' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeals No,440 and 441 of 2002 as they are directed against a common judgment passed by the High Court of BalochiAan, Quetta in terms of which two Constitutional Petitions (Nos.256 and 257 of 1998) filed by the respondents were allowed, the judgment of Special Appellate Court Customs Balochistan dated 22-7-1998 was set aside and the orders of acquittal of the respondents (dated 24-9-1997 and 27- 9-1997) passed by learned Special Judge, Customs Khuzdar were restored.
2. The prosecution case as given in the case registered vide F.I.R No,S.-I./MISC/41/95(G) dated 5th November, 1995 on the statement of Fazale Kareem, Assistant Collector Customs, Gaddani is as follows:-- "The Federal Government imposed regulatory duty of 10% with effect from 29-10-1995. The witness No,1, Principal Appraiser, Manzoor Ahmed Bhutto, reported on 30-10-1995 that he inspected the machine register to check the filing of the bills of entry and on scrutiny of the register it was found that at page number 21 machine number 2 dated 26-10-1995 pertaining to M.V Universe which was initially registered on 29-10-1995 was tampered with through overwriting/erosion. An attempt was thereby made to insert a new entry relating to T.T. Mona. However on second thought the accused No,1, UDC, Nisar Ahmed Soomro with a view to deceiving the higher authorities and to remove suspicion created through overwriting/erasures decided to altogether cancel the subject bill of entry vis serial number 2 by initialing the same. The entry in question was substituted by a new entry relating to T. T. Mona by affixing 26-10-1995 as the date of which the bill of entry was filed. To further cover up the fraud, whereby the Government would have been deprived of Rs,27.5 million approximately on account of new levy of 10% regulatory duty applicable with effect from 29-10- 1995 a new serial was inserted whereby the subject vessel namely T.T. Mona was shown as being registered on 26-10-1995 followed by the entry relating to M.V Universe filed on 29-10-1995. The forgery can be gauged from the notings of the file in which the Accused No,1, Nisar Ahmed Soomro (File No,Si/Misc/38/95 dated 26-10-1995) Note Sheet I submitted to the A.O/P.A on 26-10-1995 for acceptance of I.G.M. The Appraising Officer approved the note on 28-10-1995 and the Principal Appraiser also approved the note on 28-10-1995, the accused number 1, Nisar Ahmed Soomro again submitted the file to Appraising Officer and Principal Appraiser vide note sheet 2 and initialed the date as 26-10-1995 whereas he would have received the file only after 28-10-1995 in which he stated that the bill of entry manifested and given number 2 dated 26-10-1995.
' The accused No,2 submitted the bill of entry on behalf of Accused No,3 in connivance with accused No,1 tampered the machine register by inserting a new date by counterfeiting, falsifying or fraudulently altering or destroying against the interest of Federal Government and to the Financial benefit of the Accused No,1, the importer Messrs Dewan Scrap Pvt. Ltd. The commission of offence of forging/tampering official document in order to illegally benefit the accused No,3 Messrs Dewan Scrap Pvt. Ltd., to the tune of Rs,27.5 Million approximately is further confirmed from the statement of Accused No,1 Nisar Ahmed Soomro, whereby his own statement he has stated that the Appraising Officer and the Principal Appraiser signed the note of approval relating to the manifestation of IGM on or after 28-10-1995 which in itself is contradictory hence arousing serious doubt with regard to the entire affair. The accused No,1 Nisar Ahmed Soomro in his statement has also admitted that the cutting in the bills of entry machine number register was made on 29-10- 1995 by him."
3. After due investigation challan was submitted before the Special Judge, Customs against the three respondents and Nisar co-accused was declared fugitive to law. Most of the prosecution evidence had already been recorded when on the application of Azam Malik under section 265-K Cr.P.C., he was acquitted on 24th September, 1997 on the ground as under:-- " In F.I.R applicant has not been involved by name rather only Messrs Dewan Scrap Ltd., has been implicated. Similarly in challan it has been alleged that accused Azam Malik and Asif Malik are owners of Dewan Scrap Ltd., and accused Mehmood filed bill of entry on behalf of above accused but no such documents has been filed showing any concern of applicant with Dewan Scrap Ltd.
