Present
Mr. Justice Faisal Arab
Mr. Justice Aqeel Ahmed Abbasi.
Sardar Amin Farooqi and others…………….. ………………….Petitioners
Versus
Director, Intelligence & Investigation-FBR & others…… … Respondents
Date of hearing : 08.12.2011
Date of judgment : 08 .12.2011
Mr. Sohail Muzaffar, Advocate for the petitioners alongwith petitioners
Ms. Ayesha Munawar, Advocate holding brief for Mr. Zainul Abedin Jatoi, Advocate for the respondents No.1 and 2 alongwith Jameel Ahmed, Deputy Director on behalf of respondent No.1 and SIO Rana Gulzar Ahmed, complainant.
Mr. Raja Muhammad Irshad, Advocate for the respondent No.3.
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Aqeel Ahmed Abbasi, J: Through this common Judgment, we intend to dispose of the above mentioned petitions which involve similar facts and the controversy, whereby the petitioners have sought quashment of the FIRs registered against the petitioners for the offence alleged therein. All the above petitions have been filed by the Custom Officers, who have been implicated in six different FIRs registered by the respondents in this connection. Though instant petitions have been filed by different Custom Officers in relation to different FIRs, however, it will be advantageous to consider the facts as stated in C.P. No.D-2925 of 2011 to avoid duplication and repetition. Similar relief as claimed in C.P. No.D-2925 of 2011 has been claimed by the petitioners in the following terms, however, with exception to different FIRs numbers in each case.
(a) That the registration of F.I.R No. Enf-II/105-B/ATT/Cus/Enq/2011 dated 24.08.2011 is without lawful authority and the respondents cannot register the said F.I.R as they are not empowered under the law to exercise powers under the provisions of Customs Act, 1969 on basis of which the F.I.R has been registered/lodged.
(b) That the respondents are not conferred with powers under Section 129 of the Customs Act, 1969 or any other Section cited in the F.I.R and as such the respondents cannot interfere with any cargo in transit to Afghanistan under Afghan Transit Trade Agreement, 1965.
(c) That no case of mis-declaration is made out as no custom duty or taxes are payable on the transit cargo.
(d) That the respondents are not an appropriate officer in terms of Section 2(b) of the Customs Act, 1969 and as such cannot exercise powers not vested in them.
(e) That the manner in which F.I.R has been lodged is illegal and malafide exercise of powers by the respondents and such F.I.R is liable to be quashed.
(f) That the Office of the respondents is not a Police Station notified under Section 4(s) of the Code of Criminal Procedure and as such no F.I.R can be registered at such place.
(g) That F.I.R is registered under Section 154 of the Code of Criminal Procedure and the F.I.R lodged by the respondents does not fall within the definition of F.I.R and as such of no legal consequences.
AND WHILE PASSING SUCH ORDER, the Honourable Court be graciously pleased to restrain the respondents, their subordinate staff or any one representing through them or their behalf from adopting any coercive measures against the petitioners and/or arresting the petitioners.
The petitioners pray for the costs of the petition and any other relief which this Honorable Court may deem fit and proper in the circumstances of the case.”
2. It is contended by the learned counsel for the petitioners that the petitioners are Custom Officers, who are posted at MCC (Appraisement), Custom House Karachi for the last several years and have been performing their duties satisfactorily. Per learned counsel, the FIRs under consideration have been lodged under pressure from high-up of FBR appointed as Inquiry Officer to investigate in respect of ISAF/NATO Containers Scam pursuant to Hon’ble Supreme Court of Pakistan’s directions, in Suo-moto Case No.16 of 2010, whereas the petitioners have been falsely implicated in the instant crime as an escape goat. Per learned counsel, the containers of Afghan Transit, which pass through Ports of Pakistan are not subject to customs checking under the terms of Afghan Transit Trade Agreement, 1965 between two countries. Various containers were released for Afghan Government, local parties in Afghanistan and for Nato forces from time to time, however, in view of the agreement none of the containers were subjected to physical examination, which are sent directly to Afghanistan as a Transit cargo. It is further contended that no custom duties or any other taxes are payable on goods being transported under the said agreement, however, the custom authorities have no jurisdiction to inspect the containers that are stuffed goods or any other items, hence no case for mis-declaration in terms of Section 32 or 32-A of the Customs Act, 1969 can be made out. Learned counsel further argued that the officers of Directorate General of Intelligence and Investigation are not empowered to register an F.I.R, as SRO 486(I)/2007 dated 9th June 2007 does not confer any powers to such officer under the relevant provisions of Customs Act, which have been invoked in the subject FIRs. Per learned counsel, in view of hereinabove facts, the instant FIRs have been lodged by the incompetent officers, whereas the petitioners have been falsely implicated without any cause of action, hence the FIRs as well as the proceedings emanating therefrom are liable to be quashed at this stage.
