KARACHI: A customs appellate bench of High Court of Sindh (SHC) comprising Justice Zulfiqar Ahmed Khan and Justice Adnan Iqbal Chaudhry has held that Special Custom Appellate Tribunal is not vested with powers to issue contempt notices and such practice would be encroaching the powers of High Court and Supreme Court.
The bench was hearing a constitution petition filed by Fayaz Rasool Mekan and Muhammad Daud Pirzada of Model Customs Collectorate (MCC) A & F-East Karachi who challenged the issuance of show cause notice to them by Member of Appellate Tribunal vide order dated 26-01-2022. The matter related to two appeals no 7417 and 7418 of 2021 and applicant moving contempt of court application alleged that order of the tribunal is not being implemented by the alleged contemnors/custom officials.
Sarfraz Ali Maitlo advocate appearing for the petitioners contended that tribunal is not empowered to initiate contempt proceedings and that Registrar of the Tribunal purportedly acted without directions of the Member of the SCAT. The bench then ordered Registrar to appear before the bench today.
Muhammad Siddique Brohi, Acting Registrar appeared before the court on notice. He produced two files in sealed envelope which was de-sealed by the court. The bench noted that a draft of Show Cause Notice (SCN) is appended in the file but such draft was not signed by any of the members of the Tribunal having different font , thus veracity of the said draft is highly questionable.
To a query by the court Mr Brohi told that he was serving as Senior Private Secretary and was given additional charge as registrar which seat is vacant at present.
The counsel for petitioner at this stage supplied copy of judgment PLD 2019, Sindh 624 to Mr Brohi who sought time to place the same before the bench seized with the issuance of show cause notice.
The SHC bench after detailed hearing held that “we are of the considered view that the Tribunal is vested with no powers to issue contempt notices and it is encroaching upon powers of this court and Honorable Supreme Court. The Tribunal is accordingly directed to act strictly in accordance with law and not to usurp the powers it do not possess”.
The senior member of the SHC bench then directed the Secretary, Ministry of Law & Justice Division to appoint a regular Registrar duly qualified to act as such after following the process within 15 days. Muhammad Siddique Brohi, is restrained from acting as Registrar forthwith.”
Justice Adnan Iqbal Chaudhry, junior member of the bench dissenting with the senior judge, in his dissenting order said that “Since the appointment of Mr Muhammad Siddique Brohi as acting Registrar of the Customs Appellate Tribunal is not a question directly before us in this petition, I am not inclined to pass any order in that regard”.
Regarding powers of Tribunal to initiate contempt proceedings the learned judge in his note of dissent said that However we have yet to examine whether the Customs Appellate Tribunal established under section 194 of the Customs Act is a “Court” within the scope of Article 175 of the Constitution of Pakistan. The answer to that in turn will determine whether the Customs Appellate Tribunal could have referred the matter of the alleged contempt to the High Court for taking notice under section 4 of the Contempt of Court Ordinance 2003; and if not, whether the Customs Appellate Tribunal is vested with powers to enforce its own orders under section 194C of the Customs Act 1969 or otherwise. Learned counsel and the D.A.G are expected to assist the court in this regard.
The bench later adjourned further proceedings to a date to be fixed by office of the court.