KHURRAM FAROOQ SIDDIQUI VS DEPARTMENT OF CUSTOMS AND EXCISE, COLLECTORATE OF CUSTOMS (EXPORT) and another, 2009 PTD-KARACHI-HIGH-COURT-SINDH 992 (2009)

Customs Act (IV of 1969)---

----S.156(1), clauses (14), (14-A), (16), (17), (77), (84), Ss.32, 32-A, 35, 39, 131, 131-A & 178---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Interim challan in the case was submitted after three years of lodging F.I.Rs.---No provision being in the law for submission of interim challan after three years, it was to be deemed as final challan, which carried no material for connecting the petitioners with the commission of said crimes---Inordinate delay of over three years in the investigation of crimes and submission of interim challan without collecting any evidence against the petitioners was indicative of fact that pendency of such proceedings in the Customs Court would be nothing but an abuse of the process of law which was to be prevented in order to secure the ends of justice---No possibility/likelihood of conviction of the petitioners existed in the two crimes in case the proceedings emanating from the crimes which related to an attempt to defraud the national exchequer by fraudulently claiming the inadmissible duty draw back, were allowed to continue---Proceedings were ordered to be quashed.

Mian Munir Ahmed v. The State 1985 SCMR 257; State through Advocate General N.-W.F.P. and others v. Gulzar Muhammad and others 1998 SCMR 873 and Ch. Perviaz Ellahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 1995 MLD 615 ref.

Kumail Ahmed Shirazee for Petitioner.

Raja Muhammad Iqbal for Respondent No.1.

Muhammad Ashraf Khan Mughal, D.A.G. for Federation of Pakistan.

Date of hearing: 13th February, 2009.

JUDGMENT

ANWAR ZAHEER JAMALI, C.J.---By our short order, dated 13-2-2009, proceedings arising out of Crimes No.S.I./MISC/34/ 2005/Exp-PQ, dated 15-9-2005 and S.I./MISC/I62/2005/Exp-PQ, dated 26-8-2005, which related to the allegations of commission of offences under sections 32, 32A, 35, 39, 131, 131A and 178 of the Customs Act, 1969,punishable under clauses 14, 14A, 16, 17, 77 & 84

of section 156(1) of the Customs Act, 1969, were quashed. As both these petitions contain identical set of facts and same questions of law, therefore, common reasons are recorded as under:--

2. In C.P. No.D-1243 of 2008, the facts in a nutshell are that on 5-6-2008 petitioner Khurram Farooq Siddiqui has brought this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, for seeking quashment of F.I.R. S.I./MISC/34/2005/Exp-PQ, dated 15-9.2005, which reveals that on credible information received by the respondent No.1 that Messrs Liberant International, Karachi, with active connivance of their associates, are engaged in the fake and dubious export of 65% Polyester and 35% cotton quilt sets and bed sheets have claimed fraudulently duty drawback and Sales Tax refund in the sum of Rs.6,37,349 as regards the goods which were never shipped to the consignee. F.I.R. of such incident was registered on 15-9-2005, but till filing of this petition i.e. almost three years, no investigation of such crime was conducted, which compelled the petitioner for invoking jurisdiction of this Court for seeking quashment of the F.I.R. as he was being harassed by the staff of the respondent No.1 on the basis of such F.I.R.

3. The facts narrated in C.P. No.D-1244/2008, are that a F.I.R. bearing SI/MISC/162/2005/Exp-PQ, dated 26-8-2005 was registered against petitioner Arshad Farooq Siddiqui on the basis of a letter, dated 19-8-2005 received in the Export Collectorate of Sales Tax and Federal Excise (Enforcement), Sales Tax House-II, Karachi for verification of authenticity of Sales Tax Registration No.17-12-5111-00446; NTN No.1206707, and five different bills of export of Messrs Zunera International, who managed to obtain duty drawback fraudulently through the said forged shipping bills, though the triplicate copies of such bills of export were not available in MCD Export Section of Port Qasim and it was found that such bills were manifested at PRAL counter of Port Qasim on the mentioned dates, but neither container/goods were passed in against the said bills nor those bills were registered for examination.

4. Notices of these petitions were issued to respondents and DAG also calling upon them to submit their parawise comments, which they failed to submit till 10th October, 2008, resultantly I/O of the crimes was summoned in Court along with relevant record. On 29-10-2008 Muhammad Naseer I/O of the Crimes appeared in Court and candidly stated that the investigation of the crimes has not yet been completed by him. In such circumstances, he was afforded one more opportunity to do the needful within two weeks time. On 18-11-2008 again, learned counsel for the respondent No.1, who was present in Court along with Murtaza Yar Khan Appraiser and Rana Naseer Examiner, informed the Court that investigation of these crimes has still not been completed and therefore, challan could not been submitted. In such circumstances, again the respondents were directed to submit their parawise comments within one week. However, on 1-12-2008, parawise comments on behalf of respondent No.1 were submitted by Deputy Collector (Law-Exports). accompanied with the copies of F.I.R., 161, Cr.P.C. statement of I/O and interim challan, dated 29-11-2008, submitted before Special Judge (Customs and Taxation), Karachi showing present petitioners as two of the accused in Crimes Nos. SI/Misc/34/2005/Exp-PQ, dated 15-9-2005 and Sl/MISC/162/2005/Exp-PQ, dated 26-8-2005. However, no plausible explanation was offered in the parawise comments or interim challan for such inordinate delay of more than three years in investigation of crimes, which was still incomplete. Besides no other material was brought on record to show that prima facie any evidence was collected against the petitioners to justify their involvement in the alleged crimes, which formed basis of lodging of such F.I.Rs.

