FECTO BELARUS TRACTOR LTD. Versus GOVERNMENT OF PAKISTAN through Finance Economic Affairs

IFTIKHAR MUHAMMAD CHUDHRY, J .---Petitioner seeks indulgence of the Court for initiating suitable action for contempt of Court in accordance with law against the persons or any other person is mentioned in the list appended with the application or against anyone else, who is involved for violating, the judgment, dated 19th February, 2001 passed in Civil Review Petition No. 80 of 1999 by this Court.

2. In view of the importance of the matter, we consider it appropriate to look into the background of the case. It is significant to note that as far back as 1994 the Government of Pakistan launched a scheme for providing tractors to the agriculturists/farmers under the Awami Tractor Scheme, through Agricultural Development Bank of Pakistan, at subsidized rates. To achieve the object, the payment of Customs Duty and Sales Tax was exempted in terms of S.R.O.No.921(I)/1994, dated 22nd September, 1994 and S.R.O.No.1189(I)/1994, dated 11th December, 1994. Accordingly the scheme was implemented and on the accomplishment thereof, the S.R.Os referred to hereinbefore were substituted with S.R.O. No.388(I)/1996, and S.R.O. 414(I)/1996, dated 13th June, 1996 respectively in pursuance whereof 10% Customs Duty and 18% Sales Tax on the import of Tractors were imposed. Subsequent thereto the Government of Pakistan launched Awami Tractor Scheme No. II for importing 10,000 Tractors. As the petitioner succeeded in fulfilling the specified conditions for the import of Tractors including the one to sell a Tractor at a price of Rs.2,30,000, therefore, the letter of authorization was issued to it on 26th June, 1996 by the Ministry of Food, Agriculture and Livestock Government of Pakistan (hereinafter referred to as `MINFAL'). The contents of letter expressly provided that all concession provided under the first phase of scheme would be available to the petitioner as well and directions were issued to it to open letter of credit before 30th June, 1996. This letter was followed by another letter, dated 27th June, 1997, issued by the "MINFAL", by way of a corrigendum, stating therein that the authorization letter issued in favour of the petitioner for the second phase of Awami Tractor Scheme was subject- to amendment to the extent that the fixed price of the Tractor would be enhanced in the event of any fluctuation in the Exchange rate of US Dollars over Rs.35.72. Furthermore, it was clarified that price of Rs.2,30,000 as agreed upon by the petitioner, was on the assumption that no Sales Tax had been imposed and that concession provided under S.R.O. No.921(I)/1994, dated 22nd September, 1994 would continue in favour of petitioner for the import of the Tractors. It was the case of the petitioner that despite clear directions noted hereinabove Ministry of Finance imposed upon it Sales Tax at the rate of 18%. Customs Duty at the rate of 10% and the Service Charges at 2% respectively, therefore, it invoked the jurisdiction of learned Lahore High Court for the redressal of its grievance, by filing Constitution Petition No. 21972 of 1996, but could not get relief as the petition was dismissed having become infructuous in view of the statement made by learned Deputy Attorney-General, representing the Government of Pakistan that the matter in issue was examined by the Economic Co-ordination Committee (hereinafter referred to as "ECC") and the attention of the Court was drawn towards the approval granted by the competent authority whereby certain adjustment had taken place for the Awami Tractor Scheme. Leaving the petitioner at liberty to file fresh petition to question the adjustment made by the ECC, the High Court disposed of the petition vide order, dated 24th February, 1997.

3. Petitioner preferred ICA, which was allowed on 4th August, 1997 declaring that petitioner was entitled to avail all concessions like exemption from, the payment of Customs Duty and Sales Tax, in the same manner and to the same extent, which were made available under the original Awami Tractor Scheme qua the import of 10,000 Tractor by it under the authorization letter, dated 26th June, 1996 and respondents Nos. 1 and 2 were restrained from withdrawing or amending the same to the disadvantage of the petitioner.

4. Against the order of ICA Bench, the respondents approached this Court by filing petition for leave to Appeal being No. 1084-L of 1997 wherein on 9th October, 1997, leave was granted and finally the appeal was accepted on 1st September, 1999. Contents of the concluding para. read as under thus:--

"In the result, there appears to be force in the contentions raised by the learned Attorney-General. Resultantly, the appeal is allowed and the judgment of the High Court is set aside. There will, however, be no order as to costs in view of the questions raised by the parties."