Besides the documents so produced by prosecution do not reveal any connection of applicant with Dewan Scrap Ltd or T.T. Mona. On the other hand, application of Association and Memorandum of Association of Dewan Scrap Ltd., also does not provide the Partnership of or any concern of applicant with Dewan Scrip Ltd. Moreover the prosecution evidence has also not alleged the presence of applicant in the office of Customs Gadani during the pursuance of alleged offence all the necessary P.Ws except Investigating Officer have been examined and even the statement of Investigating Officer if examined will not sufficient to connect the applicant with the alleged offence.................................. "
4. Just after three days the trial Court accepted the application of respondent Mehmood and Asif Malik and acquitted them by holding as follows : - "The above discussion shows that the prosecution witnesses have exonerated the accused from the commission of offence and the Investigating Officer clearly admitted that he could not get any proof against accused and there was no other proof against accused Mehmood except the enquiry report. C. W.2 has clearly stated that on examination it was found that digit '6' of 26-10-1995 has been altered with digit '9' of 29-10-1995. Since it has been proved that accused had filed I.C.M., and bill of entry on 26-10-1995 and regulatory duty was applicable with effect from 29-10-1995, therefore, it cannot be believed that accused altered the date 26-10-1995 with 29-10-1995 because it would have gone against their interest and benefit and as such there were no reasons for accused to tamper with such record. Besides the investigation of the case was not made according to law. No material was collected by the Investigating Officer nor he took the disputed register into possession nor sent to the Expert. He based his challan on enquiry report which otherwise has no evidentiary value in the present case. It shows that the investigation in this case has been conducted in most causal and slipshod manner The Customs .Department should look into the matter and take proper steps to avoid such practice in future."
5. Both the afore-referred orders were challenged by Customs Department by way of appeal under section 185-F of the Customs Act.
' Learned Appellate Judge vide order dated 22-7-1998 set aside the orders of acquittal and directed the trial Court to proceed with the trial. The , learned Appellate Court was of the prima facie view that tampering/over writing, cutting was apparent on record, that this evidence was not considered by the trial Court, that the report of the Director Intelligence tendered in evidence by the departmental official was not given any weight, that reliance was placed on a Court witness who was summoned on an application of the respondent/accused without hearing the public prosecutor, that the order sheet indicated that the trial Court acted in haste to decide the applications under section 265-K, Cr.P.C., that material prosecution witnesses were' not examined and that the learned trial Court failed to examine that if Vessel T.T. Mona beached at Gaddani Ship Breaking Yard on 26-10-1995 at 3.00 p.m., could the IGM and Bill of Entry be filed the same day?
6. The judgment of the Appellate Court was set aside by the Balochistan High Court vide the impugned judgment dated 6-12-2000 on the sole ground that the appeal before the Special Appellate Court. Customs had been incompetently filed by Mr. M.S. Rakhshani, Advocate who was not a Law Officer within the meaning of Central Law Officers Ordinance, 1970.
7. Raja Muhammad Irshad, learned Deputy Attorney General in support of these appeals made following submissions:--
(i) That the learned Division Bench of Hon'ble High Court of Balochistan has fallen into error in holding that the appeal against acquittal could not be filed by Mr. M.S. Rakhshani, Advocate before the Special Appellate Court. Section 185-F(1) of the Customs Act, 1969 has not properly been appreciated and interpreted in its true perspective;
(ii) That Mr. M.S. Rakhshani, was duly authorized by Collector (Appeals) to file the appeal and the latter was competent to do the same under the law;
(iii) That the order of remand passed by the learned Special Appellate Court Customs Balochistan dated 22-7-1998 was a remand order and was not amenable to the Constitutional jurisdiction of High Court.
(iv) That there were serious allegations substantiated with record against the respondent/accused to the effect that with a view to help the importer for evading the Regulatory Duty they tampered with the record and thereby showed that the bill of entry had been filed on 26-10-1995 whereas the documentary and circumstantial evidence indicated that it could not have been filed by the said date.
8. Mr. Fakhruddin G. Ebrahim, learned counsel for respondent in Criminal Appeal No,441 of 2002 defended the impugned judgment by submitting as under:-
(i) That in terms of section 185-F of the Customs Act only the Federal Government could file the appeal whereas in the instant case there is nothing on record to indicate that the-Federal Government had issued sanction/authorization to file the appeal.