5. We heard, Mr. Kurnail Ahmed Shirazee learned counsel fin the petitioners, Mr. Raja Mohammad Iqbal Advocate for respondent No.1 Mr. Mohammad Ashraf Khan Mughal D.A.G. for Federation of Pakistan and perused the whole case record. Submissions of Mr. Kumail Ahmed Shirazee for seeking quashment of proceedings in the two crimes are that, firstly there is no iota of evidence available with the prosecution to show the involvement of the petitioners in the commission of alleged crimes, therefore, its pendency against them is nothing but an abuse of the process of law; secondly there is inordinate delay of over three years in the investigation, which is still incomplete, thus sufficient to conclude that there is no possibility of conviction of the petitioners in these crimes even if, challaned before the concerned Court. The last submission of the learned counsel was that the submission of interim challan before the Customs Court is nothing but repetition of the contents of the F.I.R. with no other material to connect the petitioners with the commission of crimes or to show that prima facie there was any evidence against them to prove their guilt.

6. On the other hand Mr. Raja Muhammad Iqbal has strongly opposed the relief claimed by the petitioners relating to quashment of proceedings in the crimes. However, he was unable to give any satisfactory reply on behalf of respondent No.1 for non-completion of investigation of the crimes and non-submission of challan for over three years. He also did not dispute that submission of interim challans by the I/O of the crimes more than six months after filing of these petitions carry no other material against the petitioners except repetition of the contents of the F.I.R.

7. We have carefully considered the submissions placed before us by the parties counsel and perused the material placed on record. Admittedly, the petitioners have invoked the jurisdiction of this Court for seeking quashment of F.I.Rs. Nos. SI/MISC/34/2005/Exp-PQ, dated 15-9-2005 and SI/MISC/162/2005/Exp-PQ, dated 26-8-2005, on 5-6-2008 i.e. after more than two and half years to the lodging of these F.I.Rs., which related to the commission of offences by the petitioners in the year, 2005, at a stage when no interim challan was submitted in the two crimes. The fact of failure of respondent No.1 and the I/O of the crimes to conduct proper investigation of the crimes for such a long period is significant to see whether lodging of such F.I.Rs. has some basis or the same were lodged merely to pressurize the petitioners for achieving some other results, best known to the complainants. Even after filing of these petitions, respondent No.1 and the I/O took another period of more than six moths in submitting "interim challan", again carrying with it no other material in the form of documents or oral evidence to show that prima facie petitioners are guilty of the offence for which they have been charged. There is no provision in law for submission of interim challan after three years, therefore, it is to be deemed as final challan, which carry no material for connecting the petitioners with the commission of said crimes. In our opinion inordinate delay of over three years in the investigation of crimes; submission of interim challans without collecting any evidence against the petitioners, is indicative of fact that the pendency of such proceedings in the Customs Court will be nothing but an abuse of the process of law, which is to be prevented in order to secure the ends of justice. Moreover, in the facts and circumstances of the case, there seems to be no possibility/likelihood of conviction of the petitioners in the two crimes, in case proceedings emanating from crime No.SI/MISC/34/2005/Exp-PQ, dated 15-9-2005 and Crime No. SI/MISC/162/2005/Exp-PQ, dated 26-8-2005, which relate to an attempt to defraud the national exchequer by fraudulently claiming the inadmissible duty drawback and sales tax refund, are allowed to continue. If any case-law as needed to fortify this view, reference may be made to the following judgments of the Superior Courts:--

(1) Mian Munir Ahmed v. The State (1985 SCMR 257).

(2) State through Advocate-General, N.-W.F.P. and others v. Gulzar Muhammad and others (1998 SCMR 873).

(3) Ch. Perviaz Ellahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others (1995 MLD 615).

8. Mindful of the fact that at` the time of institution of these petitions, quashment of the two F.I.Rs. was sought by the petitioners, but during its pendency on 29-11-2008, interim challans have been submitted, the relief claimed is required to be amended as per changed circumstances, we had therefore, treated these petitions as petitions for quashment of proceedings under section 561-A, Cr.P.C. and accordingly, ordered quashment of the proceedings arising out of Crime No. SI/MISC/34/2005/Exp-PQ, dated 15-9-2005 and SI/MISC/162/2005/ Exp-PQ, dated 26-8-2005.

H.B.T./K-8/KProceeding quashed.