YAHYA AFRIDI, J.-Additional Director, Customs Intelligence and Investigation, F.B.R., Peshawar has challenged the order and judgment passed by the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar ("Tribunal") dated 7-12-2009 by invoking the jurisdiction of this court under section 196 of the Customs Act, 1969 ("Act").

2. The present reference seeks this court to consider the impugned judgment of the Tribunal on the following questions or law:--

"(a) Whether the honourable Appellate Tribunal has rightly appreciated the facts and law applicable to the case?

(b) Whether the sale of the vehicle u/s 524 Cr.P.C. means that the owner/buyer or the seller has no liability toward the customs duty and taxes?

(c) Whether it was not the duty/responsibility of the seizing department to verify that customs duty and taxes have been paid or it is a non-duty paid vehicle?

(d) Whether the sale in such like circumstances will not encourage the smugglers of vehicles to first seize their non-duty paid vehicle and then purchase it with out payment of duty and taxes?

(e) Whether it was not the responsibility of the DOR or the purchaser to inspect the import documents from the concerned registration deportment?

(f) Whether it was not the responsibility of the purchaser to verify its import document before its purchase and to see that is there any defect in the vehicle or its documents?

(g) Whether the order of the appellate tribunal is a speaking order?

(h) Whether a vehicle purchased in scrap can be used as in running condition?

(i) Whether it was not duty of the DOR to check that being an imported vehicle customs duty and taxes have been paid on it?

(j) Whether the sale is not in utter violation of the transfer of Property Act, 1882?"

3. The Facts leading to the present reference are that on a secret information, the Intelligence and Investigation Staff of F.B.R. ("Intelligence Staff") at Peshawar at 1300 hours on 22-1-2009, intercepted a Toyota Corolla Car bearing registration No.LZY 2427 ("Vehicle"). Riasat Mehmood, the present respondent No.2, on demand by the Intelligence Staff, produced an auction certificate bearing No.C. No. DN/MM-II/3445 dated 28-10-2004 ("Certificate") issued by District Officer (Revenue), Lahore-I ("DOR"). Despite the production of the Certificate, the Intelligence Staff detained the Vehicle for further verification. DOR in response to a written query by the Intelligence Staff vide letter dated 2-2-2009 confirmed that:--

"(i) The letter No.DN/MM-II/3445 DATED 28-10-2004 has been issued by this office.

(ii) The vehicle has been auctioned under sections 517 and 524 of Cr.P.C. read with amendment by Ordinance XXXVII of 2001 dated 13-8-2001.

(iii) the vehicle in question was received from the Police, who have taken the same in their custody under section 500, Cr.P.C. The condition of the vehicle was in the shape of scrap.

(iv) Not applicable, as it was taken into possession by the police under section 550, Cr.P.C.

(v) Not known, as per above contention given in Para iii and iv, the condition of the vehicle was in the shape of scrap Therefore, no previous number was available."

4. The Intelligence Staff being not satisfied with the aforementioned letter received from DOR, further sought the examination of the Vehicle from the Forensic Science Laboratory at Peshawar ("FSL"), which clearly brought to light that there was no tampering of the chassis number of the Vehicle.

5. Even this confirmation of FSL did not satisfy the anxiety of the Intelligence Staff and further checking the Customs Data Bank of the imported vehicles was carried out and it was found that the Vehicle was not recorded as legally imported. Accordingly, the Vehicle was seized and show-cause notice dated 26-2-2009 was issued to present respondent No.2 seeking:-

"Now, therefore, you Riazat Mehmood son of Khalil-ur-Rehman and Daulat Khan son of Hazrat Umer Khan are hereby called upon to show cause within ten days of the receipt of this notice as to why the seized vehicle should not be confiscated for violation of sections 2(s) and 16 of the Customs Act, 1969 read with section 3(I) of the Import and Export (Controls) Act, 1950, besides taking against you any other action as envisaged by section 156(I)(8)(89) of the Customs Act, 1969 read with S.R.O. 487(I)/2007 dated 9-6-2007."

6. The Adjudicating Officer vide Order-in-Original No.63 of 2009 confiscated the Vehicle. The present respondent No.2, aggrieved thereof impugned the same in appeal, which was also dismissed vide Order-In-Appeal No.429 of 2009 dated 28-8-2009.