(ii) That in view of section 4-A of the Central Law Officers Ordinance, 1970 (as added on 11-11-1985) only a Law Officer appointed by the Federal Government could file an appeal whereas the appeal was filed by an Advocate who admittedly was not a Law Officer. That being so, the High Court had rightly set aside the order of the Special Appellate Court Customs. Learned counsel submitted that the precedent case-law reported as 1986 PCr.LJ 137 was not applicable in the instant case firstly because when the afore-referred judgment was delivered i,e, on 3-8-1985 section 4-A of the Central Law Officers Ordinance, 1970 was not part of the Central Law Officers Ordinance, 1970 and secondly in' the said case the authorization had been issued by the competent Authority and the Law Department. In support of the submissions made learned counsel relied on (i) Kadir Bakhsh and others v. The Crown (PLD 1955 F.C. 79) (ii) The State v. Muhammad Hussain (PLD 1968 SC 265)
(iii) The State v. Muhammad Nasim Baig (1989 PCr.LJ 1842), (iv) .State through Advocate General, Sindh v. Hanif Ahmed and others (1994 SCM R 749), (v) The State through Public Prosecutor v.
Shoukat Ali (1998 PCr.LJ 1503), and (vi) Haji Abdullah Jan and others v. The State (2003 SCM R 1063).
9. Mr. Abdul Hafeez Pirzada, learned counsel for respondent in Civil Appeal No,440 of 2002 while defending the judgment of acquittal contended as under:- ' That respondent Azam Malik was acquitted by the trial Court as it was of the view that the material collected by the prosecution and the evidence led during trial was not sufficient to convict the respondent. The finding of acquittal, he added, is well-reasoned and para. 9 of the order of the trial Court reflects that merits were considered. Since the respondent stands acquitted under section 265-K of the Code of Criminal Procedure, valuable right had accrued to him. The presumption of innocence of an accused assumes double strength when he is acquitted and the Court may not interfere with this finding of acquittal unless the order passed is arbitrary, perverse or against the law declared.
(ii) That the appeal filed by the appellant (as against the order of acquittal of the respondents) before the learned Special Appellate Court Customs Balochistan was no appeal in the eye of law as it had neither been filed by the Federal Government as envisaged in section 185-F of the Customs Act nor there was prior consultation with the Law Department as mandated by Rule 14 of the Rules of Business, 1973.
(iii) That the Rules of Business framed by the Federal Government under Articles 90 and 99 of the Constitution of Islamic Republic of Pakistan have the force of law and Rule 14 of those Rules provides that the Law Department shall be consulted by all the Departments before filing appeal.
This mandate stands further reiterated by Customs General Order I of 1984 whereby advice of the Law Department was directed to be circulated which inter-alia provided that "According to the requirement of Rules of Business and the Secretariat instructions it is the ultimate responsibility of the Law Division to decide to file or defend a case in the Court of law. Accordingly, in the normal course each and every case before it is defended or filed in the Court of law, the Law Division has to be consulted".
(iv) In reply to the submissions made by learned Deputy Attorney General he contended that the expression "any person" appearing in section 185-F of the Customs Act means a private individual who stands convicted and the same cannot be given extended meaning to include a Customs official or a private individual who is not happy with the order of acquittal. According to him if such a meaning is given to this expression it would open a Pandora's box and there would be nothing to stop private individuals to wreck vengeance from a person or official who stands acquitted by a Court of law. He, however, on Court query, conceded that the Central Board of Revenue is competent to file an appeal against acquittal.
10. Learned Deputy Attorney General in reply to the submissions made by -respondents' learned counsel contended that the Customs General Orders are administrative instructions and can not override the mandate of law. He added that the. Customs Act is a special law. Section 219 of which empowers the Central Board of Revenue to make Rules. There is nothing in the Rules framed under the afore-referred provision to infer that the Collector could not file appeal by engaging a counsel.
11. We have heard learned counsel for the parties and have gone through the impugned judgment and have given anxious consideration to the submissions made and the issues raised.
12. Broadly speaking following questions have cropped up for consideration in the instant appeals:- -
(i) Whether the expression "Any person" is confined to a private individual who stands convicted or'penalized or it includes any person i,e, private individual, corporate person or a person in authority whdis aggrieved of an order passed under the Customs Act?
(ii) Whether the appeal filed by the Collector of Customs and Excise, Quetta through Mr. M.S. Rakhshani, Advocate was competently filed in terms of section 185-F of the Customs Act or the same is hit by section 185-G of the said Act, subsection 2 of which inter alia stipulates that "A Law Officer appointed under the Central Law Officers Ordinance, 1970 shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government"?
