Messrs BABA AGENCIES through Proprietor vs SECRETARY REVENUE DIVISION
This constitutional petition was filed by a clearing agent against the order of the Collector maintaining an order-in-original that imposed a penalty and reinstated a suspended licence pending the finalization of a criminal case before the Special Judge (Customs, Taxation and Anti-Smuggling), Karachi. The core legal question involved whether constitutional interference was warranted when criminal proceedings concerning the same subject matter were sub judice and disputed factual allegations required evidence. The Sindh High Court held that the petition was not maintainable as the allegations required evidence, any observations by the constitutional court would prejudice the pending criminal trial, and the impugned order had in effect not suspended or cancelled the petitioner's licence. The court laid down the principle that constitutional petitions involving disputed questions of fact and touching upon matters sub judice before a criminal court will not be entertained.
- Will a constitutional petition be entertained when the underlying matter involves disputed questions of fact requiring evidence?
- Can a constitutional court make observations on a matter that is sub judice before a criminal court?
- Is a constitutional petition maintainable against a customs order when the impugned action does not result in the suspension or cancellation of the petitioner's licence?
ORDER
1. ' MRS. YASMIN ABBASEY, J.---Being aggrieved by the order of Collector maintaining the order-in- original, dated 6-9-2006, whereby the petitioner being the clearing agent was penalized by imposing a penalty of Rs,30,000 to be deposited within 15 days and the licence suspended on 12-6- 2006 was reinstated till finalization of case under Crime No, S1/Miscellaneous/204/06-Exp. EW by the Court of Special Judge (Customs, Taxation and Anti-Smuggling), Karachi, this petition has been filed.
2. ' It is argued by learned counsel for the petitioner that in view of admitted fact that the container was stuffed by the exporter and this petitioner being clearing agent has just presented the documents on the basis of information provided by the exporter for clearance of port, hence no charge of misdeclaration can be alleged against him. Even if the contentions made by learned counsel for petitioner are taken as correct the fact that, in view of the observation made at the trial stage criminal proceedings have been initiated against the petitioner and the A matter is sub judice before Special Judge (Customs, Taxation and Anti- Smuggling), Karachi as such under these circumstances any observation made in this petition either way will affect on the proceedings and final disposal of criminal case pending before the Special Judge (Customs, Taxation and Anti-Smuggling), Karachi.
3. Whereas learned counsel for the respondents has raised objection as to the maintainability of petition that in against to the judgment of Customs authorities, Federation of Pakistan is a necessary party. To support his arguments he has referred the case of Rahat Hussain v. Collector of Customs (Prey.) Custom House, Karachi and 2 others (2003 CLC 1860), wherein it is observed that:- - "Apart from the above defect, this constitutional petition is also defective on another ground. The petitioner has challenged the order of Wafaqi Mohtasib which required to join Federation of Pakistan as one of the respondents in the petition. Failure of the respondent to join Federation of Pakistan as a respondent had rendered the petition as defective liable to be dismissed."
4. In view of foregoing reasons, we are of he view that besides the maintainability of petition the allegations levelled against the petitioner also require evidence and any observation in this matter will affect the pendency of criminal proceedings. Even otherwise by the impugned judgment neither licence of the petitioner has been suspended nor has been cancelled. It is operative with no effect to petitioner's business. With these observations petition stands dismissed in limine along with the listed application.
5. ' These are the reasons for the short order announced on 27-2-2008.
Cited by 2 cases
- Messrs Faisal Trading Co. vs The Collector of Customs (Appeals) and another 2023 PTD (Trib.) 876
- Gul Ahmed Textile Mills Ltd vs The Collector of Customs, (Appraisement) & 2 others 2019 PLD Sindh 144, 2018 SHC 829