5. Petitioner preferred a Civil Review Petition being No. 80 of 1999 wherein following prayer was made:--

"It is, therefore, respectfully prayed that the order and judgment, dated 1-9-1999 may graciously be reviewed and the appeal of the Respondents may kindly be dismissed."

The above-noted review petition was allowed vide judgment, dated 19th February, 2001. Concluding para. therefrom read thus:--

"(37). To sum up, it is crystal clear that withdrawal of SRO exempting the payment of customs duties and the sales tax would not be applicable to the second phase of the scheme for the import of tractors because the Government itself after the withdrawal of notification had resiled from it to the extent of the import to be undertaken by the petitioner. Secondly, relying upon. Al-Samrez case referred to hereinabove, the sales tax like the customs duty could not be levied upon the import by the petitioner because the petitioner is protected on the doctrine of estoppel as well as under the Economic Reforms Act, 1992.

For the foregoing reasons, we would review the judgment with the result that the judgment of the Lahore High Court, dated 4th August, 1997 is restored, earlier judgment of this Court, dated 1st of September, 1999 rendered in C.A. No. 1176 of 1997 recalled and appeal dismissed with costs."

6. It appears that during pendency of the petition for leave to appeal, a request was made by the official respondent that the operation of the judgment 4th August, 1997 passed by the learned High Court in I.-C.A. No. 84 of 1997 may be suspended. Request so made was allowed by way of granting interim relief in chamber on 1st September, 1997. However, while granting leave to appeal on 9th October, 1997 the condition of interim order was modified, thereby directing the petitioner to furnish Bank Guarantee or Bank Guarantees of a Scheduled Bank to the satisfaction of the Collector Customs concerned within a period of one month or earlier. Accordingly, on acceptance of their Appeal No. 1176 of 1997, the Bank Guarantees were got encashed by them.

7. However, after the decision of Civil Review Petition No.80 of 1999 vide judgment, dated 19th February, 2001, petitioner approached the Central Board of Revenue (hereinafter referred to as `CBR') for refund of the amount, paid towards the Customs Duty as well as Sales Tax and Service Charges. As needful was not done, therefore, petitioner filed instant petition for initiating action for contempt of Court against the respondents.

8. From the above facts following question emanates for consideration:---

Whether respondents have committed contempt of Court by not refunding the Customs Duty, Sales Tax and the Service Chaff to the petitioner in view of the judgment, dated 19 th February, 2001 in C.R.P. No. 80 of 1999 ?

9. Learned counsel contended that as a matter of right petitioner was entitled for refund of Customs Duty, Sales Tax and Service Charges amounting to Rs.493,467,838 (four hundred ninety three million, four hundred sixty seven thousand and eight hundred and thirty eight) which were illegally recovered from it by encashing its unconditional bank guarantees furnished by it in pursuance of order of this Court, dated 9th October, 1997 but instead of doing needful the Customs Department vide letter, dated 11th May, 2001, asked the petitioner to submit a certificate from a Chartered Accountant, confirming whether the incidence of Sales Tax has not been passed on to the consumers and reiterated this demand knowing well that the bank guarantee had been furnished unconditionally. However, petitioner, without prejudice to its case in good faith obtained a certificate from their Chartered Accountant and submitted the same clarifying that during the period from 1st July, 1996 to 30th June, 2000, the Sales Tax has not been charged on the invoices raised by the Company but surprisingly instead of fulfilling the requirement as aforesaid, the C.B.R., while defying the order of this Court, dated 19th February, 2001, declined to accede to the request of the petitioner on the plea that it had set up a committee to look into the issue i.e. whether the burden of Sales Tax has been passed on or not by the petitioner vide letter, dated 9th April, 2002. According to him this device was adopted with a view to flout/violate/reverse the judgment of this Court. He emphasized that the C.B.R. had no legal authority to raise such objection for the first time. Though this plea was available to them at the time of hearing of CRP No.80 of 1999, thus the respondents were estopped from raising this plea.

10. He argued that petitioner furnished bank guarantee equal to the amount of Customs Duty, Sales Tax and Service Charges in pursuance of leave granting order, dated 9th October, 1997 in Civil Petition No. 1084-L of 1997, therefore, as soon as the judgment passed in Civil Appeal No.1176 of 1997, dated 1st September, 1999 was recalled on 19th February, 2001, the petitioner as a matter of right was entitled to the refund of the amount but C.B.R. on one pretext or the other deferred the payment in clear violation of the judgment passed in Civil Review Petition No.80 of 1999, dated 19th February, 2001. According to him the C.B.R. could not be allowed on any ground, whatsoever, to non implement the judgment, including the questions which are now being raised for the first time.