(iii) Whether the prosecution had not furnished sufficient material/evidence to warrant prosecution or "no probability of the accused being convicted of any offence" in terms of section 265-K, Cr.P.C., to warrant passage of the orders of acquittal of the respondents?
13. For better appreciation of the first question it is imperative to refer to section 185-F of the Customs Act which reads as under:-- "185-F. Appeal to Special Appellate Court.----(1) Any person, including the Federal Government, aggrieved by an order passed or decision made by a Special Judge under this Act or under the Code of Criminal. Procedure, 1898 (Act V of 1898), may subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of order or decision prefer an appeal or revision to the Special Appellate Court, and - in hearing and disposing of such Appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.
(2) Except as otherwise provided in subsection (1, the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or a revision preferred under subsection (1)."
14, "Any person" has been qualified by two.Expressions namely "including the Federal Government" and "aggrieved by an order". Although "Any person" has not been defined in .The Customs Act yet it does not mean that this expression is wide enough to include every person in this wide world. It is necessarily circumscribed by the context in which it appears in the appeal or revision as the case may be. The word "aggrieved" qualifies the former expression and in the context of a penal statute "Any person" aggrieved would mean a person who is convicted in a case of tax evasion or a related criminal transaction or a person or authority who in the discharge of his functions under the law is interested in recovering the tax or prosecuting a tax evader or a person who is aggrieved of adverse remarks in the order passed by the Trial Court which is sought to be challenged in appeal or revision. The use of the word "including" does not have the import of restricting or limiting the scope of the right. It has been used in the sense of "moreover" or "as well". It does not necessarily place a meaning limited to the "inclusions". Thus "including" the Federal Government would mean that besides "Any person" the Federal Government if aggrieved in the context in question may also appeal. In Rex v. Keepers of the Peace and Justice in the County of London (1945 Law Reports King's Bench Division Page 528) in a case of acquittal of a person charged under the Excise Management Act, 1927 the Excise Officer was declared to be an "Aggrieved Person" to file appeal against the said acquittal. It was observed as follows:-- "Where an Excise Officer has exhibited an information before a Court of summary jurisdiction charging an offence against the licensing laws, and the information is dismissed, <u.the> by the judgment of the magistrate on the information, and by the terms of .S.82 of the Excise Management Act, 1827, is given a right of appeal to the quarter sessions against the acquittal of the person charged." (Emphasis is supplied).</u.the>
15. Unlike the Criminal Procedure Code, the Customs Act does not provide a separate provision for filing an appeal against conviction (as provided in terms of section 410 of the Criminal Procedure Code) and for an appeal against acquittal (as stipulated in terms of section 417 of the Code of Criminal Procedure). Under the Customs Act there is only one section catering for appeals both against conviction and acquittal. Hence the word "aggrieved" refers to a person either way i,e, aggrieved of conviction or acquittal.
16. The right of appeal under section 417 of the Code of Criminal Procedure was initially limited i,e, only the Provincial. Government could direct the Public Prosecutor to file an appeal against acquittal before the High Court. The ambit of this section was enlarged by Act XIX of 1994 whereby section 2-A was inserted, which stipulates "a person aggrieved by the order of acquittal passed by any Court other than a High Court, may within 30 days file an appeal against such order". The expression "person aggrieved" came up for consideration in The State through Deputy Director (FIA) of Pakistan at Quetta v. Zahid Nadeem and 4 others (1996 M LD 506) a Division. Bench of Balochistan High Court (of which one of us i,e,, Mr. Justice Javed Iqbal as Judge of High Court) held that the concerned agencies of the Government would come within ambit of the "person aggrieved". At page 512 it was observed as under:- ' The appeal has been filed by the Deputy Director of F.I.A , therefore, we need go to the extent of interpreting whether the word 'aggrieved person' includes Federal Government or not. The simple question posed before, us would be whether the Deputy Director, F.I.A., is a 'person aggrieved' or not.
Aggrieved person or aggrieved party has been defined in Black's Law Dictionary as under:- "Aggrieved party.----One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial right, or the imposition upon a party of a burden of obligation".
