IN THE HIGH COURT OF SINDH, KARACHI

Special Cr. Misc. Application No. 186 of 2016

Mumtazuddin s/o Moinuddin.……………………………..….……...Applicant

Versus

The State.…..........................................................................…Respondent

Khawaja Shams-ul-Islam, advocate along-with

M/S Shehzad Mehmood, Taj Muhammad and

Khalid Iqbal, advocates for applicant

Mr. Muhammad Javed K.K., Asst. Attorney General

along-with Inspector Siraj Panhwar, FIA.

Date of Short Order : 11.09.2018

J U D G M E N T

Fahim Ahmed Siddiqui, J- The appellant through the instant special criminal application has sought quashment / during trial acquittal in a criminal case pending before the learned Court of Special Judge Customs and Anti-Smuggling being Case No. 186 of 2016 initiated on the basis of FIR No. 13/2014 dated 21-08-2014. It is not a direct application for quashment but the applicant has earlier moved an application under Section 265-K CrPC, which was dismissed by the trial Court vide order dated 23-12-2015, hence the instant application was filed.

2. The prosecution case as decipher in the FIR is reproduced as under:

"Today information was received to the effect that the pax namely Mumtaz-ud-Din S/O Moin-ud-Din, holder of Pakistani Passport No. KH-185216 dated 22-2-2011 issued at Brussels and Belgium Passport No. E 1431737 dated 3-3-2011 issued at Schaerbeek involved in arms smuggling will arrive on Turkish Airline Flight No. DK-708 dated 21-8-2014 at JIAP Karachi.

As such the pax was intercepted. On tactful questioning, he disclosed that he has been bringing such consignments of arms in his personal baggage. He added that his bag will be available on the belt. He himself picked up his bag and brought it to Incharge Office where it was checked and taken into FIA custody. The bag contained 25 lower parts of Glock is still and 97 Magazines of Glock pistol. All the items recovered from him were taken into FIA possession under proper memo. On being asked he failed to produce a lawful authority to possess these parts of pistol. He added that he had brought for such consignments previously on different occasions.

Hence he has been detained and being referred to you along with relevant documents and matter of further verification and necessary action at your end, please.

(MUHAMMAD SAEED)

INSPECTOR/INCHARGE SHIFT-‘B’

During preliminary interrogation, accused Mumtaz-ud-Din disclosed that he used to bring above contraband items for Col. Hafeez of NADRA against which accused received payments through cheques.

The above facts constitute the commission of offence punishable under Section 2 (s), 156 (1) (8) of Customs Act, 1969 and in contravention of import policy 2013 regarding import of contraband items against the accused persons namely Mumtaz-ud-Din S/O Moin-ud-Din, holder of Pakistani Passport No. KH-185216 dated 22-2-2011 issued at Brussels and Belgium Passport No. E 1431737 dated 3-3-2011 and others. Investigation of the case is entrusted to AD Rana Ghulam Shabbir, FIA, CCK.

SIRAJ PANHWAR

INSPECTOR FIA

CCC, KARACHI"

3. The applicant was arrested on the same day i.e. 21-08-2014. After initial investigation, an interim charge-sheet bearing No. 22/2014 was submitted before the learned trial Court on 4-9-2014. The applicant was granted bail by this Court on 10-11-2014. The final charge-sheet was submitted before the trial Court on 29-10-2015 in which along with the applicant, the names of Jawad Sami S/O Muhammad Sami and Col (Rtd) Muhammad Hafeezullah Khan S/O Muhammad Zakaullah, Director NADRA and others were shown as absconders. In the charge-sheets, the allegations against the applicant were that he used to bring contraband items and deliver the same to absconding accused Col (Rtd.) Muhammad Hafeezullah, who paid for those contraband items from his bank account, and certain cheques of different amounts were also mentioned in the charge-sheets.

4. I have heard the arguments advanced and have gone through the relevant record. I am also enlightened from the case laws cited by either side.

