Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: S.M. Ali Zaman Gardezi and another VS Respondent: Federation Of Pakistan through JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Rashida Asad Title:S.M. Ali Zaman Gardezi and another vs Federation Of Pakistan through
JUDGMENT
Reported As: 2021 PTD 1788 Result: Petition allowed Judgment JUDGMENT MRS. RASHIDA ASAD, J.---- Muhammad Iqbal Muneeb son of Muhammad Hanif, Additional Director Customs Valuation, Customs House, Karachi, S.M. Ali Zaman Gardezi son of S.A. Haider Zaman Gardezi, Secretary (Customs Tariff-III) FBR, Islamabad and Shah Faisal Sahu son of. Maher Shah Muhammad Sahu, Assistant Collector , Customs/FBR the petitioners respectively in C.P. No.D-1213 of 2015 and Dr. Zulfiqar Ahmed Malik son of Muhammad Hanif Malik, Collector of Customs of Appeals at Karachi the petitioner in C.P. No.D-1214 of 2015, being civil servants of Federal Board of Revenue (FBR), have alleged harassment by the F.I.A. Authorities pursuant to Inquiry No.31 of 2013 and have also challenged the letters dated 22.08.2014, 17.09.2014, 20.02.2015 issued by the respondents No.2 (Secretary Revenue Division Ex-Of ficio Chairman Federal Board of Revenue, Islamabad) in purported exercise of powers under F.I.A. Act, 2014, being without jurisdiction and lawful authority and also arbitrary in nature and seek the following relief(s):- (a) Declare that in view of the dictum laid down in the judgment dated 21,04.2014 passed by the Hon'ble Islamabad High Court reported as 2014 PTD 1531 , all the enquiries, reports and actions taken or being taken up by the respondents in the matter of Amnesty Scheme introduced vide SRO No.172(I)/2013, are patently illegal, ab-initio void in gross violation of Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as violating the doctrine of constructive res-judicata. (b) Declare that the so-called enquiry and investigation being conducted by the Respondent No.4 in the shape of fishing and roving Enquiry No.31 of 2014 as well as the letters dated 22.08.2014, 17.09.2014 and 20.02.20,15 are patently illegal, ultra-vires, void ab-initio, of no legal effect and in gross disobedience and violation of commands contained in Section 217 of the Customs Act, 1969 read with Article 13(a) of the Constitution read with Section 403,
---
## Page 2
Cr. P. C. as well as in gross disobedience and contempt of the interim order dated 11.11.2013 and final judgment of Division Bench of the Hon'ble Islamabad High Court dated 21.04.2014 passed in I. C.A. No.950 of 2013; (c) Declare that respondent No.4 has no lawful authority and jurisdiction under the F.I.A Act, Customs Act or F.T.O. Ordinance to start a fishing and roving Enquiry No.31 of 2013 in respect of the aforesaid Amnesty Scheme which has already been declared as valid by the Hon'ble Islamabad High Court by judgment dated 21.04.2014 passed in 1. C.A No.950 of 2013; (d) Consequently , this Hon'ble Court may further declare that the aforesaid reports of Respondents Nos. 1 and 3 or any other individual complaint involving criminal offence on the part of certain individuals for their own benefit, cannot be made the basis for initiating the so-called Enquiry No.31 of 2013 initiat ed by Respondent No.4 against the petitioners; (e) Pass order for immediate judicial and department enquiry into the conduct of respondent No.4, more particularly , in view of submissions made in paras Nos.25 and 26 of the body of the petition, where after, this Hon'ble Court may further be pleased to pass order directing the respondents No.2(b) for removal of respondent No.4 from the service of FIA; (f) Mandatory injunction suspending the operation of the impugned letters of respondent No.4 dated 22.08.2014, 17.09.2014 and 20.02.2015 as well as so-called Enquiry No.31 of 2013 initiated by respondent No.4 in the matter of Amnesty Scheme in question, as well as the consequent proceedings against the petitioners be suspended; (g) Grant permanent injunction restrain all the respondents, specially the respondent No.4, their employees, investigators, subordinates, agents, representatives, attorneys, successors or any one claiming on their behalf, from collecting the records or intedering into the adjudication matter of Amnesty Scheme in question, as well as from taking any coercive action, including but not limited to prosecution or conduct any further enquiry and investigation against the petitioner in respect of the Amnesty Scheme in question, not to visit the office of the petitioners, as well as not to harass or arrest the petitioners; (h) Consequential relief(s), which this Hon'ble Court deems fit and proper under the circumstances of the case may kindly be passed; Grant any other relief(s), which this Hon'ble Court deems fit and proper under the circumstances of the case; (j) Costs of the petition. 