BISVIL SPINNER (PVT.) LTD. Versus PAKISTAN

ORDER

1. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑Leave to appeal has been sought in an excise duty matter against the dismissal by the High Court of petitioner's Constitutional (Writ) Petition.

2. The Deputy Collector Customs held the petitioner liable to the duty amounting to over 2 lacs of rupees on fording of the evasion thereof. The petitioner's appeal was allowed on somewhat technical ground and the case was remanded ‑ for de novo consideration. The petitioner challenged the remand order before respondent No.l in revision which was dismissed and the original order of the Deputy Collector Customs was restored. The High Court have declined to interfere in its Constitutional (Writ) jurisdiction on a finding, inter alia, that the revisional order was just, fair and in accordance with law, the petitioner has now sought leave to appeal.

3. Learned counsel raised two main grounds ‑ one, that the respondent had no jurisdiction as revisional authority to restore the original order ‑particularly, when in the revision petition the reversal of the appellate order was sought alongwith the prayer for setting aside of the original order. When told that the respondent could also act suo motu as the relevant provision of law permitted the same, learned counsel while being unable to meet this point contended that this could be done only after a fresh show‑cause notice to the petitioner ‑ bringing it to his notice that the original order was intended to be restored.

4. Learned counsel also contended that the revisional authority could not have restored the original order because it was based on no evidence at all. When pointed out that amongst others the recovery of certain written material in the form of chits etc. was before the authority concerned learned counsel stated that an argument raised in this behalf that the said material was obtained illegally, has also not been properly dealt with.

5. The facts relevant for this stage and also for examination of the points raised by the learned counsel, as stated in the opening part of the order of the respondent, are as under:‑‑

6. "The facts briefly are that M/s. Bisvil Spinners Ltd., Muridke were alleged to have cleared excisable woollen yarn without payment of duty. They were proceeded against and the adjudicating officer found them guilty of contravention of the excise laws and rules. In their appeal against decision of the Adjudicating Officer the Advocate for M/s. Bisvil Spinners argued mainly on the following lines:‑‑.

(1) Show‑cause notice did not indicate the details of the basis of allegations and the quantum of punishment likely to be awarded and as such it was defective and illegal;

(2) documents on the basis of which the appellant was held guilty had not been obtained lawfully and that the evidence obtained unlawfully could not be used lawfully against the accused and that it had been used illegally, and that

(3) the adjudicating officer had decided the case on mere conjectures, surmises and improper evidence and as such the case against M/s. Bisvil should be dropped.

2. Collector (Appeal) examined the grounds of appeal and decided to remand the case to the adjudicating officer for de novo consideration with orders inter alia to take into account for examination the points raised by the Advocate at appeal stage. The petitioner, however, objected to the decision of Collector (Appeal) and filed this envision petition, through their Advocate.

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9. I have come across few cases where the Advocate objected to a re examination of the facts and legal aspects of a case and demanded the revisional authority to examine facts and decide the case at that stage both on facts and law. Although, I was tempted to go along the Collector (Appeal) and opt for de novo consideration by the Deputy Collector, but I thought that ends of justice would not be met if the case which had been delayed already for over eight years to reach this stage, was further delayed and in the language of the Advocate `amount to involving the petitioner in unnecessary litigation and harassment'. Hence this decision."

10. It is apparent that the points, urged before respondent No.l, which were noted in detail are indicative of the fact that the petitioner's side not only wanted the decision of the case by the respondent on merits also; of course, together with the resolution of the legal points. When the entire case was sought by the petitioner to be re‑examined by the revisional authority, it will be very difficult during this exercise and discussion of the arguments advanced to pinpoint a stage where it could be said that the petitioner wanted the Presiding Officer to stop examining the merits any further. This is demonstrated from the fact that the following argument was also raised before the respondent:

11. "The impugned orders (both original and in appeal) were based on preconceived notions, conjectures and surmises and as such liable to be set aside at the revision stage."