11. On the other hand learned Attorney General for Pakistan assisted by Mr. Muhammad Afzal Siddiqui, Advocate Supreme Court contended that at the time of hearing of the Review Petition before this Court and even in the earlier litigation there was no question before the Court for determination "whether incidence of Sales Tax has passed on to the consumer of Tractor or not". He emphasized that the burden of Sales Tax has to be shared ultimately by the purchaser, therefore, to ascertain the correct position a committee was constituted by the C.B.R., who had no intention to flout/violate/severe the judgment of the Court, although judgment dated 19th February, 2001 contained no directions for the refund of Customs Duty, Sales Tax and Service Charges. Besides, in the meantime, respondents had received evidence that Tractors had been sold by the petitioner at higher rate ranging between Rs.399,000 to 4,35,000, inclusive of Sales Tax, etc. qua the price fixed by the `MINFAL" i.e. Rs.2,30,000, therefore, it had become all the more necessary to probe into the matter.

12. Learned Attorney-General also contended that the principle of unjust enrichment is fully invoked in the judicial system of this country notwithstanding the fact whether 'adjustment of the tax has got the statutory backing or not because if it is established that incidence of Customs Duty and Sales Tax have been passed on to the consumers by the importer, then latter is not entitled to the refund of the same.

13. It may be noted that instant proceedings have been instituted for initiating action for contempt of Court against the C.B.R. and its officers. A careful perusal of the judgment, dated 19th February, 2001, reveals that on accepting the review petition, the judgment in Civil Appeal No. 1176 of 1997, dated 1st September, 1999 was recalled as a result whereof the judgment, dated 4th August, 1997 of Lahore High Court stood restored. These two judgments do not contain any direction that petitioner would be entitled to refund of Customs Duty and Sales Tax etc. automatically. For convenience sake concluding para from the judgment of High Court, dated 4th August, 1997 is reproduced herein-below:--

"(18). For the foregoing reasons, we accept this appeal, set aside order, dated 24-2-1997 passed by the learned Single Judge and hereby declare that the appellant is entitled to avail all these concessions as regards exemption from the payment of the customs duty, sales tax, service charges and other taxes in the same manner and to the same extent which were made available under the original Awami Tractor Scheme in relation to import of 10,000 Tractors by it under the authorization, dated 26-6-1996 and respondents 1 and 2 are hereby restrained from withdrawing or amending' the same to the disadvantage of the appellant. The parties are however left to bear their own costs. "

14. Learned counsel for petitioner in order to substantiate his plea relied upon the following judgments:--

1. Hadkinson v. Hadkinson (1952) 2 All E.R. 566:

In this case it is observed that it was the plain and unqualified obligation of every person against, or in respect of, whom an order was made by a Court of competent jurisdiction to obey it unless and until it was discharged.

2. The State v. Muhsin Tirmizey (PLD 1964 (W.P.) Lahore 434):

In this case Court observed that the remarks made by an authority in its administrative function amounts to contempt of gross kind. In this case respondent Muhsin Tirmizey, the then District and Sessions Judge, Dera Ghazi Khan wrote a letter to -the Chief Secretary to the Government of West Pakistan Lahore containing objectionable remarks against the High Court which were not only read by the Chief Secretary but it was also read by the others who dealt with it in the course of their duties, as such respondent was found guilty for the contempt of Court.

3. Dr. A.N.M. Mahmood v. Dr. M.O. Ghani VC. (PLD 1967 Dacca 67)

In this case, the High Court of East Pakistan (Dacca) has held that the object of the discipline enforced by Court in case of `contempt' is not to vindicate the dignity of the Judge in person, but to prevent undue interference with the administration of justice or the doing of an act the tendency of which is to deprive the Court of an unfettered course with a view to dispense even handed and impartial justice in accordance with law. It is a part of our legal system that the Court should call upon the delinquents, if so found, to answer for the impediment which they have caused to the steady course of judicial administration .... "

4. Ekka Tonga Mazdoor Union v. The Aligarh Municipal Board (AIR 1967 Allahabad 93)

In this case it is held that the orders of the Courts are to be implemented and acted upon with promptitude. If their implementation is unduly delayed, it would amount to showing scant respect to the Court concerned and its judicial process, which would obviously be a serious contempt of that Court, even though the person sought to be injuncted or restrained might have had no intention to flout the. order of the Court, for in many cases the very object of obtaining the order of stay or restraint would be rendered nugatory and the thing sought to be enforced or retrained by the Court might be accomplished or completed such as in the case of stay demolition etc. Moreover, considerable delay in carrying out an order of a Court after notice, without adequate explanation for laches, would by itself constitute serious contempt of Court inasmuch as it tends to undermine the prestige and authority of a Court of law and the efficacy of its judicial process. A person who has obtained an order in his favour from a Court is entitled to instant relief and its delayed implementation would discredit the administration of justice.

