IN THE HIGH COURT OF SINDH, KARACHI
Spl. Crl. Rev. Appln.
No. 47 of 2018
Muhammad Farooq
...
..
.
.Appellant
Versus
The
State
....Respondent
Date
of Hearing & Order:- 29.08.2018
Mrs. Dil
Khurram Shaheen, advocate
for the applicant
Mr. Ashiq
Ali Anwer Rana, advocate
for the respondent
O R D E R
FAHIM AHMED
SIDDIQUI, J: Through instant
special criminal revision application, the applicant has challenged the order
dated 10.01.2018 passed by learned Special Judge (Customs & Taxation)
Karachi whereby an application under Section 265-K Cr.P.C.,
for pre-trial/during trial acquittal of applicant was declined.
2. The
factual matrix of the case is that some consignment was imported which was
actually shipped by M/s. AMI, Middle East, LLC, and port of loading was Dubai
UAE but accused persons fraudulently manipulated the shippers name as Ziang Niong Corporation and port
of loading as Ningbo China. Obviously the reason of such manipulation was to
evade the import duty which is lesser in case of import from China.
3. Learned
counsel for the applicant submits that present applicant is neither importer
nor exporter of the consignment regarding which instant case has been
registered. She submits that one of co-accused Muhammad Shakeel
has pleaded guilty and has already paid fine. She submits that main accused has
pleaded guilty as such the applicant is entitled for release/acquittal under
Section 265-K Cr.P.C.
4. Learned
counsel for the respondent opposes instant revision application and submits
that one of co-accused has pleaded guilty as such strong presumption is
attached as per Article 47 of Qanun-e-Shahadat that applicant is also an offender. He submits
that manipulation in the record is established and all evidence in the shape of
documents is available with prosecution, as such the prosecution should be
given an opportunity to prove their case. He submits that so far no witness has
been examined and plethora of documentary evidence is available with the
prosecution.
5. I have
heard the arguments advanced and have gone through the relevant record. It is
an admitted position that so far no witness has been examined and serious
allegations of evading of custom duty and taxes are levelled against the
applicant. In the instant matter, one of co-accused has already pleaded guilty.
The evidence is available in the shape of documents including cyber record. I
would like to reproduce Paragraph-25 of final report herein below:-
25. On investigation he
refused to answer and to provide record of the transactions which constitutes
an offence punishable under clause 77(ii) & (iii) of Section 156(1) of the
Customs Act, 1969. Investigation into the matter reflected that he is the actual
owner/importer of the goods and rest of the accused of the case facilitated him
to import on other title for clearance of the goods. In fact emails record
retrieved from the computers of the freight forwarder M/s. AMI Pakistan clearly
indicate that accused Muhammad Farooq and his
ex-employee Saud were involved in this fraudulent import through switched bill
of lading by providing instructions regarding change in shipper and port of
loading etc. The whole communication between Farooq/Saud
and staff of M/s. AMI Pakistan are available in the shape of documents i.e.,
email record establishing that bill of lading was switched on the
instructions.
6. From
the above Paragraph of final report, it appears that sufficient evidence is
collected by the prosecution during investigation and the same requires desk of
trial to establish either guilt or innocence of applicant.
7. In
such a situation, it cannot be said that the charge against the applicant will
be baseless, hence instant special criminal revision
application is dismissed.
J U D G E