AMIR SADIQ VS DEPUTY DIRECTOR, SALES TAX AND FEDERAL EXCISE, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1584 (2008)

Sales Tax Act (VII of 1990)---

----Ss.33(5)(13), 37-A & 37-B(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner/ accused was alleged to have, committed fraud of billions of rupees causing huge loss to the government exchequer---In adjudication proceedings petitioner filed an appeal before the Tribunal and the Tribunal vide its order remanded the case without vacating the show-cause notice and cancelling the contravention report---Existence of the show-cause notice and the contravention report confirmed that liability of the petitioner due to commission of tax fraud stood alive---Criminal proceedings could proceed side by side---F.I.R. could not be quashed, firstly because accused/petitioner had alternate remedies under Cr.P.C. i.e. to appear before Investigating Officer to prove his innocence; and to approach the competent higher authorities---Other remedies were also available to the accused who claimed to be innocent and who could seek relief without going through the entire length of trial---Constitutional petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Talib Haider Rizvi for Petitioner.

Muhammad Nawaz Cheema for Respondent.

ORDER

ABDUL SHAKOOR PARACHA, J.---Amir Sadiq son of Muhammad Sadiq has filed this constitutional petition seeking quashment of F.I.R. No.1, dated 24-3-2007, registered on the complaint of respondent No.1 Deputy Collector, Sales Tax and Federal Excise, Lahore, for offences under sections 37-B(1), 37-A, 33(5) and 33(13) of the Sales Tax Act, 1990. Further prays that all proceedings taken and order passed on the basis of said F.I.R. be quashed and the money deposited by the petitioner during the pendency of the investigation of the F:I.R. be refunded to him.

2. In pursuance of the notice, Mr. Muhammad Nawaz Cheema, Advocate, has appeared on behalf of the respondent. The learned counsel for the petitioner contends that the petitioner challenged the order of the Collector of Customs, Lahore, wherein it was held that the registered person committed fraud of sales tax recoverable along with additional tax and penalty equal to 50% of the amount involved,, by filing an appeal before the Customs, Federal Excise and Sales Tax Appellate Tribunal, Bench No.II, Lahore and the Tribunal vide order, dated 11-2-2008 set aside the impugned order and remanded the case to the Adjudicating Officer for fresh decision on merits in accordance with law and therefore, the F.I.R. registered on the basis of the order of respondent No.2 under the above sections has lost its legal value and as such allowing the prosecution to continue with the proceedings would be an abuse of process of law.

3. Conversely, the learned counsel for the respondents contends that the case was remanded for adjudicating as the earlier order was passed ex parte' without participation of the petitioner and the Appellate Tribunal by its order remanding the case did not vacate the show-cause notice and the contravention report; that the existence of contravention report and show-cause notice confirms that the liability on the petitioner due to the commission of tax fraud stands alive; that the criminal and civil liabilities proceed side by side hence the F.I.R. cannot be quashed. Further contends that the trial has commenced and the petitioner has the alternative remedy of filing a petition under sections 249-A or 265-K, Cr.P.C, as the case may be, before the trial Court.

4. I have heard the learned for the parties and perused the record. Firstly, this Court cannot quash the F.I.R., because the case reported as Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), the honourable Supreme Court had ruled that the accused have alternate remedies under the Cr.P.C., i.e. to appear before the Investigating Officer to prove their innocence; to approach the competent higher Authorities of the Investigating Officer. There are other remedies as well which are available to the accused person who claims to be innocent and who can seek relief without going through the entire length of trial. The order of the High Court quashing the F.I.R. was set aside by the Honourable Supreme Court in the said case.

5. On the other side, the adjudication proceedings, the petitioner filed an appeal before the Appellate Tribunal, the order of the Collector was set aside and the case remanded for re-adjudication as first ONO was passed ex parte without participation of the petitioner and the Appellate Tribunal vide its order remanded the case without vacating the show-cause notice and cancelling the contravention report. The existence of the show-cause notice and the contravention report confirms that liability of the petitioner due to commission of tax fraud stands alive. It is settled law that civil and criminal proceedings can proceed side by the side. The petitioner is alleged to have committed fraud of billions of the rupees causing huge loss to the Government Exchequer.

6. For the reasons discussed above, this writ petition fails and the same is dismissed.

H.B.T./A-17/LPetition dismissed.