MUHAMMAD ASHRAF VS State, 2014 PTD-KARACHI-HIGH-COURT-SINDH 2140 (2014)

Customs Act (IV of 1969)---

----Ss.19, 32, 156 (1)(10-A)(14)(77)(86)(90) & 192---Sales Tax Act (VII of 1990), Ss. 3 & 33---Income Tax Ordinance (XLIX of 2001), Ss.148, 192, 195, 199 & 200---Criminal Procedure Code (V of 1898), Ss.265-K & 439---Quashing of proceedings---Clearance of consignments without duties and taxes---Proof---Accused was alleged to have been getting his commercial consignments cleared under the garb of consignments of gifts and donations to charitable and non-profit making hospitals---Validity---Accused was not alleged to be importer or beneficiary of alleged consignments and had no nexus whatsoever in the nature, with importer of the consignments---None amongst prosecution witnesses implicated accused in their statements---Investigating officer admitted that there was no evidence against accused nor he had any concern with episode in question---In absence of any material, accused could not be compelled to face proceedings and remain under the Sword of Damocles indefinitely---In absence of any evidence, proceedings pending against accused would amount to abuse of process of law as well as Court---High Court, in exercise of revisional jurisdiction, set aside the order passed by Trial Court and quashed the proceedings pending against accused---Revision was allowed in circumstances.

Mian Abdul Ghaffar for Applicant.

Waleed Ansari, D.A.G. for the State.

Ashiq Ali Anwar Rana, Advocate/Special Prosecutor.

ORDER

AHMED ALI M. SHAIKH, J.---Through these proceedings, applicant-Muhammad Ashraf seeks quashment of proceedings culminating from F.I.R. No.MCC/Misc/PaCCs/GR-II/1847-09, under sections 19, 32 and 192 of Customs Act, 1969, section 3, punishable under section 33 of Sales Tax Act, 1990 and sections 148,192,195,199 and 200 of the Income Tax Ordinance, 2001, punishable under clauses 1, 10-A, 14,77,86 and 90 of section 156(1) of Customs Act, 1969, registered at Model Collectorate of Customs of PaCCS. Earlier, application under section 265-K, Cr.P.C., filed by applicant before Special Judge (Customs and Taxation), Karachi, in Case No.97/2011, for quashment of proceedings was dismissed by the learned Judge videorder dated 10-10-2012, ("impugned order"), hence the instant application.

2.The prosecution case in nutshell, as enunciated in F.I.R., are that they received credible information that some unscrupulous importers are clearing consignments of commercial nature, without payment of leviable duties and taxes, under the guise of the consignments of gifts and donations to charitable and non-profit making hospitals and institutions vide PCT 9913 of the First Schedule to the Customs Act, 1969.

3.Accordingly, a thorough probe into the matter was initiated and the relevant computerized data of all such consignments imported and cleared through the Model Customs Collectorate of PaCCS, Karachi, was scrutinized. It revealed that a consignment comprising of 500 cartons declared as Blankets and involving the above-stated fiscal fraud, was consigned from the Port of Ningbo, China in Container Nos.TRLU5682596 and WHLU5124284 vide Bill of Lading No.0318546619 to Messrs Bismillah Logistics, Room No.913, 9th Floor, Jilani Tower, Main Tower, M.A. Jinnah Road, Karachi. When Messrs Bismillah Logistics was enquired, they stated that they arranged shipment of the said consignment from China to Pakistan for seeking clearance thereof as desired by Messrs Bed and Blanket (Pvt.) Ltd., 32-F, Empress Road, Lahore. Scrutiny of the record further revealed that the consignee as per Master Bill of Lading requested Messrs Riazeda (Pvt.) Limited that the ultimate consignee in the Import General Manifest may be declared as Messrs Rescue Human Rights Association International instead of Messrs Bismillah Logistics. The Bill of Lading reflects that the description therein has been substituted as blankets for donation.