5. After going through the entire prosecution case in chronological order, Mr Shamsul Islam, the learned counsel for the applicant submits that FIA has no jurisdiction in respect of offences pertaining to Customs Act without a specific authorisation by the Federal Government. He submits that one Pervaiz Alam is an important prosecution witness and he is the person behind all these things happened with the applicant. According to him, the said Pervaiz Alam is ex-brother-in-law of the applicant and because of his ill habits and wrongdoings, he is expelled out from the family of the applicant and now he is regularly teasing and troubling the applicant and his family. He submits that some of the FIA officials including the investigating officer available before this Court are playing in the hands of Pervaiz Alam and they even involved the nephew of applicant namely Jawwad Sami, who is a British national and residing in UK since last decades. According to him, the prosecution case is baseless and there is no evidence on the record that can be produced in the court as admissible piece of evidence. He submits that in the entire prosecution case, which pertains to the Customs Act, no customs officer is named as witness. He submits that the FIA officials are well aware that their act is illegal but only to satisfy the grudge of one of their cherished informer i.e. Pervaiz Alam, they done all these illegalities with intention to cause mental and physical agony to the entire family of the applicant.

6. Regarding the merits of the case, the contention of the learned counsel for the applicant is that the applicant has done nothing wrong. He submits that there was no criminal intent as if the applicant had some intention to smuggle then he had to conceal those parts of Glock pistols but he did not do so. According to him, the recovered parts of Glock pistols were not concealed and they were openly placed in his luggage, which indicates that there was no intention of smuggling. According to him, recovery of parts of Glock pistols will not fetch any punishment as per the provision of the Customs Act. He submits that the parts of the pistol individually cannot fulfil the definition of arms, as such recovery of parts does not mean that arms or ammunition was recovered. According to him, the FIA officials did not allow him to contact with customs authorities for disclosure of the goods, he was carrying as he was arrested by the FIA officials from inside of the plane. He submits that in case of disclosure and payment of duties, a dutiable item will not be treated as smuggled goods. He submits that as per the provision under Section 185-A, the Court of Special Judge (Customs and Taxation) can take cognizance on a complaint of a Customs Officer or any other Officer entrusted with the powers of Customs Officer. According to him, the complainant and investigation officer of the instant case are not entrusted with such powers, as such their action is illegal. He points out that as per Section 161 of the Customs Act, only the officers of Customs are enjoying the power of arrest in respect of any offence punishable under the said Act. He further submits that Jinnah International Airport (JIAP), Karachi is a notified place under Section 9 of the Customs Act, as such as per the provision under Section 6 (2), the FIA has no authority to interfere any function of the officers of Customs within the boundary of JIAP Karachi. He submits that no customs officer is the prosecution witness in the instant matter and all the prosecution witnesses belong to FIA and none of them were entrusted with the powers of customs officer by the Federal Government. According to him, the power to an officer of the Federal Government can only be entrusted under ‘Gazette Notification’ and the Hon’ble Supreme Court has already defined that Federal Government means 'the Federal Cabinet'. He points out that the charge framed by the trial Court is defective as Section 2 (s) is missing from the charge, which is an important section, as it provides a definition of smuggling. He submits that the highhandedness of FIA officials involved in this case is clear from the fact that they violated the mandatory provision of Section 162 of the Customs Act and without compliance of this statutory requirements, the entire search and seizure is illegal. He submits that after the charge, the trial Court has examined only three witnesses so far from the list of teeming numbers of witnesses. According to him, the weakness of prosecution case is apparent from the fact that the final charge-sheet was submitted after 14 months. He also points out that no proceeding against the alleged absconding accused u/s 87 & 88 was initiated; therefore, he cannot be considered as proclaimed offender. According to him, FIA has to perform within its domain and under the law; as FIA is not a supra-constitutional body. After drawing attention towards some portions of depositions recorded by the trial Court, he submits that by just looking at the depositions of the prosecution witnesses, it can be said that there is no likelihood of punishment in the instant case. In support of his contentions, he relies upon PLD 1986 Supreme Court 192, PTCL 2011 CL 423, 2005 PTD 23, 1991 PCrLJ 644, PLD 1995 Supreme Court 34, PTCL 1993 CL. 722, 1980 PCrLJ 663, PTCL 1992 CL. 155, PTCL 1989 CL. 65, PTCL 1990 CL. 109, 1977 PCrLJ 346, 1980 PCrLJ 116, SBLR 2011 Sindh 1565, 2011 MLD 1075.