3. Conversely, learned counsel for the respondents has vehemently opposed the very maintainability of the instant petitions on the ground that the matter has been reported by the competent officers to the concerned judge i.e. before Special Judge (Customs & Taxation), Karachi, in accordance with law, whereas, challan has also been submitted. Per learned counsel, the learned trial Court has already taken cognizance of the case under Section 185-A of the Customs Act, 1969, whereafter the matter is proceeding in accordance with law, hence filing of instant petitions under the circumstances, is an attempt to abandon and bye-pass the forum provided by statute and to deprive the competent court of jurisdiction i.e. Special Judge (Customs & Taxation), Karachi, to take cognizance of the offences in accordance with law.
4. While giving the background of the instant cases, learned counsel for the respondents argued that instant cases have been registered pursuant to cognizance having been taken by the Hon’ble Supreme Court of Pakistan in Suo-moto Case No.16/2010 pertaining to a big scam of Afghan Transit containers meant for ISAF/NATO, allegedly consumed within Pakistan, hence evading thereby huge amount of leviable duty and taxes and causing loss to the exchequer. Per learned counsel, a high level Probe Committee was constituted by the Federal Board of Revenue to investigate into the matter and to ascertain factual position. During the investigation conducted by the Probe Committee of FBR, it revealed that besides containers of non-commercial cargo meant for ISAF/NATO, a large number of containers of commercial cargo were also imported for transit to Afghanistan in terms of the Pak-Afghan Transit Trade Agreement, 1965, which were dispatched from Karachi to border Customs stations (Torkham and Chaman) for onward entry into Afghanistan, but they did not reach the Customs stations of destination. Initial investigation by the Probe Committee revealed that 5 containers of Afghan Transit Commercial Cargo dispatched from Port Muhammad Bin Qasim through MCC (PMBQ) and 34 containers dispatched from Karachi Port through MCC (Appraisement), did not reach the destination i.e. Customs station for de-sealing and onward cross border operations. Scrutiny of the relevant record by the Probe Committee also revealed that relevant Afghan Transit Trade Invoices (ATTIs) in respect of 5 containers dispatched from Port Qasim were either not issued at all or were not sent to destination Collectorate as per procedure, while in respect of 34 containers dispatched from Karachi Port, fake Cross Border Certificates (CBCs) were found available in the record of Afghan Transit Section of MCC (Appraisement) apparently to cover up the scam and to pre-empt penal action against the culprits responsible for enroute disposal of dutiable goods meant for transit to Afghanistan. Prima facie, the under-reference goods were disposed off/consumed within Pakistan.
5. It has been further contended by the learned counsel that based on the findings and directions of the Probe Committee, this Directorate General has so far lodged six F.I.Rs bearing No.Enf-II/105/ATT/Enq/Cus/2001, 11.07.2011, MCC (PMBQ), Enf-II/105-A/ATT/Enq/Cus/2011, 11.07.2011, MCC(PMBQ), Enf-II/105-B/ATT/Enq/Cus/2011, 24.8.2011, MCC(Appg), Enf-II/105, C/ATT/Enq/Cus/2011, 24.08.2011, MCC(Appg), Enf-II/105-D/ATT/Enq/Cus/2011, 26.08.2011, MCC (Appg) and Enf-II/105-E/ATT/Enq/Cus/2011, 26.08.2011, MCC/Appg.
