MUHAMMAD HASHIM VS State, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1659 (2008)

Customs Act (IV of 1969)---

----Ss. 156(1)(14)(82) & 185-F---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Special criminal revision application---Deputy Attorney General stated that for the same offence, the case was challaned at three 'forums; Customs Court; Banking Court; and Commercial Court and that the right forum was the Commercial Court---Validity---No government revenue was involved in the case---Applicant had not cheated the government or had caused any loss to the government---Offence allegedly committed by applicant, had caused loss to the reputation of Pakistan business community for which he was challenged at a proper forum which would dispose of the matter on merits---Case relied upon by Deputy Attorney General, was against same applicant who was challaned in Banking Court for the same offence and the High Court had quashed the proceedings pending in the Banking Court---In view of the finding given by High Court against the same applicant in respect of same incident, proceedings pending before the Customs Court, were quashed-Proceedings in Commercial Court would continue and would be disposed of on merits.

Muhammad Hashim v. Presiding Officer Special Banking Court (Offence in Banks), Sindh at Karachi and 7 others 2006 PCr.LJ 1886 ref.

Syed Muhammad Kazim for Petitioner.

Imran Ahmed, DAG along with Mr. Khalid Nawaz Khan Marwat, Federal Counsel.

ORDER

KHAWAJA NAVEED AHMED, J.---Syed Muhammad Kazim, Advocate is present on behalf of the applicant Muhammad Hashim, who has been challaned in case F.I.R. No. 17 of 2002 under sections 156(1)(14)(82) Customs Act, 1969, P.S. F.I.A. C.C.C., Karachi.

Brief facts of the case are that Messrs Abdullah Ali Al-Anjoor Trading and Importing Republic of Yemen, Sana's had sent a complain to Embassy of Pakistan at Sana, Yemen through Ministry of Interior and FIA/Head Quarters, Islamabad, Enquiry No.13 of 2002 of FIA/Corporation Crime Circle Karachi was held by FIA/Corporate Crime Circle Karachi and subsequently F.I.R. was lodged against the accused for causing loss to the complainant party to the tune of US$21, 825.

The learned DAG states that for the same offence the case was challaned at three forums viz. (1) Customs Court, (2) Banking Court and (3) Commercial Court. The learned DAG states that the right forum was the Commercial Court. No government revenue is involved in this case. The applicant has not cheated the government or has caused any loss to the government. The offence allegedly committed by him has caused loss to the reputation of Pakistan business community for which he is challaned at a proper forum who will dispose of the matter on merits. The learned DAG has relied upon a case reported in 2006 PCr.LJ page 1886 Muhammad Hashim v. Presiding Officer, Special Banking Court (Offence in Banks), Sindh at Karachi and 7 others. This case is against same applicant Muhammad Hashim, who was challaned in Banking Court for the same offence and the Division Bench of this Court has quashed the proceedings pending in the Banking Court. The Division Bench while quashing the proceedings in the Banking Court had observed as under: --

"After going through the law, referred to above, it appears that the Government has desired that malpractice in the export to be taken separately through a separate forum by a Technical Tribunal constituted in terms of section 5-A(2) of the Ordinance V of 1980 so they should be in a better position to realize the allegations and the explanation which may be submitted by the person against whom allegations have been levelled. It further seems to be intention of the Legislature that since in Commercial transaction money/goods remained stuck up, therefore, summary procedure has been provided through the Commercial Courts. Indeed the banks are involved in most of the foreign commercial transaction and export but every malpractice or breach of contract by the importer or exporter does not bring cause within the meaning of Special Court of Banking or the other Banking Court and specially in the circumstances when there is a special forum to deal with specific situation then except that forum no other forum can take the cognizance until and unless the causes are independent to the extent and or provided for the action by two separate forums.

After perusal of the authorities referred to by Ms. Sofia Saeed learned Standing Counsel we found that both these authorities are not relevant to the matter in hand as in both these cases Bank was involved in either way while case in hand does not reflect anything which involved the Bank while the authorities referred to by the learned counsel for the appellant/petitioner is on the point. The gist of these authorities is that when the matter is between the two private parties without any involvement of the Bank then it cannot be tried by the Banking Court. We are not convinced with the contentions of Ms. Sofia Saeed that the Banking Court can assume the jurisdiction as certain transaction were carried out through Bank or that the admission of guilt on the part of any contesting party, confers, the jurisdiction on a Court which was never vested in it by statute. Since the offence, alleged in both the F.I.Rs., is not in respect of Banks nor connected or incidental to it, hence the Special Court has wrongly assumed the jurisdiction in the F.I.Rs. lodged on the complaint of D.G. Export Promotion Bureau. In the circumstances the order of the Banking Court, dated 20-6-2005 subject-matter in the Criminal Appeal No.228 of 2006 cannot be sustained and is set aside, the appeal is allowed. The concerned authority may seek its remedy available in the relevant forum while the proceedings in F.I.R. No.17 of 2002, which have been initiated on the basis of the above sort of allegations and is subject-matter of C.P. No.D-229 of 2006 are quashed and petition stands allowed with the observation that the concerned authorities may seek its remedy before proper forum. Consequent to this order the accused, if he is in custody may be released in the matters pertaining to the F.I.R., Nos. 10 of 2003 and 17 of 2002 of F.I.A./C.C.C. (Karachi), if not required in any other case."

In view of the finding given by this Court against the same applicant in respect of same incident, the proceedings pending before the Customs Court are hereby quashed. However, the proceedings in Commercial Court will continue and shall be disposed of on merits.

H.B.T./M-98/KProceeding quashed.