' On this touchstone we can unhesitatingly infer that Deputy Director, F.I.A., is an aggrieved person because after when he deducted that the appellants with connivance of some Drug Inspectors have been indulging in illegal business of drugs of substandard and spurious drugs thereby causing injury to the general public for which the Deputy Director, F.I.A., has a legal obligation to control. There is no cavil that it is included in the duties of the Deputy Director, F.I.A., to collect information and to take legal action against such person who are indulged in anti-social activities like manufacturing spurious drugs and selling it in the market to the general public, therefore, a raid was conducted and investigation started. Hence when such persons have been acquitted of the charge by the trial Court naturally the Deputy Director, F.I.A., would be aggrieved person as far as acquittal from such charge is concerned. We have already mentioned that this appeal has not been filed by the Federal Government but by Deputy Director, F.I.A., who is a servant of the Federal Government".
17. The foregoing analysis persuades us to hold that the Collector was an "aggrieved person" as the F.I.R., was registered by the Assistant collector concerned and he could file appeal against acquittal.
18. Coming to the second question/proposition as to whether the appeal filed by Collectorate of Customs through a private counsel the learned :Division Bench of the High Court of Balochistan has held, "And as the right of appeal has been given to Federal Government, therefore, a Law Officer appointed under the Central Law Officers Ordinance, 1970 shall be competent to file appeal.
Therefore, it is concluded that appeal was incompetently filed., in either way". The afore-referred finding we may observe, with respect, is not a correct interpretation of legislative intent. Firstly it proceeds on assumption that the right of appeal has been given to the Federal Government only and therefore, a Law Officer appointed under the Central Law Officer Ordinance, 1970 could only file the appeal. We have already held in para. 14 that the expression D "including the Federal Government has been used to enlarge the scope and the Federal Government has too been given the right of appeal and it does not restrict the said right in any manner to the Federal Government alone. Secondly it escaped the notice of learned High Court that the title of the two appeals filed before the Special Appellate Court Customs (Acquittal Appeals Nos.25 and 26 of 1997) indicate that those were composite appeals filed on behalf of the Federal Government through Collectorate Preventive Custom House, Quetta and the sanction for filing the said appeal had duly been given by the Collector concerned yide order/memo. Dated 14-10-1997 which reads as follows:- "Mr. Muhammad Shafi Rakhshani Advocate, is hereby nominated to file appeal in the Honourable High Court of Balochistan, Quetta against the order of Honourable Special Judge Customs Khuzdar Camp at Hub dated 24-9-1997 in Miscellaneous Application No, 39 of 1997 and order dated 27-9- 1997 in Custom Case No,1 of 1996."
' The appeals filed being composite if the learned High Court was of the view that the appeal on behalf of the Federal Government could be filed only by a Law Officer in terms of the Ordinance referred to above then the appeals could be treated as appeals filed by the Collector and there is no specific restriction on the said authority in the Ordinance to engage a private counsel. However, even if those appeals are treated as appeals filed by the Federal Government, a careful examination of subsection (2) of section 185-G of the Customs Act read with section 4-A of Central Law Officers Ordinance, 1970 would show that the law E makers did not intend to restrict representation by Law Officers alone to the exclusion of other Advocates if the competent Authority in the Federal Government so decides. If such a restricted meaning is accorded to this provision it would tie down the hands of the Federal Government and in a complicated or important case requiring legal expertise and outstanding professional acumen it may not be able to engage an Advocate of that standing. This could not have been the legislative intent. A reference to section 185-G of the Customs Act and section 4-A of the Central Law Officers Ordinance, 1970 would be in order which reads as under:- "185-G. Person who may conduct prosecution, etc.---(1) Notwithstanding anything contained in the Code of Criminal Procedure 1898 (Act V of 1898), a Special Prosecutor appointed under section 47 of the Prevention of Smuggling Ordinance, 1977, shall be competent to conduct prosecution before a Special Judge for and on behalf of the Federal Government and to withdraw prosecution when so required by the Federal Government.
(2) A Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970) or an Advocate authorized by the Board or by an officer subordinate to it shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government".
' Section 4-A of the Central Law Officers Ordinance 1970, reads as follows:-- "4A. Central Law Officers to be deemed to be public prosecutors, etc.---Notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings, including appeal and revisions, for and on behalf of the Federal Government before any Court or Tribunal, including a special Court constituted under any law".
