ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P No. D-1182 of 2010.

 

1.   For order on Nazir Report dated 07.06.2011

2.   For hearing of Misc No. 11383/2010.

3.   For hearing of Misc No. 11384/2010.

4.   For Katcha Peshi.

5.   For hearing of Misc No. 4694/2010.

 

16-04-2012

Mr. Ahmed Hassan Rana, learned advocate for petitioner.

Mr. Ghulam Haider Shaikh, learned counsel for respondents.

Mr. G.N. Qureshi advocate for respondents No.1 to 3.

Mr. Irshad Ahmed Kehar, D.A.G    

Mr. Shafi Muhammad Memon, learned A.A.G.

-.-.-.-.-.-.-.-.

The case of the petitioner is that she is owner of Totoya Land Cruiser Jeep bearing registration No.BC-4811 Karachi, Chasis No. KZJ78-0024894, Engine No. 1 KZ-0411277, Model-1994, which was unlawfully detained in spite of the fact that she had valid import documents. The said vehicle was intercepted on 30.03.2010 and detention notice was served on the petitioner by the Senior Intelligence Officer of the office of Director General of Intelligence and Investigation-FBR Regional Office, Karachi wherein it was stated that said vehicle is suspected to be smuggled. After service of the detention notice dated 13.03.2010, the petitioner filed the present petition on 15.04.2010. In reply to the parawise comments the respondents have stated that laboratory test have revealed that chassis number has been tampered with after erasing the digits which could not be deciphered due to deep grinding.  This resulted in issuance of a show cause notice on 17.05.2010. Thereafter Order-in-Original was passed on 27.09.2010.

Learned counsel for petitioner argued that detention of the vehicle was unlawful and contrary to the provisions of Sections 17 and 26 of the Customs Act. In support of his contentions, he relied upon the judgment reported in PLD 92 Supreme Court 485.

In a similar case i.e. C.P No.D-1104 of 2010 this Court on 28.03.2012 decided the jurisdiction of the Collector of Customs Intelligence which is reproduced as under:-

“On the other hand, Mr. Akhtar Ali Mehmood learned counsel for respondent No.1, contended that action was not taken by the Custom officials but was taken by Directorate General of Intelligence & Investigation (Customs & Excise) that was firstly established by the Ministry of Finance, Revenue Division, Government of Pakistan vide letter dated  August 1957, whereby the Directorate was given jurisdiction to cover the entire country. The jurisdiction of the Directorate cover each of the four provinces and its officers have been given specific area to operate in each province in order to detect cases of smuggling. Mr. Akhtar Ali Mehmood referred to various S.R.Os. Under such S.R.Os the officials of the Directorate General of Intelligence & Investigation (Customs & Excise) have been given powers under various sections of Customs Act, including power of detention under section 168(i) of the Customs Act, of any imported items which is suspected to have been smuggled without payment of duties. We have noted that the jurisdiction of Directorate General of Intelligence & Investigation (Customs & Excise) was extended to the whole of Pakistan with a clear idea to detect smuggling and, therefore, even if smuggled goods have left the bounds of the port of Karachi, it can be subsequently detained by the authorized officials of Directorate General of Intelligence & Investigation (Customs & Excise) if there are reasons to believe that such goods have not been duly imported. Such powers are exercisable by the functionaries of the Directorate also in other provinces which have no port. Thus power of seizure and detention has been given in such areas also which are beyond the port limits of Karachi. In the present case, the registration of the vehicles in question was found to be defective and it was also not confirmed by the Registration Authority. The Chassis number was found to be tampered and there was no specific reason given by the petitioner to show that why he was not in possession of the relevant import documents / verifiable registration book. Under the circumstances, we find no justification to interfere with the decision to issue detention notice, hence this petition is dismissed.”

We are of the view that after issuance of detention notice on 30.03.2010 and decision given on merits vide Order-in-Original dated 27.09.2010, the petitioner ought to have challenged the same before the appellate authority, but the petitioner preferred not to contest the proceedings before the forum provided under the Customs Law and sought relief in the present Constitutional Jurisdiction. In presence of forum for seeking redressal of grievance that is created under special law, entertaining the controversy in constitutional jurisdiction of this Court would amount to showing mistrust on such forum, though the forum was created to provide efficacious remedy. It would not be proper for this Court to assume the jurisdiction of the special legal forum and proceed in its constitutional jurisdiction. The Order-in-Original dated 27.09.2010 was not challenged before Appellate authority. However keeping in view that petitioner has been contesting the matter before this Court and the Order-in-Original was passed during pendency of this petition, we while dismissing this petition on the ground that petitioner should avail remedy before the appropriate forum, we at the same time condone the delay of the period consumed between the passage of the Order-in-Original and this decision, so that petitioner may approach the appellate authority to challenge the Order-in-Original if he so chooses. Petitioner shall be free to raise all questions of law before the appellate authority that may arise from the Order-in-Original. The condonation of delay is only on the condition that petitioner shall seek remedy before Appellate Authority within a period of two weeks i.e. from today upto 30.04.2012.

 

                                      JUDGE

                   JUDGE

Abdul Salam/P.A