5. Syed Aftab Ejaz v. The State (PLD 1978 Lahore 361)

In this case the learned High Court held that in- a case of contempt of Court the plea of intention, however, good it may be, cannot provide defence for flouting the order of the .Court, because the order of the Court is to be strictly complied with and its compliance is a matter of strict liability.

6. Sri Kirshna Singh v. Mathura Ahir (1981) 4 SCC 421

In this case a decree was passed against the petitioner for delivering the possession of the property to the plaintiff which was maintained ultimately by the Indian High Court, adjudging that the petitioner Sri Krishna Singh and others were trespasser and were directed to be evicted from the property in question but despite of it, possession was not delivered in utter disregard of Supreme Court's order and trying to delay or defeat the Court's decree for delivery of possession by adopting ingenious devices and subterfuges, therefore, proceedings were ordered to be taken against him for contempt of Court.

7. Issacs v. Robertson (1984) 3 All E.R. 140.

It is observed in this case that order made by the Court of unlimited jurisdiction in the course of contentions between orders that are `void' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders which are `viodable', in the sense that they may be enforced until set aside, since any order must be obeyed unless and until it is set aside and there are no orders which are void ipso facto without the need for proceedings to set them aside.

8. X. Ltd. and another v. Morgan Grampian (Publishers) Ltd. and others (1990) 1 All E.R. 616.

In this case it is held that right of audience can be declined to contemnor who not only refused to obey the order made by the Court but also rejected the authority of the Court to make an order binding on him.

9. Rana Muhammad Akram Khan v. The State (1993 PCr. LJ 2044)

In this case it is held that Disobedience or non-compliance of an order passed by the High Court whether intentionally or negligently and that too by a public functionary amounts to a contempt of Court.

10. Anil Sharma v. Virmani (1996 Cr. LJ 3137).

"Learned counsel contended that in this case the Court has held that it is settled proposition of law that the Contempt of Court cannot go behind the order. The opposite parties cannot be permitted to judge the merits themselves of an order quashed by High Court or they cannot be permitted to defy the Court's order on the ground that the order is not correct. If this is to be permitted, the entire judicial structure will fall down and every person will defy the orders on the ground that the order is not correct. "

Therefore, learned counsel's submission was that in instant case, the C.B.R. had absolutely no authority to appoint a Committee for the purpose of ascertaining as to whether the incidence of burden of Sales Tax has been passed on or not.

11. M.F.M. Y Industries Ltd. v. Collector of Customs (PLD 1996 Karachi 542)

Learned counsel contended that in this judgment it has been held that it is totally unprecedented that a department would await the advice from the administrative agency before the implementation of the order, as it had happened in the instant case that the concerned Collector instead of refunding the amount, approached the C.B.R. to avoid the effect of the judgment, therefore, strictly in accordance with the observation made in this reported judgment instant application has been filed for the proceedings of contempt of Court.

12. Abhijit Tea Company Ltd. v. Terai Tea Co. (P.) Ltd. (1996) 1 SCC 589

In this case the Court observed, that the arms of the Court are long enough to reach in justice wherever it is found, which should be dealt with appropriately.

13. Naveed Nawazish Malik v. Ghulam Rasool Bhatti (1997 SCMR 193)

It is held in this case that to disobey or disregard an order, direction or process of Court which a person is legally bound to obey, wilful breach of any undertaking given to a Court, any act intended to or which tends to bring the authority of the Court or the administration of law into disrespect or disrepute and to obstruct, interfere, interrupt or prejudice the process of law or the due course of any judicial proceeding fall within the category of contempt of Court.

14. Al-Jehad Trust v. Federation of Pakistan. (PLD 1997 SC 84)

In this case this Court. held that if all the Executive and Judicial authorities in Pakistan are unable to act in aid of the Supreme Court and judgment is not implemented, then such situation would be open to be construed as impasse or deadlock and would amount to very unhappy situation reflecting failure of Constitutional machinery ....

