P L D 2010 Quetta 24
Before Jamal Khan Mandokhail and Muhammad Noor Maskanzai, JJ
Haji MUHAMMAD AFZAL and other s---Petitioners
Versus
SECRETARY FOREST DEPARTMENT, GOVERNMENT OF BALOCHISTAN,
QUETTA and others ---Respondents
Constitutional Petitions Nos.366 of 1997, 776 of 2000 and 313 of 2006; heard on 21st
October, 2009.
Forest Act (XVI of 1927) ---
----S. 39 & Second Schedule ---Central Laws (Statute Reforms) Ordinance (XXI of 1960),
S.3---Constitution of Pakistan (1973), Art.199 ---Constitutional petition ---Levy of duty in
imported timber ---Petitioners were aggrieved of levy/charge of tax on imported timber by
forest department on the ground that they had already paid customs duty at the time of its
import ---Plea raised by petitioners was that forest department could not recover any duty as
Forest Act, 1927 had not been adopted by Balochistan Government ---Validity ---Held, in
view of the amendments made under Central Laws (Statute Reforms) Ordinance, 1960,
Forest Act, 1927, was extended to the whole of Pakistan, meaning thereby that Forest Act,
1927, was applicable in the Province of Balochistan ---Provincial G overnment, under S.39 of
Forest Act, 1927, could levy duty in manner as it was declared by notification in official
Gazette on all timbers or forest produce ---Provincial Government could collect taxes and
duties on imported timber, therefore, forest depart ment had acted strictly in accordance with
law and no illegality was committed while collecting taxes from petitioners ---Forest
department had the authority to collect taxes, therefore, High Court directed the petitioners to
release amount as well as profi t/interest thereon in favour of forest department, which had
been deposited in bank ---Petition was dismissed in circumstances.
Syed Ayaz Zahoor and Obaidullah Qureshi for Petitioner (in C.P.No.366 of 1997).
Rauf Atta, Standing Counsel and Naseer Ahme d Bangulzai, Asstt. A. -G. along with Haji
Muhammad Azam, Law Officer Customs for Respondents (in C.P.No.366 of 1997).
Syed Ayaz Zahoor and Obaidullah Qureshi for Petitioner (in C.P.No.776 of 2000).
Rauf Atta, Standing Counsel and Naseer Ahmed Bangulzai , Asstt. A. -G. along with Haji
Muhammad Azam, Law Officer Customs for Respondents (in C.P.No.776 of 2000).
Syed Ayaz Zahoor and Obaidullah Qureshi for Petitioner (in C.P.No.313 of 2006).
Rauf Atta, Standing Counsel and Narer Ahmed Bangulzai, Asstt. A. -G. along with Haji
Muhammad Azam, Law Officer Customs for Respondents (in C.P.No.313 of 2006)
Date of hearing: 21st October, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---These identical petitions have been filed to
challenge the levy/charge of tax o n the imported Timber by the Forest Department,
Government of Balochistan.
2. Briefly stated facts of the case are the petitioners are dealing in the business of timber and
according to them, they are importing the same from Afghanistan to Pakistan. Whil e
importing the timber, they deposited the Customs and Excise Duty/Tax with Federal
Government and when they enter the Province of Balochistan, the Forest Department,
Government of Balochistan also charge tax from them. Their main -contention is that
accor ding to Article 163 of the Constitution of Islamic Republic of Pakistan, 1973 (the
Constitution),no one should be taxed twicely, therefore, the Forest Department, Government
of Balochistan has charged them, which is challenged through present petitions.
2. Previously a judgment was passed by this Court on 6 -3-1998, whereby C.P. No.366 of
1997 was accepted as prayed for. The Government of Balochistan, feeling aggrieved, has
preferred a civil petition for leave to appeal before the Honourable Supreme Court of
Pakistan, in which leave was granted in the following terms: ---
"6. Having considered all aspects of the case we feel that questions raised, whether
any prior permission from Forest authorities under provisions of Balochistan Forest
Regulation, 1890 a nd Pakistan Forest Act, 1927 are required for movement of timber
being `forest produce' through Balochistan Province even if same has been lawfully
imported and whether territorial limits with regard to actual placement of loading has
no relevancy and shal l be subservient to consequence for the movement of `forest
produce' as contemplated by the Balochistan Forest Regulations (supra) require
consideration. Leave is accordingly granted to consider, inter alia, above aspects."
The Honourable Supreme Court o f Pakistan, after hearing the appeal, has accepted the same
and remanded the case back to this Court, with .the directions to examine both aspects, on
which leave to appeal was granted. In the said judgment, directions in respect of payment of
taxes have a lso been made.
3. After remand of the case learned counsel for petitioners have submitted that under Article
163 of the Constitution, no one should be taxed twicely. According to them, they have
already paid taxes to the Federal Government through Custom s Department, therefore, the
Government of Balochistan through Forest Department has no authority to charge taxes.
They have also stressed upon the legal proposition that the Forest Act, 1927 (the Act) has not
been adopted by the Provincial Government. The y further stated that the Balochistan
Government has promulgated the Balochistan Forest Produce Transit Rules, 1998, therefore,
the imposition of duty in terms of the Rule could also not be made applicable retrospectively.
4. On the other hand, learned c ounsel for State, have submitted that the Forest Department is
empowered to collect taxes on an imported Timber to Pakistan under section 39 of the Act.