7. Mr. Muhammad Javed K.K, Asst AG for the state, while opposing the instant application, fastidiously replied to the contentions raised by the learned counsel for the applicant regarding the very criminal case pending before the trial Court. According to him, the impugned order is in accordance with law and the same does not require any interference by this forum. He submits that the modus operandi of the applicant was that in every of his visit to the country (Pakistan), he brought different parts of Glock pistols, which were subsequently assembled and sold out in the market. He submits that the co-accused are very much involved with the applicant in the illegal business. According to him, bringing arms and ammunition or their parts in the country is illegal, as such the FIA has full jurisdiction to check and control any such offence. He submits that it is not a case of quashment, as an application for pending trial acquittal has already been declined by the learned trial Court. According to him, while dealing with the bail application of the applicant by this Court, a direction was given for early disposal and it will be appropriate that the trial Court be given a chance to conclude the trial. He further submits that so far three prosecution witnesses have been examined, thereafter the applicant succeeded in getting stayed the proceedings under the interim order of this Court otherwise the case would be concluded. He submits that the prosecution is ready to proceed with the case if some other appropriate directions be issued to the learned trial Court. In support of his contentions, he relies upon 2005 SCMR 1540, 1999 MLD 1632, 2011 SCMR 1957, PLD 2013 Supreme Court 401, PLD 1997 Supreme Court 275, 2002 SCMR 634, PLD 2002 Supreme Court 298.

8. I have heard the arguments advanced and have gone through the material placed before me or presented during the course of arguments. I get enlightened myself by going through the reported cases cited by the either side during the course of arguments. In the instant matter, certain aspects require a specific consideration. It is the prosecution case that certain parts of Glock pistols were recovered from the applicant in considerable quantity and the recovery was affected at JIAP, Karachi by FIA officials.

9. According to FIA officials, the recovered articles are contraband items and on a tipoff, these articles were recovered. There is no question about it that Jinnah International Airport (JIAP) is a notified place as per the provision under Section 9 of the Customs Act, 1969. It is worth mentioning that for a notified place, the matter of smuggling is required to be checked by customs officials only or any other provincial or federal government officer, who has been notified by the federal government to function as 'Officer of Customs'. It is also noteworthy that even if any other officer is authorised by federal government to function as customs officer, he cannot interfere in the function of a regular customs officer at a notified place. In this respect, I would like to reproduce Section 9 of the Customs Act, 1969, as under:

6. Entrustment of functions of customs officers to certain other officers. - (1) The Board may, by notification in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and Scheduled Banks:

Provided that where any officer in performance of his functions under this section commits any offence under this Act, such officer shall, in addition to any other penalty which may be imposed under any other law for the time being in force, be liable to such punishment as is specified in sub-section (1) of section 156 for the offence committed by him.

(2) No officer entrusted with any functions of any officer of customs under sub-section (1) shall interfere in any manner in the performance or discharge of any duty by an officer of customs in places notified under section 9.”

10. In the instant case, nothing is available on record which indicates that the FIA officers, who conducted the raid at the airport and recovered the alleged contraband articles, were actually authorised for such function by the federal government (FBR) through special notification. During the course of arguments, in response to a query, Mr. Muhammad Javed K.K., Asst. Attorney General after consulting Inspector Siraj Panhwar, FIA (Investigation Officer) replied that there was no such notification of authorization issued in his favour or any other prosecution witness to act as ‘Customs Officer’. It is worth noting that without issuing a notification in ‘Official Gazette’, none of the raiding party is authorised to take action in respect of any offence punishable under Customs Act, 1969.