15. Government of Sindh v. Muhammad Hussain (2000 SCMR 1241)

In this case the concerned Officer instead of implementing the order thought that filing of review operates automatic stay but this Court observed that the officials concerned, prima facie, found guilty for contempt of Court for having failed to implement the order of this Court.

16. M. Adil Hayat Khan v. Government of Sindh (PLD 2002 Karachi 131)

It is held in this case that the act of justifying the disobedience of the Court's Order, which is very clear and can be understood by any person who has passed the High School Examination in Pakistan reflects his stubborn and unreasonable attitude.

17. Wyatt Tee Walker et al. v. City of Birmingham (US Supreme Court Reports (388 US 307)

"In this case it is held that as a general rule, an unconstitutional statute is-an absolute nullity and may not form the basis of any legal right or legal proceedings. Yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from a charge of contempt of Court; and he may not raise the question of its unconstitutionality in collateral proceedings on appeal from a judgment 'of conviction for contempt of the order or decree ."

15. Learned Attorney-General contended that in absence of a specific direction to refund Sales Tax to petitioner or for that matter Customs duty, no criminal liability of contempt of Court can be imposed upon the C.B.R. or its Officers. He referred to the following judgments:--

1. Hayat Ahmed Khan v. Bashir Sadiq (PLD 1952 Lahore 48).

In this case during pendency of a suit, an order was passed on 14th March, 1951 by a learned subordinate Judge, directing to the respondents to take the delivery of the machinery which had arrived at Karachi in presence of the petitioner or, his representative or at any rate, after giving sufficient opportunity to the petitioner or his representative to be present. If, in spite of it, the petitioner was not present or represented the delivery should be taken after informing the Court. Allegedly, respondent took delivery of the machinery on 25th April, 1951, without the order of the Court. Thus it was alleged that the order, dated 14th March, 1951 had been contravened. Ultimately, a petition was filed on original side before the Lahore High Court under section 3 of the Contempt of Court Act, praying that the respondents be proceeded against and adequate punishment according to law for having committed contempt of .Court of the subordinate Judge be passed. In view of these facts, the Court formulated a question "whether in these circumstances can it be said that there was a contravention of any direction made by the learned Judge, such as, could invite penalties of the nature applicable in contempt? The learned Judge answered the question as followed:--

"------------In my opinion answer must be in negative. Firstly if contravention of an order is to be visited with penalties of a criminal nature that order may be in clear and precise terms, setting out the obligations resting upon the person affected in clear and unmistakable language. The obligation must not rest upon any implication to be derived from any words used in. respect of other matters by the Court, it must be couched in express terms and must be brought directly to the notice of the party."

2. State of Pakistan v. Mehrajuddin (PLD 1959 SC (Pak.) 147)

In this judgment it has been held as follows:---

"It is true that the usual method of enforcing a judgment granting an order of mandamus is by commitment for contempt but such a mandamus must be of an absolute nature. An order directing the reinstatement of a person in a great public Department is not one which can be executed on the instant. It involves a great many considerations such as seniority, suitability, salary, and treatment of the period of absence etc., which are exclusively within the competence of the relevant executive authorities and can only be decided by those authorities after a good deal of examination and care, involving the exercise of discretion and judgment in regard to many complex matters. Therefore, an order directing the reinstatement of a person cannot be regarded as an absolute order of mandamus, non-compliance with which may peremptorily be visited by a proceeding in contempt. In the present cases, the orders of mandamus were themselves incompetent and therefore, for that reason as well, the High Court should have hesitated before issuing the notices in contempt which they did. ."

Learned Attorney-General in view of above observation stated that firstly neither this Court nor the High Court had issued absolute direction for the refund of the Customs Duty and Sales Tax, etc., therefore, the C.B.R. acted within its jurisdiction and was competent in law to ascertain as to whether incidence of Sales Tax had been passed on or not.