2. Precisely , the facts leading to file instant petitions are that the aggrieved petitioners are the employees of Federal Board of Revenue and serving as officers of Customs Department posted at Karachi. On 05.03.2013, respondent No.2(i) (Secretary (Revenue Division Ex-Of ficio Chairman Federal Board of Revenue, Islamabad), after taking permission as well as with the consultation of Minister of Finance, Revenue, Economic Affairs, Statistics and Pharming and Development notified the Amnesty Scheme vide SRO No.172(I)/2013 ("SRO") for regularization of smuggled vehicles, which were seized by the Customs Authorities. Pursuant to the aforesaid SRO, seized smuggled vehicles were released by the relevant department. During existence and enforcement of Amnesty Scheme, the petitioners were posted in MCC Appraisement, Customs House, Karachi, whereby they were assigned the job for adjudication of cases under the Customs Act, 1969, for regularization of smuggled vehicles under the said Amnesty . Thereafter , time to time different further . SROs were issued by the respondent No.2(i) for effective implementation of the aforesaid SRO and to devise certain methods and mechanism. On 08.03.2013. respondent No.1(i) addressed a letter to all the Collectorates of Customs throughout Pakistan including the Director General Intelligence and Investigation, FBR,. Islamabad, regarding implementation of the aforesaid SRO and provided guidelines to address queries made by the different Collectorates. On the same date, a further notification vide SRO No.185/13 was also issued, slight substitutions and amendments in sub-paras (iii) and (iv) of SRO. Thereafter , on 13.03.2013, respondent No.1(i) also issued instructions with regard to SRO to all the Collectorates and issued office orders providing detailed mechanism to be observed by the different Collectorates of Pakistan Customs throughout Pakistan for examination, issuance of NOC, adjudication, assessment and requirement of affidavits. 3. It is pertinent to note that petitioner No.1 in C.P. No.D-1213 of 2015 has expired during the course of proceedings on 16.07.2020 and copy of such Notification dated 22.07.2020 issued by Government of Pakistan
---
## Page 3
(Revenue Division) Federal Board of Revenue is on record. 4. Khawaja Shams-ul-Islam, Learned Counsel for petitioners contended that the petitioners strictly and rigorously followed the aforesaid principles, rules, laws and regulations for implementation of the aforesaid SRO, which was time to time amended and there was no complaint at all from any quarter . Rather on 14.06.2013, the respondent No.1(i) rewarded the petitioners with cash awards for their meritorious servic es and performance. Through Amnesty Scheme, thousands of vehicles of all nature were regularized and cleared and by recovery of duties, taxes, penalties huge revenue was collected in the government exchequer by the respondent No.1(i) after successful implementation of aforesaid SRO. Besides, the provincial governments also collected huge revenue by registration of vehicles regularized through the said SRO. However , some disgruntle and frustrated officers in the government found it a golden opportunity to start mudslinging and maligning the aforesaid Amnesty Scheme introduced by the SRO, and they became a tool in the hands of local car assemblers, who with the collusion of many others devised a well knitted conspiracy against the Federation of Pakistan and respondent No.1(i) by putting forward a person namely , Khawaja Saad Saleem, who filed Writ Petition No.1476 of 2013 before the Islamabad High Court against FBR as well as Federation of Pakistan. Consequently , vide judgment dated 19.06.2013, learned Single Judge of Islamabad High Court allowed the aforesaid petition. Thereafter , being aggrieved and dissatisfied with the aforesaid judgment dated 19.06.2013, FBR filed Intra Court Appeal No.950 of 2013 before the Divisional Bench of Islamabad High Court which appeal was allowed vide judgment dated 21.04.2014 setting aside the judgment passed by the learned Single Judge on 19.06.2013 with further declaration that SRO No.172(I) of 2013 was validly and legally issued and Amnesty Scheme was neither discriminatory nor illegal. In the meanwhile, respondent No.2 (FIA) also without any lawful authority and jurisdiction under the FIA Act, 1974, and under the Customs Act, 1969 have initiated Inquiry No.31 of 2013 in the matter of Amnesty Scheme and in this regard, petitioners received letters dated 22.08.2014, 17.09.2014 and 20.02.2015 from the Directors FIA. It is further contended that the controversy agitated through instant petitions is fully covered by recent judgments of this Court in the cases of Universal Cables Industries Limited v. Federation of Pakistan and others reported as PLD 2020 Sindh 601, Wali Muhammad Shaikh v. Federation of Pakistan and others reported as 2018 YLR 2624 and Dr. Ashfaq Ahmed Tunio and others v. FIA and others reported as 2018 PLC (C. S.) 1264 , therefore, requests that instant petitions may be allowed in similar terms. 