11. The FIA is mainly an investigating agency and in respect of investigation, the competency of FIA can be used in respect of offences mentioned within the schedule of FIA. No doubt, FIA is also authorised to act as the prosecuting agency but every such act of FIA should be done as per the provision of law. From the above provision of law, it is quite clear that FIA cannot interfere in the functions of customs officers at a notified place like Karachi Airport. If any beforehand information is received by the FIA officials, it would be appropriate for them to communicate the same to the concerned quarters of customs department and if it is desirable they may accompany with the customs officials but not to do such a raid of recovery, as it was done in the present case. No doubt, the presence of FIA at JIAP is necessary in respect of matters pertaining to immigration or allied issues but merely their presence, at an international airport, does not mean that they are authorised to take action in respect of import, export and smuggling, which comes under the domain of customs department especially at a notified place like Karachi Airport. The matters related to customs are of extremely technical in nature, which cannot be assigned to uninitiated persons as they do not know when an action of bringing something or taking out of Pakistan falls under the category of a smuggling; and if such a goods is declared by the person carrying them than how a duty, if chargeable, will be calculated and under what circumstances the same may be confiscated. In my humble view, the act of FIA of officials, without having an authority to act as customs officers, is not only improper but the same is illegal and amounts to transgressing their limits and it is highhandedness.

12. Now come to the question of cognizance. The law is very much clear that in respect of an offence falling under penal sections of Customs Act as well as the Prevention of Smuggling Act, only Special Judges are authorised to take cognizance. In this respect I would like to reproduce Section 185-A of Customs Act, which reads as:

185A. Cognizance of offences by Special Judges.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, a Special Judge may, within the limits of his jurisdiction, take cognizance of any offence punishable under this Act-

(a) upon a report in writing made by an officer of customs or by any other officer especially authorized in this behalf by the Federal Government; or

(b) upon receiving a complaint or information of facts constituting such offence made or communicated by any person; or

(c) upon his own knowledge acquired during any proceeding before him under this Act or under the Prevention of Smuggling Act,1977.

13. From the above statutory provision, it is clear that every Tom and Harry is not allowed to file a final report or charge-sheet on behalf of state before the Special Judge. The law has assigned this function to a customs officer or any other officer empowered under Gazette Notification of FBR, to act as customs officer. In the instant matter, Final Report was submitted by FIA in which all the prosecution witnesses are FIA personals. During the course of arguments, the learned prosecutor did not place, produce or refer any notification of authorisation of powers as 'officer of the customs' to the prosecution witnesses, who conducted the proceedings against the applicant. What is more, one of the important prosecution witness, during his cross-examination, has admitted that the concerned FIA officials have no power to act as customs officers.

14. Now, I would like to touch the merits of the case. As per officer in charge of raiding party, the passenger was intercepted due to a tipoff and from his possession some contraband articles (parts of Glock pistols) were recovered. The information was not passed on to the customs officers but the FIA officials assuming that being the members of FIA, they are competent to intercept and recover the allegedly contraband articles. It is an admitted fact that the recovered articles do not fulfil the definition of 'arms' or 'weapons'. At the most, the same are being used for repairing of a Glock pistol. The FIA officials tried to make out a case that the Glock pistols were smuggled in parts but it is a fact that in this respect, no evidence was collected by the prosecution. Another aspect of the case is important that is the proper proceedings were not followed. As per law, a passenger cannot be intercepted with a charge of smuggling unless an opportunity of disclosure is not provided to him. In the instant case, the applicant was intercepted before reaching immigration counter or collecting his luggage. He was not allowed to approach the concerned customs officials, as such the process of intercepting itself is questionable. It appears that the FIA of officials were unaware of the customs laws, rules and regulations; therefore, they violated certain important and mandatory provisions in respect of providing opportunity of disclosure to the applicant. This fact is very much evident from the deposition of Inspector Muhammad Saeed, shift in-charge who lodged FIR, who disclosed that he was unaware of customs laws and regulations. According to this witness, the applicant was arrested by him from inside of the plane. He also admits that he has not provided an opportunity to the accused to declare his goods to the Preventive Collectorate, Pakistan Customs posted inside JIAP, Karachi Declaration Hall. He also admits that FIA has no jurisdiction to examine, assess or claim customs duty of any goods brought by the passengers. He also admits that FIA has no jurisdiction to check any passenger regarding importation of goods in the country. From the above examination of an important prosecution witness, it is clear that the applicant was arrested before approaching to concerned customs officer and he was not allowed to declare the goods, he was bringing with him. In this respect, the law is very much clear and as per Section 139 of the Customs Act, if a passenger declares with proper details of goods he is carrying and shows his readiness to pay the Customs duty, it cannot be termed that he was smuggling some goods. I would like to reproduce 139 of the Customs Act, 1969:

139. Declaration by passenger or crew of baggage.- The owner of any baggage whether a passenger or a member of the crew shall, for the purposes of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such articles for examination.

Provided that where the Customs Computerized System is operational, all declarations and communications shall be electronic.

From the above provision of law, it becomes crystal clear that it is mandatory for a customs officer to provide an opportunity for declaring goods carried by a passenger. In case, the passenger declares the goods he was carrying, his act of bringing these articles does not amount to an offence. In this respect, I fortify my view from a case of this Court reported as Feroz Rehman Batla v/s The State (1980 PCrLJ 663), wherein it is held as under :

"I have perused the investigation papers submitted before me by the learned counsel for the State. 1t appears to me that as reflected in the F.I.R. the goods of the applicant were‑ taken possession of by the S.P.O. immediately on their being unloaded and the applicant was interrogated. Section 142 of the Customs Act makes provision for making the true declaration under section 139 to the Appropriate Office and for detention of dutiable articles at the request of the passenger until he leaves the country. It is, therefore, cleat that if such a declaration is made to the Appropriate Officer, the mere fact that certain goods are brought in the Airport which are subject to payment of duty or the import of which is prohibited or restricted will not constitute an offence punishable under section 156 (1), clause (8) of the Customs Act.”

As far as ‘appropriate officer’ is concerned, he has been defined in section 2(b) of the Customs Act, 1969, according to which an ‘appropriate officer’ is the officer of the customs to whom functions are assigned under the said Act.

15. Be that as it may, it is a fact that after interception, the opportunity to declare goods as per provision of Section 139 was declined. This fact is admitted in his deposition recorded before the trial Court by an important prosecution witness, Inspector Muhammad Saeed, who has logged the FIR. In cross-examination, this witness admits that the applicant was arrested by him from inside the plane. Meaning thereby that he was arrested before approaching or contacting any customs officer. Even, Inspector Saeed admits that the applicant was not allowed to contact with the customs officials posted at JIAP. I would like to reproduce the relevant portion of his cross-examination as under: -

"I have not provided the opportunity to the accused Mumtazuddin to declare his goods to the Preventive Collectorate Pakistan Customs posted inside JIAP, Karachi declaration hall. It is correct to suggest that the FIA have no jurisdiction or declared Karachi airport to enquire and check any passenger regarding importation of anything in as much as the FIA has also no jurisdiction to examine, assess or claim customs duty of any goods brought by the passengers."

It is pertinent to mention that this important prosecution witness was not declared hostile by the prosecution besides the other prosecution witnesses examined so far have also supported this witness in respect of not providing opportunity of declaration of goods to customs officials.

16. Now, in view of the prosecution evidence so far recorded, the prosecution case is that the applicant was intercepted while he was coming Pakistan from Belgium, he was intercepted by the FIA officials either inside or outside the plane but without his approaching to customs officials and certain quantity of parts of Glock pistols were recovered from his baggage. He was neither given an opportunity to declare those parts of Glock pistols nor he was allowed to approach the concerned customs officials available within 'customs declaration hall’ and he was arrested when in the plan or just disembarked. In these circumstances, how it can be said that the said goods were brought into Pakistan with criminal intent of smuggling. This aspect of the case is admitted by prosecution witness Rana Ghulam Shabbir, as in response to question during cross-examination, he says as under:-