3. Qadeer Ahmad v. Punjab Labour Appellate Tribunal (PLD 1990 SC 787).

In this case petitioner got an order from the High Court at Bahawalpur in Writ Petition No.185/1979-BWP, in pursuance whereof the order of his dismissal from service was set aside, leaving upon the respondents to take fresh action against the petitioner in accordance with . law. However, he was not reinstated. Consequent upon the order of the High Court, respondent issued him an inquiry notice and suspended him for four days and after holding inquiry, he was dismissed from service. Before passing of the fresh order of dismissal, the petitioner moved an application before the Lahore High Court, Bahawalpur Bench; seeking implementation of the order, dated 25th February, 1980, reinstating him with back-benefits. It was further prayed that-the respondent be proceeded against under contempt of Court Act, for deliberately. avoiding the compliance of the order of this Court or any other appropriate order may be passed. The High Court dismissed the petition filed by him, as such appeal was filed before this Court. Arguments were heard and judgment was reserved. In the meantime, petitioner filed a Miscellaneous Application against the dismissal order, dated 27th March, 1990 with the Labour Appellate Court, who set aside the same vide order, dated 18th September, 1990 and directed his reinstatement into service with certain observation made therein. Against such order, two appeals were filed which were disposed of by Labour Appellate Tribunal on 30th January, 1984. Meanwhile, when the appeal came up for arguments with reference to the contempt of Court, this Court observed as under:--

" ..In order to make out a case for contempt, it was necessary to establish a specific direction and its breach by the party. In the case in hand no express order was passed in the judgment which was being utilized by the appellants for claiming payment of back-benefits. Therefore, in fact no breach had taken place for which the respondent could be held in contempt."

Learned Attorney-General heavily placed reliance on this judgment and argued that comparative study of the judgment of Lahore High Court, dated 4th August, 1997 as well as the judgment of this Court in Review Petition, clearly demonstrate that no directions were made for the refund of the Customs Duty. Sales Tax and Service Charges by any of these Courts.

4. Muhammad Sadiq Leghari Registrar High Court of Sindh (PLD 2002 SC 1033).

In this case a larger Bench of this Court dealt with the case of contempt of Court wherein it was alleged that the appellant being the Registrar of High Court of Sindh (as then he was) violated the order of this Court, dated 28th March, 2002 by submitting a report whether Constitution Petition No. D-1062 of 1994 (Feroze Akbar Khan v. Government of Pakistan) was heard by a Division Bench as reflected in the order, because ambiguity surfaced on having seen the cause list of High Court of Sindh, according to which the case noted therein was fixed before the learned Chief Justice of the High Court and the detailed order showed that the same had been signed by two Hon'ble Judges as it was heard by a Division Bench. When the case was taken up on 15th May, 2002, it was found that the report had not been submitted by the Registrar of the High Court of Sindh. Although in addition to the original communication, a reminder was also issued vide letter, dated 4th May, 2002 to submit the report compliance of the order. However, on 15th May, 2002 a Bench of this Court passed an order directing personal appearance of the Registrar, to appear in person and explain as to why proceedings of contempt of Court may not be initiated against him for non-compliance of the order. He submitted requisite report and also filed a reply to the notice and sought time to further probe into the matter, as desired by this Court. The learned Bench of this Court on having taking into consideration this reply, conclude that he had committed contempt of Court and had also interfered in the proceedings of administration of justice, for which no sincere regrets or unconditional apology had been tendered by him, therefore, on the basis of such findings, he was held guilty of contempt of Court and was accordingly punished and awarded sentence. With this background, I.-C.A. was filed and this Court formulated a question "whether the conduct of the appellant, if considered with the attending circumstances and the facts established on record, did constitute an act of contempt of Court, as envisaged under. Article 204 of the Constitution of Islamic Republic of Pakistan and the provisions of Contempt of Court Act, 1976?.And the answer was as follows:

"We may observe here at the very outset that a distinction has to be made between a case of contempt of Court based on defiance or violation of a judicial order in the nature of temporary injunction by a party whereby such party was restrained from acting in a particular manner but in spite of service of notice or having come to know of the passing of such order, acts in a manner to alter the position to his advantage so as to frustrate the temporary injunction and. an act of mere non-submission of a report called for by the Court by an Officer of the Court. In the former case, the Court would take strict view and mere act of defiance of the judicial order would be itself justify raising of presumption that the doer of the act was guilty of contempt of Court unless he. proves otherwise whereas in the latter case, it has to be determined on application of judicial mind as to whether the appellant deliberately did not submit the report on account of having personal. interest in any of the parties to cause damage to the other party in the case in which the report was called or had -any personal interest which; if proved or established would make the act of non-submission of the report mala fide. In the absence of any of these factors and element of contumacy, his conduct could not be held to have suffered from mala fides or contempt of Court. It has been held in the case of Behawal v. The State PLD 1962 SC 476 that mere non compliance of an order, in the absence of contumacy, would not amount to contempt of Court."

