914801 to Muhammad Arif Suleman who had deposited the bid money in National Bank of Pakistan on 09.9.2004 and that such auction was made with the approval of Board of Officers and after receipt of bid money, delivery order No. Ord/1664/16310/Auc dated 23.9.2004 was issued to the purchaser. He has specifically denied having signed the three following letters and labeled them to be forged and fabricated:-

1. Pakistan Coast Guard letter No.Ord/1664/14126/Auc dated 14^th September 2004.

2. Pakistan Coast Guard letter No.Ord/1664/16126/Auc dated Ist October 2004.

3. Pakistan Coast Guard letter No.Ord/1664/115/Auc dated 18^th January 2005.

To substantiate the sale of vehicle No. BA-914801 to Muhammad Arif Suleman, the Pakistan Coast Guard has filed photocopies of delivery order No. Ord/1664/16310/Auc dated 23.9.2004 signed by Major Jamshed Riaz Khan Bhatti, photocopy of receipt of this vehicle by Muhammad Arif Suleman dated 25.9.2004 and a photocopy of Challan of depositing of auction sum of Rs.3,40,000/- by Muhammad Arif Suleman dated 09.9.2009.

So far the first submission of learned counsel for the petitioners is concerned that the petitioner No. 1 is bonafide purchaser of said vehicle and by producing the registration book such burden stands discharged, it may be noted that in the face of fact of absolute denial of Pakistan Coast Guard the respondent No.5 of auctioning of said vehicle, the very registration book of the said vehicle becomes doubtful more so when the said registration apparently seems to have been made on the basis of a letter No. Ord/1664/14126/Auc dated 14.9.2004, which letter Major Jamshed Riaz Khan Bhatti by his affidavit has been labeled to be forged and fabricated. Muhammad Arif Suleman, from whom the petitioner No.1 alleges to have purchased the said vehicle, has not been joined as respondent and though through order dated 17.5.2006 the said Muhammad Arif Suleman was summoned to produce the documents of said vehicle but despite issuance of repeated notices to him, the same could not be served for the reasons that he was not found residing at the address mentioned in the registration book of the said vehicle and one Muhammad Ashraf Khan claimed himself to be the owner of the said house and did not knew Muhammad Arif Suleman and denied that he is residing at the said address. On this basis, it can be assumed that the address of Muhammad Arif Suleman in the registration book is a fake one. Besides the petitioner No.1 had not filed the challan of auctioning of said vehicle by Pakistan Coast Guard to show that auction price was deposited by Muhammad Arif Suleman. Merely filing of registration book in the name of Muhammad Arif Suleman without showing the payment of consideration to Pakistan Coast Guard will not itself constitute a valid document of ownership of the said vehicle as any transaction of sale has to be fully supported by further documents more particularly of payment of consideration amount to the Pakistan Coast Guard from whom the said vehicle is said to have been purchased. In the absence of challan showing depositing of consideration amount of said vehicle, its mere registration in the name of Muhammad Arif Suleman will not in itself constitute valid ownership of said vehicle. It seems that petitioner No.1 or the said Muhammad Arif Suleman have prepared forged and false documents showing the auction of said vehicle by Pakistan Coast Guard and through connivance of Pervez Ahmed Junejo, the Assistant Excise & Taxation Officer have obtained registration of said vehicle. The application for registration of the said vehicle filed by said Muhammad Arif Suleman in its item No.15 in place of old registration plate has been filled in as “nill unregistered” while in the registration book two previous registration numbers of the said vehicle are mentioned; the first one being BB-9354 and the second one being BA-914701. In any case Pakistan Coast Guard having denied having sold or auctioned the said vehicle and Major Jamshed Riaz Khan Bhatti having labeled three letters relied upon by the petitioner as forged and fabricated and there being no counter/rejoinder affidavit to such stand of the Pakistan Coast Guard, the respondent No.1’s plea that the said vehicle was a smuggled one also having remained undisputed, there will be a irresistible conclusion that the said vehicle was not bonafide owned or purchased by the petitioner No.1 but rather was a smuggled vehicle and Customs Authorities were justified in confiscating and impounding the same. The Customs Authorities in their comments have taken a stand that notice under section 171 Customs Act, 1969 dated 10.8.2005 was issued to the petitioner No.2 from whom the said vehicle was recovered but the said petitioner No. 2 avoided to receive the said notice and it was sent by post and also put up on the notice board. Such fact is also not disputed by the petitioners as no reply to such comments has been filed by them. The facts and circumstances of the case law relied upon the learned counsel for the petitioners are, therefore, distinguishable from the facts and circumstances of the present case and they have no application.

For the fore-going reasons, we find no merit in this petition. The same is, therefore, dismissed. Listed application is also dismissed.

The Secretary, Sindh Excise & Taxation Department be sent copy of this judgment with direction to make an enquiry against illegal and fraudulent registration of the said vehicle by Pervez Ahmed Junejo, Assistant Excise & Taxation Officer and take action against him not only departmental but also that of filing of complaint with the Anticorruption Authority. A report in this respect be filed by the Secretary, Sindh Excise & Taxation Department with the MIT of this Court within two months.

J U D G E

Aamir/PS J U D G E