6. While giving the detail of the F.I.Rs, it has been contended by the learned counsel that 2 FIRs pertain to the containers/goods dispatched from Port Muhammad Bin Qasim through MCC (PMBQ) while later 4 FIRs, from S.No. 3 to 6 above, pertain to the containers dispatched from Karachi Port through MCC (Appraisement). The relevant Goods Declarations were processed by the Customs staff posted in the Transit Sections of both the Collectorates. The instant petitions have been filed by the customs officials of MCC (Appraisement) who were posted in the Afghan Transit Section of the Collectorate and processed the Goods Declarations of 34 containers without following the proper procedures hence nominated in the FIRs for further investigations to ascertain their criminal involvement, if any. Apparently, the gross negligence and serious procedural lapses on part of said officials facilitated the culprits to clear the under-reference containers from Port.
7. Per learned counsel, the under-reference FIRs have been lodged on specific directions of the Probe Committee, FBR, which is quite competent to assign any investigation to the Directorate General, I&I, specially in the circumstances when the staff of the clearance Collectorate is prima facie involved in the scam. In order to ensure impartiality and transparency in the investigations the instant prosecutions have been assigned to the Directorate General. Further more, Directorate General itself is empowered to investigate the cases of smuggling of goods imported in the garb of Transit Cargo as per its Charter of Function and notification SRO-486(I)/2007, dated 09.06.2007.
8. Learned counsel for the respondents, while explaining the allegations as contained in the FIRs submitted that the provisions of Section 32 and 32-A are very much attracted on the facts and circumstance of the case, whereas the involvement of the petitioners, who dealt with such consignments and processed the G.Ds filed under Section 129 of the Customs Act, 1969 cannot be ruled out. Per learned counsel, the detailed investigation has revealed that the Cross Border Certificates of consignments (CBCs) meant for transit to Afghanistan were fake and fabricated, which means that the consignments were never taken out of Pakistan and the same were actually disposed of illegally which involved huge evasion of duty and taxes. It has been further contended that in the garb of Afghan Transit Scheme the accused nominated in the instant F.I.Rs with the connivance of the customs officials committed offences as mentioned in the FIR including smuggling, which cause huge losses to the public exchequer by evading duty and taxes. Per learned counsel, since the consignments were smuggled into Pakistan without making payment of duty and taxes under the garb of Afghan Transit Scheme, the respondents were justified to prevent the smuggling and to invoke the provisions of Section 2(s), 16, 32 (1), 32A, 121, 127, 128, 129, 209, punishable under clause 8, 14, 14A, 43, 47, 63, 64, 81, 82 and 86 of the Customs Act, 1969.
9. While concluding the arguments, learned counsel for the respondents has submitted that instant petitions besides being pre-mature, seeking quashment of the proceedings pending before competent court of jurisdiction are not maintainable and are liable to be dismissed with cost. In support of his contention, learned counsel has placed reliance on the following case-law:
1. M/s Baba Khan v. Collector of Customs, Quetta and 2 others PTCL 2000 CL 688 (SC)
2. Ch. Abid Saeed and others v. The State 2002 P.Cr.L.J 1818
3. Order dated 27.10.2010 (C.P.No.D-2410/2010, Sindh High Court)
4. Federation of Pakistan and 5 others v. Jamaluddin and others PTCL 1996 CL 534
5. Order dated 21.05.1998 (Cr. Appeals No.103-107/1994, Supreme Court)
6. Messrs N.B. Trading Company, Samberial (Sialkot) and others v. Collector of Customs (Appraisement),Customs House, Lahore and others 2003 PTD 14(Sindh High Court).