12. This point was also carefully examined by the respondent and amongst other grounds was repelled for the reason that "the impugned order in original was actually based on a detailed scrutiny of the production and clearance record of the Mill. The special audit was occasioned by the availability of the informal records (slips etc.) differing as they did from the prescribed record". It was also observed that the respondent was "quite satisfied that in processing of this quasi‑judicial case, the Adjudicating Officer and his set‑up with all their institutional weakness did a commendable job and afforded all reasonable opportunities to the appellant to vindicate their point of view". This resume would further show that the point of no evidence was raised but was repelled with cogent reasons.

13. After having proceeded before the revisional authority in the manner above described and after having sought the setting aside of the original order also to expect further that the revisional authority had only the authority to set aside and not to affirm and uphold the said order, is the very negation of the revisional power which was invoked by the petitioner. After having rejected the argument of the petitioner with regard to the original order and after having affirmed it as lawful and correct, it would have resulted into contradictions if the revisional authority despite having suo motu jurisdiction would have declined to restore it. It would have amounted to injustice to the department and the exchequer and injustice to the case as well and could not have been sustained in the High Court or for that matter in the Supreme Court. Thus the main argument of the learned counsel for the petitioner regarding the scope of the jurisdiction of the respondent is without any force.

14. For the same reasons a separate show‑cause notice was not at all necessary before the respondent dismissed the petitioner's revision by affirming and restoring the original order which was also impugned in the revision directly as well as indirectly.

15. On merits also, after hearing the learned counsel we have found that the respondent's order does not in any way suffer from any legal or other infirmity. It is indeed, as held .by the High Court, also just and fair. The High Court in such like case, could not have by issuance of a writ in its discretionary Constitutional jurisdiction perpetuate or restore what was patently wrong and/or unjust.

16. We also do not accept as valid the argument that the evidence, in the form of documents recovered (or obtained) from the petitioner, could not be examined or relied upon because allegedly certain formalities were not observed in taking them into possession.

17. If otherwise relevant and reliable there was nothing wrong in using it', against the petitioner. It needs to be observed that the learned counsel while urging the technical objection about the documents did not raise the additional argument that the documents were either fake or forgeries or were not obtained from the petitioner.

18. There is another feature of this case and it can be termed as Islamic feature. The two main contentions raised by the learned counsel are un entertainable in an Islamic dispensation. There is a piece of Hadith which is relevant and its application would be apt in circumstances and cases like the present one. Its Urdu rendering reads as follows:‑

19. If the two main arguments advanced by the learned counsel are analysed and decided on the touchstone of the afore‑reproduced jurisprudential command, none of them would be found to have any force. What the learned counsel tried to show when urging the first argument was that even if the petitioner was in the wrong and had made a wrongful gain through some legal incident, he is entitled to retain because of a failure on the part of a functionary to perform a procedural act. Obviously it is not permissible if looked at in the light of the above‑quoted legal position.

20. Similarly from this a corollary would follow; namely, that if a piece of evidence is otherwise relevant and pertinent for the decision of an issue, it is untenable argument that : notwithstanding the fact that it is genuine and otherwise reliable it should not be made use of because in the process employed for the collection of the material an irregularity or for that matter an illegality was committed.

21. We are conscious that in some jurisdictions such a liberal attitude in favour of a wrong committed or otherwise a wrongful act or a wrong doing is permissible ‑ in Islamic dispensation it is impermissible. In Islamic law, philosophy and jurisprudence, no one can be permitted to reap the benefit of wrongful gain. The fair deal principle; namely, in order to seek justice one must be fair and should do justice, is highly pronounced in Islam. See also:

(i) the discussion on the question of opportunity of hearing with reference to the Masjid‑i‑Zarar case cited in Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad v. The General Public (P L D 1988 S C 645); and

(ii) the decision against Abu Sufian on his wife Hinda's complaint about her husband's miserly attitude. It was rendered even in his absence, on the basis (principle) that his position in the matter was well known to every one concerned including the Judge and there was no possibility of denial. She as wife was allowed the relief of legitimate spending even without his permission (from his ownership) for her and her children's needs. (Sunin .Nisaii same reference as above).

22. Looked at from whatever angle including the Islamic legal dispensation, this petition has no force and is, accordingly, dismissed.

23. M.B.A./B‑190/S Petition dismissed