5. Mr. Muhammad Khalil Dogar , Learned Counsel for the respondents, while confronted with above position as stated by learned Counsel for petitioner s, has candidly submitted that the controversy agitated through instant petitions appears to be covered by aforesaid judgments, however , respondents have been proceeded against the petitioners in these cases on the directions of Federal Tax Ombudsman, therefore, there is no mala fide on the part of respondents. 6. Mr. Muhammad Aminullah Siddiqui, learned Assistant Attorney General has expressed similar views as stated by the learned Counsel for the respondents. 7. We have heard the learned counsel for the parties at a considerable length and have gone through the documents. 8. It is contended on behalf of the petitioners that controversy agitated through instant petitions is fully covered by above referred judgments of High Court in cases of Universal Cables Industries Limited v. Federation of Pakistan and others reported as PLD 2020 Sindh 601, Wali Muhammad Shaikh v. Federation of Pakistan and others reported as 2018 YLR 2624 . Learned Counsel for Petitioners requested that Petitions may be allowed in similar terms. Learned Counsel for the respondents on being confronted with such position, as stated by the learned Counsel for the petitioners, has candidly submitted that the controversy agitated through instant petitions appears to be covered by aforesaid judgments, however , respondents have proceeded against the petitioners in these cases on the direction of Federal Tax Ombudsman, therefore, there is no mala fide on part of respondents. Similar views have been expressed by the learned Assistant Attorney General. 9. The inquiry initiated by the FIA in the instant case and the suo motu proceedings by the Federal Tax Ombudsman have been initiated inspite of the fact that the validity of amnesty scheme in respect of the subject vehicles and legality of the SROs, including SROs 172(I) and 185(I) of 2013, issued in this regard by the Federal
---
## Page 4
Government was sub-judice before Islamabad High Court in Writ Petition No.1476 of 2013, which was decided vide judgment dated 19.06.2013, whereafter , Intra Court Appeal No.950 of 2013 was filed before a Divisional Bench of Islamabad High Court, who vide its judgment dated 21.04.2014 was pleased to declare that the subject SROs were validly issued and the amnesty scheme was neither discriminatory nor illegal. It further appears that the allegations against the petitioners do not fall within the offences as scheduled in the FIA Act, 1974, whereas, nothing has been produced to show that prior permission was obtained from the relevant authorities for initiating the proceedings against the petitioners as required unde r the Federal Investigation Agency (Inqu iries and Investigations) Rules, 200g. No material whatsoever has been produced by the respondents, which could suggest that the petitioners have violated the provisions of the Customs Act, 1969, or acted beyond the aforesaid SROs issued by the Federal Government for implementation of amnesty scheme, nor it has been shown that the petitioners have misused and abused the process of law for illegal gains. 10. From perusal of the comments filed on behalf of FIA and submissions of their learned counsel, it has transpired that the FIA has merely acted on the directions of the Federal Tax Ombudsman, without having any material or evidence against the petitioners, and started a fishing and roving inquiry against them as per directions of the Federal Tax Ombudsman. It is surprising to note that the Federal Tax Ombudsman in the instant matter in a purported exercise of suo motu jurisdiction, while placing reliance on some portions of the investigation report on smuggled vehicles relating to Amnesty Scheme 2013, without issuing any notice to the petitioners for seeking their explanation with regard to the allegations as contained in the report, drawn adverse inference against the petitioners and issued directions to the FIA for initiating the inquiry . There is no cavil to the proposition that the Courts while exercising the Constitutional jurisdiction may abstain from granting any stay against an inquiry initiated by the competent authority against a public functionary; provided such inquiry has been initiated in accordance with law and relevant rules by the competent authority after complying with all codal formalities. However , if there is an allegation of mala fide and abuse of the process of law, and even the jurisdiction to initiate such inquiry by such authority is under challenge, then the Courts are under legal obligations to examine, as to whether the very initiation of inquiry against an aggrieved person does not suffer from any jurisdictional defect, and has been initiated in accordance with law and the relevant