10. Admittedly, the cognizance of the instant matter was taken by the Hon’ble Supreme Court of Pakistan in Suo-moto Case No.16/2010 pertaining to a big scam of Afghan Transit containers meant for ISAF/NATO, which were allegedly consumed within Pakistan, hence evading thereby huge amount of leviable duty and taxes and caused loss to the exchequer in the direction of a high level Probe Committee was constituted by the Federal Board of Revenue to investigate into the matter. Pursuant to such investigation it reveals that besides containers of non-commercial cargo meant for ISAF/NATO, a large number of containers of commercial cargo were also imported for transit to Afghanistan in terms of the Pak-Afghan Transit Trade Agreement, 1965, which were dispatched from Karachi to border Customs stations (Torkham and Chaman) for onward entry into Afghanistan, but they did not reach the Customs stations of destination. Initial investigation revealed that 5 containers of Afghan Transit Commercial Cargo dispatched from Port Muhammad Bin Qasim through MCC (PMBQ) and 34 containers dispatched from Karachi Port through MCC (Appraisement), did not reach the destination i.e. Customs stations for de-sealing and onward cross border operations. Scrutiny of the relevant record by the Probe Committee further revealed that relevant Afghan Transit Trade Invoices (ATTIs) in respect of 5 containers dispatched from Port Qasim were either not issued at all or were not sent to destination Collectorate as per procedure, while in respect of 34 containers dispatched from Karachi Port, fake Cross Border Certificates (CBCs) were found available in the record of Afghan Transit Section of MCC (Appraisement) apparently to cover up the scam and to pre-empt penal action against the responsible persons who in the garb of Afghan Transit Scheme smuggled dutiable goods into Pakistan and disposed off/consumed the same within Pakistan without payment of duty and taxes payable thereon. It has also come on record that in view of the findings of the Probe Committee the Directorate General has lodged six FIRs against the accused persons for violating the provisions of Customs Act, 1969, including the present petitioners, who have allegedly connived with the alleged offences as contained in the FIRs. It is pertinent to mention that besides having taken cognizance on the basis of finding of Probe Committee constituted by the F.B.R pursuant to the directions of the Hon’ble Supreme Court in Suo-moto Case No.16 of 2010, the Directorate General of Customs Intelligence has reported the matter to the Special Judge, Customs, who has taken cognizance of the matter under Section 185-A of the Customs Act, 1969, whereas challan has been submitted and the matter is pending adjudication in accordance with law. Section 185-A of the Customs Act, authorizes Special Judge of Customs to take cognizance of any offence punishable under this act within the territorial limits of his jurisdiction upon a report in writing made by an officer of custom or by any other officer specially authorized in this behalf by the Federal Government or upon receiving a complaint or information of facts constituting such offence made or communicated by any person or upon his own knowledge acquired during any proceeding before him under this act or under the prevention of Smuggling Act, 1977. Section 2(b) defines appropriate officer of customs which means the officer of customs to whom such functions have been assigned by or under this Act or the rules made thereunder. Whereas Section 3A defines the appointment of Directorate General of Intelligence and Investigation consisting of a Directorate General and as many Directors, Additional Directors, Deputy Directors, Assistant Directors and such officers as the Board may, by notification in the official Gazette, appoint. Powers, functions and jurisdiction of the officers of Directorate General of Intelligence and Investigation are defined by the Federal Board of Revenue from time to time through various notifications and SROs including SRO No.486(1)/2007 dated 9th June 2007.
11. While examining the scope of maintainability of constitutional petition seeking quashment of proceedings, the Hon’ble Supreme Court in the case of Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276, has held as under:
“It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. in such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned F.I.R. by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i.e. section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C. The respondents have following alternative remedies under Cr.P.C :-
(a) To appear before the Investigating Officer to prove their innocence.
(b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C.
(c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence.
(d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter.
(e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate.
(f) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.”
12. On tentative assessment of the record, it appears that the case has been registered by the Customs Officer in view of the alleged mis-use of Afghan Transit Trade Scheme, which resulted in evasion of leviable duty and taxes, whereas cognizance has been taken by the competent court of jurisdiction constituted in terms of section 185-A of the Customs Act, 1969. Challan has been submitted, whereas the accused nominated therein are facing trial. The matter is subjudiced before the competent court of jurisdiction specially constituted by the statute for such purpose, who shall decide the same after examining the material and evidence available on record. It appears that the petitioners, by filing instant Constitutional Petitions, have attempted to thwart the legal proceedings and to bye-pass the remedy available to them under the statute, without any lawful justification, whereas all objections relating to the jurisdiction or otherwise, can be raised by the petitioners before the court of first instance i.e. Special Judge, Customs. Nothing has been brought on record to justify any allegation of malafide on the part of respondents, nor any material has been produced which may require any interference by this court in its constitutional jurisdiction at this stage.
13. Resultantly, instant petitions being devoid of any merits, were dismissed by this court vide short order on 08.12.2011 and these are the reasons of such short order.
JUDGE
JUDGE
Karachi
Dated: -06-2012