16. From the judgments relied upon by both the sides, inter-alia, following principles emanate:--

(1) Orders made by a Court of unlimited jurisdiction in the course of continuous litigation are either regular or irregular. It is misleading to draw distinction between orders that are "void". in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders which are "voidable" in the sense that they may be enforced until set aside, since any order must be obeyed unless and until it is set aside and there are no orders which are void ipso facto without the need for proceedings to set them aside. [1984 (3) AII ER 140 (Issacs v. Robertson].

(2) If a contravention of an order is to be visited with penalties of a criminal nature that order must be in clear and precise terms setting out the obligations resting upon the person affected in clear and unmistakable language. The obligation must not rest upon any implication to be derived from and words used in respect of other matters by the Court; it must be couched in express terms and must be brought directly to the notice of the party. (Hayat Ahmed Khan v. Bashir Sadiq (PLD 1952 Lahore 48).

17. In view of the principles discussed in above judgments, it is contended by the learned Attorney-General that without prejudice to his other pleas, in absence of any specific directions to refund Sales Tax and Customs Duty etc., and for lack of contumacious acts by the C.B.R. or its officers, no proceedings for contempt of Court can be initiated against them, therefore, he prayed for the rejection of the application.

18. We have considered the arguments of both the sides, keeping in view the relevant,, record maintained by this Court, pertaining to C.P.S.L.A. No. 1084-L of 1997, C.A. 1176 of 1997 and C.R.P. No. 80 of 1999 as well as judgment of Lahore High Court, Lahore passed in I.-C.A. No.84 of 1997 in Writ Petition No.1972 of 1996, concluding paras wherefrom have already been reproduced hereinabove. A careful perusal of above orders indicates that vide order, dated 9th October 1997, passed by this Court at the time of granting leave to appeal. Bank Guarantee was furnished by the petitioner but in the decision of Civil Review Petition No. 80 of 1999, dated 19th February, 2001, no directions were made to refund Customs Duty or sales Tax, therefore, ii is held that the amount received by the respondents on encashment of Bank Guarantee was not refundable automatically.

19. Learned counsel for petitioner vigorously insisted for initiating contempt proceedings against the officers of C.B.R. as according to him they are responsible for violating the judgment, dated 19th February, 2001, but we are not persuaded to subscribe to his view-point; firstly for the reason that the C.B.R. or its Officers, in the letters, addressed to petitioner from time to time including 10th, 11th May, 2001, 9th April, 2002, had not denied the refund of Customs Duty. Sales Tax and Service Charges to petitioner, secondly in the judgment passed Civil Review Petition No.80 of 1999, dated 19th February, 2001, no directions were made to the respondent-Government as well as C.B.R. for the refund of the amount immediately, as observed therein-above that on accepting the review petition, the judgment of the Lahore High Court, dated 24th August, 1997 was restored wherein it has been held that petitioner is entitled to for ex-emption, of Customs Duty, Sales Tax and Service Charges in view of authorization letter, dated 26th June, 1996. It is important to note that before the Lahore High Court the petitioner had not furnished any bank guarantee for the purpose of release of Tractors nor the said Court as well as this Court in, the judgment passed in Civil Review Petition, dilated upon the question whether the burden of Customs Duty and Sales Tax has been passed on or not by the petitioner to end consumer of Tractors; thirdly; the C.B.R. had been insisting the petitioner to furnish its accounts, enabling it to make the refund if permissible under the law but petitioner, instead of doing so, approached the Court with contempt proceedings for the purpose of causing harassment to the C.B.R. or its Officers fourthly, entitlement of the petitioner for the refund would be determined in accordance with law as well as practice invoked, which have attained the status of law; fifthly power of punishment for contempt is not used to cast slander or to. ridicule any person, but essentially to devise ways and means for doing complete justice with utmost impartiality.. for the general benefit thereby, promoting public good; so that aggrieved party could fearlessly invoke the jurisdiction of the Court to avail all remedies which are permissible under the law, and to have complete satisfaction of redress as regards wrong done to him. Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823).

20. Now it remains to be examined as to whether the C.B.R. after the decision of Civil Review Petition No. 80 of 1999 could legally ask the petitioner to explain as to whether the incidence of Sales Tax had been passed on to the end user of the Tractors or not?