7. This led the present respondents to invoke the jurisdiction of the Tribunal impugning the Order-in-Appeal No.429 of 2009. The Tribunal relied upon the judgment of the august Supreme Court of Pakistan delivered in CPLA No.4020-L of 2001 titled "Province of Punjab v. Arshad Mahmood, wherein it was held that:-

"(4) We have considered the arguments of the learned counsel and minutely examined the record. The Deputy Commissioner auctioned the property after publication of notice in the Daily Nawa-i-Waqt of 9th August, 2000. The respondent was the highest bidder, who paid the entire amount in favour of the State. After acceptance of his bid, the district Magistrate wrote letter to the Motor Registration Authority for registration of the vehicle in question the name of the respondent. The Assistant Collector of Customs, Government of Pakistan, Nabha Road, Lahore, through a letter (available at page 32 of the paper book) informed the District Magistrate, Lahore to the effect that;

"(2) At the outset, it is not clear from the contents of the letter referred to above that the vehicles in question were liable to confiscation under the provisions of the Customs Act, 1969 or otherwise. However, the confiscation, as apparent from the letter, has been done with reference to the provisions of the Code of Criminal Procedure, 1898, read with section 25 of the Police Act, 1861. In other words, the cognizance of the case property has not been taken under the Customs Act, 1969.

After receipt of the aforesaid letter, the Deputy Commissioner, Lahore vide letter dated 12-7-2001, informed the Director (Motor Registration) Excise and Taxation, Lahore that "the confiscations of vehicles have not been made under the Customs Act, 1969, therefore, it is evident from the letter under reference that no NOC is required for the auction of said vehicles". He further informed that "in view of the above, NON is not required under sections 516, 517, 524 and 525, Cr.P.C. 1898, and for the vehicles confiscated under section 25 of the Police Act, therefore, matter may please be closed and further action may be taken for registration of vehicles accordingly. "Even then, the vehicle in question was not registered in the name of the respondent. The contention of the learned counsel that no reasonable opportunity of hearing was afforded to the petitioners, is also not borne out from the record, because the impugned order shows that on the date of hearing i.e. 23-10-2001 Mr.Zahid Aslam Khan, A.A.-G. along with Mr.Muhammad Hanif, ETO, was present in the Court and they were heard.

(5) From the letters referred to hereinabove, it is crystal clear that objection of the Registration Authority that NOC from customs Department may be obtained or some other documents may be filed for registration of the vehicle in question, was totally irrelevant and rightly rejected by the learned Judge of the High Court in Chambers. It would be advantageous to refer to relevant portion of the impugned order, which reads as under:--

",..it is evident that the State acquired title because the vehicle was confiscated. In the circumstances, the State was also entitled to pass on valid title to the petitioner who has purchased the vehicle in question through an open auction and has admittedly paid the entire amount of the auction price to the State."

(6) In our considered view, the impugned order is based on the principles of equity, fair play and justice. There is no misconstruction of law, or misreading, or non-reading of the material evidence. This petition is without merit and substance, which is hereby dismissed and leave to appeal is declined.

8. The learned counsel for the petitioner-Department vehemently argued that the main issue in dispute in the present case was correctly dealt with in the judgment rendered by the worthy High Court in case titled Ch.Muhammad Ashraf v. Deputy Superintendent Anti-smuggling Squad (PLD 1977 Lahore 300) and the judgment of the august Supreme Court was not relevant to the facts of the present case.

9. The learned counsel for the respondents rebutting the stance taken by the learned counsel for the petitioner-department contended that the Tribunal had correctly appreciated the correct legal position by relying upon the judgment of the august Supreme Court of Pakistan and in addition contended that any other view would shatter the faith and truth of the general public in the governmental functions. This, he stated would be contrary to the mandate provided under Articles 7 and 150 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance was placed on Zahidullah v. Secretary Mines (2007 YLR 1920).

10. The learned counsel for the petitioner department was provided time to seek further instructions from F.B.R. regarding any recent development in the matter relating to public auctions and also to research on any decisions thereon by the august Supreme Court of Pakistan but to no avail.

11. In view of the clear "ratio decedendi" laid down in the judgment of the august Supreme Court of Pakistan in Arshad Mehmood's case, ibid, it would not be appropriate for this court to follow the 'dicta' rendered by the Lahore High Court in Ch. Muhammad Ashraf's case, ibid.

12. Accordingly, this court is of a firm and considered opinion that in the peculiar circumstances or the present case, the present reference and the questions of law agitated therein by the present petitioner do not warrant any legal consideration by this court under section 196 of the Act.

13. For the reasons stated, hereinabove, the present reference is dismissed.