ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. D-1167 of 2010

Date Order with signature of Judges

1.For orders on Nazir report dt. 29.3.2014 & 25.2.2014

2.For hearing of CMA No.7148/10 (151)

3.For hearing of CMA No.6727/10 (199)

4.For hearing of CMA No.6728/10 (Stay)

22.04.2014

Mr. Raza Muhammad Raza, advocate for the petitioner.

Mr. Akhtar Ali Mehmood, advocate for the respondent Nos.2 & 3.

Mr. S. Mohsin Imam, DAG

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1. Nazir’s reports are taken on record.

2-4. Through instant petition, the petitioner impugned the order dated 26.3.2010, whereby the vehicle of the petitioner i.e. Toyota Surf bearing No.WAA-110, Model 1997, 2982 CC, Engine No.AZ452968, Chassis No.KZNI185-9011095 was detained by respondent No.3, however, the petition was disposed of vide order dated 21^st May, 2010 in the following terms.

“We would, therefore, dispose off this petition with a direction to the respondents to immediately return the subject vehicle being Toyota Surf bearing No.WAA-110, Model 1997, 2982 CC, Engine No.AZ452968, Chassis No.KZN185-9011095 to the petitioner.”

2. After disposal of the instant petition in the aforesaid terms, the petitioner filed application for Contempt of Court against the alleged contemnors, who according to petitioner did not comply with the orders of this Court as the subject vehicle was not handed over to the petitioner. Thereafter, the respondents also filed application seeking recalling of the order dated 21.5.2010 on the grounds that since the counsel for the respondents was not in attendance at the time of disposal of instant petition, whereas, the petition has been disposed of without deciding the controversy involved in the instant petition and since then all the listed applications being taken up for hearing. It is further noted that during pendency of all the listed applications, respondents were directed to deposit the subject vehicle before the Nazir of this Court, whereafter, custody of the subject vehicle was directed to be handed over to the petitioner vide order dated 22.5.2013, however, only for the purpose of use, whereas, the petitioner was directed not to dispose of the subject vehicle or to create any third party interest till further order. It was further directed that once every two weeks, the petitioner shall bring the subject vehicle for inspection by an officer of the Nazir of this Court, who shall make an endorsement that the subject vehicle is in possession of the petitioner and such arrangement was made without prejudice to the case of the parties. Nazir has furnished his reports in this regard, which reflects that the petitioner is abiding such arrangement made on the direction.

3. Mr. Akhtar Ali Mehmood, learned counsel for the respondents has drawn the attention of this Court to the order dated 29^th July 2010 and submits that in the instant case, order-in-original has already been passed in respect of the subject vehicle, which has not been assailed by the petitioner before any forum, therefore, the same has attained finality, hence, instant petition otherwise has become infructuous. It has been prayed that the petitioner may be directed to handover the custody of the subject vehicle to the respondent department. This contention of the learned counsel for the respondents has been vehemently controverted by the learned counsel for the petitioner who submits that the respondents have never supplied the copy of order-in-original to the petitioner, inspite of an undertaking given on 29.7.2010. It is further contended that no opportunity of being heard was given to the petitioner while passing the order-in-original as referred to hereinabove, which according to learned counsel, is violation of principles of natural justice, whereas, it further violates the order of this Court passed in Custom Reference Application No.263 of 2010 on 15.2.2013.

4. After hearing both the learned counsel and the learned DAG, and from perusal of the record, without dilating on the merits of the instant petition, since the order-in-original has already been passed in the instant case during pendency of this petition, it would be appropriate that the petitioner may seek the remedy against such order before the forums provided under the Customs Act, 1969. However, looking at the peculiar facts and circumstances of this case, and the claim of the petitioner that certified true copy of order-in-original has not been supplied by the respondents, we would direct the respondents to supply the certified true copy of order-in-original to the petitioner within one week from the date of receipt of this order, whereafter, the petitioner shall be at liberty to file an appeal against such order before the forum provided under the Customs Act, 1969, which shall be heard and disposed of on merits, strictly in accordance with law, after providing an opportunity of being heard to the petitioner, whereas, the time consumed during pendency of this petition may not be taken into consideration for the purposes of limitation and the appeal may be treated as filed within time. During pendency of the appeal which may be filed by the petitioner, if any, the arrangement which has been made by this Court vide order dated 22.05.2010 regarding custody of the subject vehicle shall remain intact till further orders by the appellate authority upto Customs Appellate Tribunal, Inland Revenue in the instant case.

All the listed applications as well as reports submitted by the Nazir stand disposed of in the above terms.

J U D G E