21. Learned counsel having narrated the above facts contended that the C.B.R. or any other Officer, in law, is not competent/empowered to re-open the issue, which had already been settled namely that petitioner being importer of the Tractors is exempted from the payment of the Sales Tax, in pursuance of letter, dated 26th June, 1996, which had been equated with a notification in the judgment, dated 19th February, 2001, thus in view of principle of constructive res judicata, the C.B.R. was legally estopped to demand, details from the petitioner in respect of passing on the burden of the Sales Tax.

22. In order to substantiate his plea learned counsel placed reliance on the judgments reported in the cases of Noor Muhammad v. Assistant Commissioner Vehari (1986 SCMR 292), Pardool v. Gulzada (PLD 1995 SC 410), Amanul Mulk v. Mian Ghafoor-ur-Rehman (1997 SCMR 1796) and Bashir Ahmed v. Allah Jawai (2000 SCMR 1112).

23. On the other hand learned Attorney-General for Pakistan, assisted by Mr. Muhammad Afzal Sidiqui, Advocate Supreme Court contended that the argument so raised on behalf of the petitioner is not available to it at all, in view of the fact that in the earlier round of litigation, this Court had never decided the question of passing on the burden, as it had never arisen at that time.

24. We have considered the arguments put forward by both the sides. In this behalf, first of all it is to be noted that petitioner is claiming relief of the refund of Customs Duty and Sales Tax as well as Service Charges, in pursuance of the judgment, dated 19th February, 2001. A careful perusal of the judgment persuades us to hold that no order has been passed for the refund of these amounts. The relief, regarding exemption from the Customs Duty and Sales Tax, has been given to petitioner, considering the letter, dated 26th June, 1996, to be a notification, issued under section 19 of the Customs Act. There is no doubt in holding that this Court had not dilated upon the question of refund of Customs Duty and Sales Tax, on taking into consideration whether the burden of the Customs Duty and Sales Tax had been passed on to the consumers or not? As it has been noted during the arguments put forward by the Attorney-General that even prior to passing of the judgment of this Court,. the question relating to passing on the burden by the petitioner was never agitated by either of the parties before this Court as well as before the High Court, where proceedings of I.-C.A. and Writ Petition, filed by the petitioner, were pending. It is a well-settled principle of law that under the provisions of section 11, Explanation IV, C.P.C., any matter which might or ought to have been made ground of defence or attack, in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

25. A careful perusal of the judgments relied upon by the learned counsel for petitioner reveals that:--

(1) In Pardool's case (ibid) it was held that if a plea was available to party in an earlier round of litigation but the same was not agitated then in subsequent proceedings said party would be debarred to raise the same question in view of the provisions of section 11 and Order II, Rule (2), C.P.C., whereas in instant case, the respondents had no occasion to plead the question relating to incidence of passing on the burden of Sales Tax as at that time altogether a different question was before the Court, particularly in view of the fact that they were respondents before the High Court in the Writ Petition and in L-C.A. as well as in proceedings in Civil Review Petition No.80 of 1999. However, so far as the proceedings in Civil Appeal No. 1176 of 1997 are concerned, they were the appellants and their grievance was only to the extent of judgment of the High Court passed in I.-C.A. No. 84 of 1997, therefore, it was not legally possible for the respondents to agitate this point.

(2) In Amanul Mulk's case this Court has held that the rationale behind the constructive res judicata is that if the parties have had an. opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such ground in the former suit and it shall be further deemed that such ground had been heard and decided as if such matter, had been actually in issue. Thus, such parties shall be precluded from raising these grounds in a subsequent' suit.

(3) In Bashir Ahmed's case, petitioner failed to establish that Mutation entry No.172, dated 30th July, 1962 was violative of MLR-64 and had been obtained and sanctioned through fraud and misrepresentation and in second round of litigation the same question was raised, therefore, in this context it was held that the petitioner at this stage cannot dare out to re-agitate the plea which they out to have proved in the first round of litigation.

26. In this context it is to be noted that this Court in the case of Province, of Punjab v. Ibrahim and Sons (2000 SCMR 1172), while examining the question of constructive res judicata in accordance with section 11, C.P.C. had laid down the following five principles:--

(1) The matter directly and substantially in issue iii the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

(2) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.

(3) The parties as aforesaid must have litigated under the same title in the former suit.

(4) The Court which decided the former suit must have been a Court competent- to try the subsequent suit in which such issue is subsequently raised.