rules after complying with all codal formalities and there is no element of mala fide or violation of princ iples of natural justice. The validity of amnesty scheme and the relevant SROs as well as its implementation by the Customs Authorities was subject matter before a Divisional Bench of Islamabad High Court, who through its judgment dated 21.04.2014 passed in Intra Court Appeal No.950/2013 was pleased to decide all the factual and legal aspects involved in the matter . We are of the opinion that once the matter is sub-judice before the competent Court of jurisdiction, no other Court or authority , including FIA or for that purpose Federal Tax Ombudsman, can initiate any duplicate proceedings in respect of the same subject matter , as it will amount to showing disrespect to the Court proceedings at the one hand and it will also tantamount to double jeopardy and multiplicity of proceedings on the other hand. Moreover , for -the purposes of implementation of Tax Law, including Income Tax Ordinance, 2001, Sales Tax Act, 1990 and the Customs Act, 1969, complete mechanism and hierarchy is provided for the purposes of assessment and adjudication of tax liability through quasi-judicial proceedings. Whereas, in case of any dispute, forum of an appeal before the Commissioner/Collector (Appeals) and 2nd appeal before the Appellate Tribunal specially constituted for the purposes of deciding all factual and legal controversies relating to all Tax Law, Rules and Regulations, SROs, etc. have been provided by the Legislature. In addition to above appellate forums, reference jurisdiction is also available before the respective High Courts and, thereafter , eventually the leave to appea l can be filed before the Hon'ble Supreme Court of Pakistan for final adjudication of proceedings under the Tax Law. Learned counsel for the respondents have not been able to justify , as to how the matters pertaining to the Customs Act, 1969 and the quasi-judicial orders passed by the Tax Authorities in the instant matter which was subject to scrutiny by Islamabad High Court, could be taken cognizance by the FIA Authorities under a purported inquiry initiated on the directions issued by the Federal Tax Ombudsman in the suo motu exercise/jurisdiction. More particularly , when such authority is not even vested in the Federal Tax Ombudsman to examine the validity or otherwise of any order of assessment or adjudication passed by the Tax Authorities. Whereas, in terms of Section 9 of the Federal Ombudsman Ordinance , 2000, only a complaint of mal-
---
## Page 5
administration by the Tax Authority , can be the subject matter of scrutiny by the Federal Tax Ombudsman, whereas, notice is required to be issued to the person against whom action has to be taken under Section 10 of the Federal Ombudsman Ordinance, 2000, however , in the instant case, no such legal procedure has been adopted by the respondents. Reliance in this regard can be placed in the case of Syed Nusrat Nasir v. Federation of Pakistan through Secretary and 3 others ( 2013 PTD 486 ), wherein it has been held as under: - "9. From perusal of the provisions of subsection (1) of section 9, it is seen that the Federal Tax Ombudsman acquires jurisdiction under the Ordinance on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly , as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, to investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee. From perusal of subsection (2) of section 9, it is seen that the assumption of jurisdiction by the Federal Tax Ombudsman under subsection (1) is subject to provision of subsection (2) of section 9, which oust the jurisdiction of the Federal Tax Ombudsman to investigate or inquire into matters, which are subjudiced before a court of competent jurisdiction or tribunal or board or authority on the date of receipt of a complaint, reference or motion by him. Similarly, Federal Tax Ombudsman has no jurisdiction to investigate or inquire into matters, which relate to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the relevant Legislation. It has also emerged that the Federal Tax Ombudsman has the jurisdiction only to investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee, which means that unless there is any allegation of maladministration on the part of the Revenue Division or any Tax Employee, no decision, finding or recommendation can be made by the Federal Tax Ombudsman under the Federal Tax Ombudsman Ordinance, 2000. In the instant matter , admittedly , no complaint of maladministration against the petitioner was filed by an aggrieved person nor any reference against the petitioner by the President, the Senate or the National Assembly was made. Neither any motion of the Supreme Court or a High Court was made during the course of any proceedings before it. Even no proceedings of his own motion against the petitioner were initiated by the Federal Tax Ombudsman in the instant matter as evident from the impugned order passed by him. After having examined the facts of the instant case and the provisions of section 9 of the Federal Tax Ombudsman Ordinance, 2000 relating to jurisdiction, functions and powers of the Federal Tax Ombudsman, we are of the considered view that the recommendations made by the Federal Tax Ombudsman against the petitioner in the instant case were corum non judice without jurisdiction, hence of no legal effect on this account alone. 