4.Afterwards, Messrs Rescue Human Rights Association International, Karachi, filed Goods Declaration claiming to be a registered charitable and non-profit making institution and got the consignment released without payment of leviable duty and taxes. In order to confirm the authenticity of the donors and whether the imported goods were bona fide gifts and donations or not, information was sought from the Commercial Counsellor, Embassy of Pakistan at China, who confirmed that the mission tried to contact the exporters in China through telephone numbers available on the invoice but the numbers were fake/untraceable. On further investigation, the Embassy of Pakistan confirmed that the goods shipped vide Container No.UACU5157047 was a commercial consignment whereas the aforesaid container was cleared by the said importers free from duty and taxes by mis-declaring the same as "Donations" and thus caused loss to the Government exchequer to the tune of Rs.9,54,229. The Embassy of Pakistan at China further confirmed that consignments meant for Donations or Charity follow a separate clearance procedure whereas the subject consignment was cleared through regular procedure, thus, such the above F.I.R. was registered.

5.Learned counsel for applicant contended that the applicant is innocent and has been falsely implicated by the prosecution in the alleged offence; that the applicant is neither owner nor director or employee or representative, of the said NGO; that the duty and taxes, if any, payable to the government, can be recovered from the importer; that in the above case challan has already been submitted by the prosecution but no iota of evidence connecting the applicant with the commission of alleged crime is found; that the impugned order clearly reflects that the learned Special Prosecutor for FBR conceded to the application of applicant filed before trial Court under section 265-K, Cr.P.C. but the learned trial Court passed the impugned order in a haste manner; that the impugned order passed by learned trial Court is not sustainable in the eyes of law as nothing incriminating against the applicant was brought on record by the prosecution; that the name of applicant was included on the statement of representative of Messrs Bismillah Logistics but neither his statement was recorded under section 161, Cr.P.C. nor he was cited as witness as is evident in column No.8 of the challan; that the applicant was neither granted any exemption nor he imported any goods nor filed any document nor made any statement nor any declaration and nor took any step in connection with the import of goods in question and as such prolonging proceedings against applicant shall definitely be abuse of process of law. Helastlycontendedthattheimpugnedorderdated10-10-2012, is liable to be set-aside and sought acquittal of applicant followed by quashment of proceedings culminating from aforementioned F.I.R.

6.Learned Special Prosecutor, FBR and learned DAG supported the impugned order dated 10-10-2012 but frankly conceded that till date no iota of evidence is collected against the applicant. Even, Hamoodur Rehman, IO/Appraising Officer, who is present in person, on a query to Court, replied that nothing incriminating is found to connect the applicant with the commission of alleged crime.

7.Heard learned counsel for applicant, Special Prosecutor, FBR, D.A.G. and I.O. and with their assistance have gone through the material available on record. It is not disputed by either counsel that during course of investigation prosecution could not collect any material connecting the applicant with the commission of offence. Besides, it is not alleged that applicant was importer or beneficiary of the alleged consignment. The consignment was imported in the name of Messrs Rescue Human Rights Association International, with whom the applicant has no nexus whatsoever in nature. Even none amongst the prosecution witnesses has implicated the present applicant in their statements. The very important aspect of this case is that I.O./Appraising Officer Hamoodur Rehman, who was present in Court at the time of hearing, categorically stated that there is no iota of evidence against the present applicant nor he had any concern with the aforesaid episode. In absenceofanymaterialtheapplicantcannotbecompelledtofacethe proceedings and remain under the Sword of Damocles indefinitely. As stated above, in absence of any evidence the proceedings pending against the applicant would amount abuse of process of law as well as Court.

8.For the foregoing reasons, this Special Criminal Revision ApplicationNo. 03/2012wasconvertedbymyshortorderdated16-4-2014 into Cr. Misc. Application, impugned order dated 10-10-2012, passed by learned Special Judge (Customs and Taxation), Karachi, was set-aside and proceedings culminating from Crime No.MCC/ Misc/PaCCs/GR-II/1847-09, under sections 19, 32 and 192 of Customs Act, 1969, section 3, punishable under section 33 of Sales Tax Act,1990 and sections 148, 192, 195, 199 and 200 of the Income Tax Ordinance, 2001, punishable under clauses 1, 10-A, 14, 77, 86 and 90 of section 156(1) of Customs Act, 1969, pending before concerned Court, were quashed.

MH/M-102/SindhProceedings quashed.