COLLECTOR CUSTOMS, SALES TAX AND CENTRAL EXCISE and 2 others vs Professor MUHAMMAD KHAN and 6 others

MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Pakistan has been directed against the order, dated 18-3-2004 passed by a Division Bench of High Court of Sindh, Hyderabad Bench, in a constitution petition whereby the action of the official of Custom Department of detaining a vehicle (car bearing Chassis No,8890-3037068 Model 1998) being owned and driven by Muhammad Khan, respondent No,1 herein, while he was travelling with his family suspecting it to be smuggled, was declared without lawful authority and in consequence thereto, the petitioners were directed for payment of compensation to the respondent at the rate of Rs,1,000 per day for the period of unauthorised detention. The above order has been challenged by the petitioners on the ground that in absence of any provision in the Customs Act, 1969, regarding payment of such compensation, the High Court was not empowered to give such a direction.

2. This is an admitted fact that vehicle was registered in the name of respondent and he also showed the documents of registration to the custom officials who having detained the car, insisted the production of import documents there and then for release of the car.

3. Learned counsel for the petitioners having conceded the lawful import of the car and its possession with the respondent, has contended that the custom officials in case of suspicion regarding 'the lawful import of the vehicle could competently detain it in exercise of their powers under Customs Act, 1969 for the purpose of necessary verification to ascertain the origin of the vehicle and having the protection of law for exercise of such power, would not be liable to any penal action.

' The law certainly provides protection to a public servant for doing a lawful act in discharge of his duty but no such immunity can be claimed by a person for committing an illegal act in his official capacity as a public servant. The learned counsel for the petitioners has not been able to satisfy us that the Custom Authorities have unbridled powers under Customs Act, 1969, to detain the goods of foreign origin at B anytime by raising the presumption that same were not brought into Pakistan in a lawful manner. The Custom Authorities and such other public functionaries are not above the law to command absolute authority in exercise of their power and in absence of any proof that goods in possession of a person were brought into the Pakistan in violation of any law, have no authority to detain such goods merely on the basis of suspicion.

' We having heard the leaned counsel for the petitioner have not been able to find out any defect in the judgment of High Court and instead are of the view that the detention of the car was an act of highhandedness which having been committed through misuse of the official authority, may constitute misconduct in terms of Civil Servants (E&D) Rules, 1973 read with Removal from Service (Special Powers) Ordinance, 2000. The exercise of official authority in a manner in which a person is made victim of misuse of the process of law is volatile of the constitutional guarantees in respect of the rights of the citizens and a person responsible for violation of such rights must face the legal consequence. In the present case, in consequence to an illegal act of the petitioners of detaining the car, the respondent was not only humiliated and caused harassment but was also dragged in unnecessary litigation for no fault on his part, therefore, we without taking any exception to the order of the High Court, dismiss this petition with the observation that the transaction may also constitute misconduct, therefore, the concerned authorities were under legal obligation to initiate appropriate proceedings against the officials involved in the matter. The copy of this order shall be sent to Chairman C.B.R. Islamabad for necessary action. This petition is, accordingly, dismissed.

Leave is refused.