"It is correct to suggest that the seizing officer Muhammad Saeed as well another staff have allowed the accused Mumtazuddin to declare his item to the Preventive Collectorate posted inside JIAP. It is correct to suggest that the seizing officer and other staff did not provide opportunity to accused Mumtazuddin to play custom duty to the Preventive Collectorate in respect of items which he was carrying. It is correct to suggest that if Mumtazuddin allowed to file a bill of entry/GD with Preventive Collectorate on 21-8-2014 and paid the customs duty then he will not charge as an smuggler."

17. It is not clear that the said Glock pistols were confiscated or not but it is evident from the available records that the same have been seized being liable to confiscation. In such a situation, it is mandatory under the Section 180 of the Customs Act that a show cause, notice be served upon the applicant within a period of two months but no such notice was served. Besides, as per Section 169 of the Customs Act, if the goods are seized then the same should be delivered to the concerned officer of customs authorised to receive such items. However, it is a factual position that the said parts of Glock pistols were not produced during examination of those important prosecution witnesses before whom the arrest and recovery was taken place. These items are required to be produced before the trial Court at the time of examination of the said important prosecution witnesses as 'real evidence' to be identified as the same items, which were recovered from the accused.

18. Since recovery and seizure that are coupled with the arrest of accused; therefore, as per the provision of Section 171 of the Customs Act, reasons should be a specified regarding the arrest of the accused through a notice. Although, a notice is available in the record exhibited as 'Exhibit-6/A' but the same is not proper and appears to be issued after the arrest and registration of the case, as it bears the crime number and in the last portion date is incorrect. Besides another important aspect of that notice is that the same is issued by the investigation officer, which is contrary to law. I would like to reproduce Section 171 of the Customs Act, which reads as:-

"171. When seizure or arrest is made, reason in writing to be given.- When anything is seized, or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest.”

19. From the contents of FIR, it appears that the applicant was intercepted and arrested by Inspector Muhammad Saeed and others, thereafter he was referred to Inspector Siraj Panhwar of CCCK, who conducted the preliminary enquiry and investigation was entrusted to AD Rana Ghulam Shabbir. Subsequently, investigation was transferred to Inspector Siraj Panhwar himself, who conducted further investigation. From the above facts, it is evident that the applicant was brought before Inspector Siraj Panhwar after arrest and seizure of recovered articles. In such a situation, issuance of notice by the said officer of FIA is not in accordance with the requirements of law, and the same should be issued by Inspector Muhammad Saeed.

20. A specific plea has been taken on behalf of the applicant that one of the prosecution witness namely Pervaiz Alam was previously his brother-in-law and after the desolation of his marriage, he developed an animosity with the applicant and his family. The said Pervaiz Alam has also moved applications against the applicant and his family and even he has filed an application before the trial Court, which indicates that he is not a nonpartisan witness of the prosecution. In such a situation, the plea raised by the applicant for his involvement on the ground of animosity with an important prosecution witness bears weight.

21. The upshot of the above discussion is that there is no probability of conviction in the case against the applicant and other accused persons. If the case is proceeded further, it would be a futile exercise. I therefore came to conclusion that the instant is a fit case for acquittal; hence, the instant application is allowed and the applicant as well as other co-accused including absconding accused are acquitted.

22. The above are the reasons for my short order the 11-09-2018, which is reproduced as under:-

"Heard arguments. For the reasons to be recorded later on, the instant criminal miscellaneous application is allowed in the applicant Mumtazuddin along with the co-accused namely Muhammad Naeem Sajid, Muhammad Hafeezullah Khan, Muhammad Haris, Zahid Abdul Qadir and Ahmed including absconding accused Jawad Samee involved in Case No. 91 of 2014, SIR No. 13 of 2014 under Sections 2 (s), 156 (1) (8) of the Customs Act, 1969 read with Import Policy, 2013 registered at FIA CCC, Karachi are acquitted from the charge."

J U D G E