10. We have further noted that the Federal Tax Ombudsman, while making recommendations against the petitioner for initiation of proceedings under Removal from Service (Special Powers) Ordinance, 2000, besides wrongful assumption of jurisdiction against the petitioner , has also not followed the procedure as laid down under section 10 of the Federal Tax Ombudsman Ordinance, 2000. It will be advantageous to reproduce the relevant provisions of subsection (4) and subsection (6) of section 10, which are attracted to the facts of the instant petition. "(4) When the Federal Tax Ombudsman proposes to conduct an investigation he shall issue to the Secretary of the Revenue Division, and to the person who is alleged in the complaint to have taken or authorized the action complained of a notice calling upon "him to reply to the allegations contained in the complaint. (6) A person shall be entitled to appear in person or be represented before the Federal T ax Ombudsman." 11. From perusal of hereinabove provisions, it is clear that even if it is presumed that through impugned order the learned Federal Tax Ombudsman wanted to assume jurisdiction against the petitioner on his own motion (though in the absence of any complaint of maladministration against the petitioner) he was required to conduct an investigation and to issue a notice to the petitioner calling upon him to reply to the allegations whereafter the petitioner was entitled to appear in person or through a representative before the Federal Tax Ombudsman to rebut the allegations and further to explain his position with regard to allegations against him. Admittedly , no notice was issued to the petitioner nor any opportunity was provided to him before making the impugned recommendations against the petitioner in the instant case, which is not only the violation of the legal procedure provided under the
---
## Page 6
Federal Tax Ombudsman Ordinance, 2000, but also negates the principles of Natural justice, which entitles a person for a fair trial and a reasonable opportunity of being heard. The decision and recommendations against the petitioner under the circumstances are liable to be set aside on this account also." 11. The assumption or jurisdiction by the FIA has been discussed in detail in a recent judgment by the Divisional Bench of this Court in the case of Universal Cables Industries Limited v. Federation of Pakistan through Secretary , Ministry of Interior , Islamabad and 3 others (PLD 2020 Sindh 601), wherein it has been held as under: - "8. It is settled legal position that assumption of jurisdiction by any judicial, quasi-judicial or executive forum provided under the relevant laws, includ ing the High Court(s) and the Supreme Court established under the Constitutional provisions, is the primary concern of such forum, and unless, the jurisdiction to proceed with the matter is conferred in clear and unambitious language to such forum under the relevant laws, cognizance of the matter cannot be taken for want of jurisdiction. Extra caution and care is exercised even by Superior Courts in respect of issues relating to jurisdiction. However , it has been observed that such due care and caution is not exercised by the executive forums, more particularly , the Federal and Provincial investigating agencies while initiating inquiry and investigation or taking cognizance of a complaint without examining as to whether alleged offence falls within the ambit of Schedule attached to FIA Act, 1974. Jurisdiction upon a Court. Tribunal or Administrative Authority is conferred by law in clear and unambiguous words for taking cognizance and to decide the legal and factual disputes in accordance with law, so that there shall be no ambiguity between the litigant parties to approach such forum for resolution of dispute. Any decision even by a Court of law, or by the highest executive authority becomes redundant if it suffers from the jurisdiction defect. Similarly , Notifications, Orders, Circulars and Memorandum, if issued, without lawful authority or suffer from some jurisdictional defect, the same can be struck down by the Courts on this ground alone. However , it is unfortunate to observe that this substantial legal issue relating to assumption of jurisdiction which goes to the very root of proceedings, either does not attract the attention or is…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.