Their action is absolutely in accordance with law and is not in contravention of any
provisions of the Constitution.
5. We have heard learned counsel for the parties and have perused the record. In our view, the
main question for consideration is as to whether the Forest Act, 1927 has been extended to
Balochistan and the Provincial Government is empowered to collect taxes/duties upon
imported Timber.
6. It is important to mention here that on 9th June, 1960, an Ordinance, namely, Central Laws
(Statute Reform) Ordinance XXI, 1960 (the Ordinance) was promulgated; relevant provisions
of the Ordinace are rep roduced hereinbelow: ---
"Whereas the incorporation of certain former Provinces, Acceding States and Tribal
Areas into the Province of West Pakistan by the Establishment of West Pakistan Act,
1955, has rendered it expedient that certain charges should be made in the laws and
that certain laws should be extended to parts of the new Province to which they had
not extended before;
And whereas such extension has been agreed upon in consultation with the Provincial
Government of West Pakistan and the other au thorities concerned;
And whereas it is expedient to remove from the Statute -book certain Acts and
Ordinances which have become absolute or have discharged their function.
Now, therefore, in pursuance of the Proclamation of the seventh day of October,
1958, and in exercise of all powers enabling him in that behalf, the President is
pleased to make and promulgate the following Ordinance: ---
1. Short title .---this Ordinance may be called the Central Laws (Statute Reform)
Ordinance, 1960.
(2) Repeal of certain Central Acts and Ordinances .-The Central Acts and Ordinances
specified in the First Schedule are hereby repealed, and shall be deemed to have been
so repealed on the fourteenth day of October, 1955.
(3) Amendments to effect adaptation of Central Acts and Ordinances necessitated by
the establishment of West Pakistan .---(1) Save as otherwise expressly provided in any
Central Act or Ordinance, the Central Acts and Ordinances specified in the Second
Schedule shall extend to the whole of Pakistan, and shall be amended in the manner
indicated in the fourth column thereof, and shall be deemed to have been so extended
and amended on the fourteenth day of October, 1955."
In pursuance of the said Ordinance, in Second Schedule, following amendments in the F orest
Act have been brought: ---
"1. Throughout the Act, for the words "the Provinces and the Capital of the
Federation" the word "Pakistan" shall be substituted.
2. In section 1, ---
(a) in subsection (2), the word "Province" shall be omitted; and
(b) for subsection (3) the following shall be substituted, namely: ---
"(3) the Provincial Government of West Pakistan may, by Notification in the official
Gazette, extend this Act to the rest of the Province or any specified part thereof."
In view of a bove amendments, the Act has been extended to the whole of Pakistan, meaning
thereby that the Act is applicable in Province of Balochistan as well. In this behalf section 39
of the Act is relevant, which is reproduced hereinbelow: ---
"39. Power to impose duty on timber and other Forest produce .---(i) The Provincial
Government may levy a duty in such manner, at which places and at such rates as it
may declare by notification in the official Gazette on all timber or other forest -
produce -
(a) which is pr oduced in Pakistan, and in respect of which the Government has any
right;
(b) which is brought from any place outside Pakistan or is transported' from or to any
place within Pakistan.
(2) In every case in which such duty is directed to be levied ad val orem, the
Provincial Government may fix by like notification the value on which such duty
shall be assessed."
The perusal of aforesaid section clarifies that the Provincial Government may levy a duty in a
manner as it may declare by Notification in the O fficial Gazette on all Timbers or Forest
produce.
7. In view of above provision of law, it is proved that it is the Provincial Government, who
can collect taxes and duties on the imported timber, therefore, the Forest Department,
Government of Balochista n has acted strictly in accordance with law and no illegality has
been committed while collecting taxes from the petitioners.
9(sic). As far as contention of petitioners' counsel that no one should be charged for tax twice
is concerned, we are in agreeme nt with the counsel, rather it is the mandate of the
Constitution as enumerated under Article 163, whereby double taxation has been prohibited.
According to petitioners, they have already paid taxes and duties to the Customs Department,
therefore, one of t hem is acting illegally by collecting taxes. Since the Customs Department is
not before us, nor collection of taxes by them has been challenged through instant petitions,
therefore, we are not in a position to make any observation to their extent. The Gove rnment
of Balochistan has prepared a policy through notification, whereby manner of places and rate
of taxes and duties on Timber and foreign produce has been explained. The petitioners are
bound to obey the directives of Forest Department and the taxes co llected by them are just
and proper.
10. As regards the amount already deposited by the petitioners, the Honourable Supreme
Court of Pakistan in the remand order has held as under: ---
"Therefore, he agreed for the remand of the case subject to directio ns to the
department (i) to deposit the amount already recovered from the respondent, in a
profit yielding scheme of the National Bank of Pakistan with permission to
respondent to draw the profit on the same till the decision of the petition by the High
Court. In this behalf respondent is ready to furnish an undertaking that whatever the
amount of profit shall be received by the respondent shall be returned to the appellant -
Department, if the same is decided against him."
As has been held above that the F orest Department has the authority to collect taxes,
therefore, the petitioners are directed to release the amount as well as profit/interest thereon
in favour of Forest Department, Government of Balochistan, which is deposited in the
National Bank of Paki stan as per directions of honourable Supreme Court.
In view of what has been stated above, the petitions, being without any substance, are
dismissed with no order as to cost.
M.H./16/Q Petitions dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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