A careful examination of the afore-referred provisions of law would show that these are enabling provisions which authorize the Law Officer appointed under the law to conduct proceedings before Special Appellate Court Customs' on behalf of the Federal Government without tendering a power of attorney on behalf of the Government, as would be required from a practising Advocate. In State v. M. Ashraf (1986 PCr.LJ 137) at page 140 a learned Judge of the Lahore High Court repelled the limited construction which was being canvassed on behalf of the accused and observed as under:-- "In my opinion the subsection merely enables a Law Officer appointed under the Central Law Officers Ordinance to conduct proceedings before the Special Appellate Court by virtue of his office but it does not create any exclusive right in this regard in their favour. As I read the subsection I can find nothing in it which would preclude the Federal Government from appointing counsel other than a Law Officer for conducting proceedings on its behalf before the said Court."
It however, appears that the wording of the section did create G some confusion and in some cases such a restricted view was taken. Reference may be made to The State v. Muhammad Nasim Baig (1989 PCr.LJ 1842) and The State through Public Prosecutor v. Shoukat Ali (1989 PCr.LJ 1503).
19. It was perhaps to remove this confusion and doubt that subsection (2) of section 185-G was amended by Ordinance XXVII of 2002 and the section presently reads as under:--
(2) A Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970) r an Advocate authorized by the Board or by an officer subordinate to it shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government". (Emphasis is supplied).
20. So far as the precedent case-law of this Court relied upon by respondents' learned counsel is concerned the same is of no avail as the moot point in all those cases is distinguishable. In The State v. Muhammad Hussain (PLD 1968 SC 265) the point in issue was "whether' an Assistant Advocate-General of West Pakistan Government could file an appeal against acquittal without any direction of the Central Government as required under section 10(2) of Pakistan Criminal Law (Amendment) Act, 1958. In Kadir Bakhsh and others v. The Crown (PLD 1955 FC 79) the point in issue was whether the Advocate General is a public prosecutor within the meaning of section 417 of the Criminal Procedure Code. In State through Advocate-General, Sindh v. Hanif Ahmed and others (1994 SCM R 749) the question was whether the Assistant Advocate-General is to be treated as public prosecutor for the purposes of section 417 read with section 492, Cr.P.C.
21. The argument that since there is nothing on record to indicate that the Law, Justice and Human Rights Division in the Federal Government was not consulted before filing the appeal, therefore, the same was incompetent is not tenable because the Rules of Business 1973 though framed under Articles 90 and 99 of the Constitution of Islamic Republic of Pakistan are required to be followed by the Departments in the transaction of their official business but those are meant primarily to regulate the internal working of the departments. Rule 14 of the said Rules is meant to, ensure that all issues requiring interpretation of law or any legal issue arising out of any case should be referred to the Law Department for consultation so that the matter is properly attended to and proper legal advice is given. These Rules, however, are essentially regulatory provisions and non- compliance of it may reflect on the concerned officer under the Service Rules and in absence of bona fides may make him liable to disciplinary action. But so far as the filing of a case in a Court is concerned it is not visited with any penal consequence either under the Rules of Business or Statute concerned. It may also be relevant to note that neither the Collector nor even the Law Department has disowned the filing of appeal before the Special Appellate Court Customs Balochistan in the instant case.
22. This brings us -to the third question i,e, whether the prosecution had sufficient material/evidence to warrant the prosecution of the respondents or there was no probability of accused being convicted of any offence. We have gone through the F.I.R registered against the respondents and the absconding co-accused as also the evidence led before the Court. There were serious allegations that there was tampering/overwriting/cutting of the relevant register of bills of entry, the matter was inquired into at the departmental level and the allegations were found to be correct. Ex facie there was documentary, oral and circumstantial evidence to prove the charges. In the face of this material the Trial Court could not have invoked section 265-K, Cr.P.C.
And acquit the respondents. Thee learned Special Appellate Court Customs having considered the material and evidence on record rightly found as under:-- "I have examined the Machine Number Register (Exh.P.4-A-1) produced by P.W. Manzoor Ahmed Bhutto, the principal Appraiser. As for as overwriting, manipulation cutting etc. Are concerned, they are apparent from its contents. Initially at Serial No,2, Vessel M.V. Universe was entered with overwritten date of 29th October, 1995, but subsequently this entry, which has been shown in the Register as D/B was scored out and behind, it, under the same Serial Number, Vessel T.T. Mona was entered with the date 26th October, 1995' and Serial No,3 was allotted to M.V. Universe with the date '29th October, 1995'. Surprisingly this piece of evidence was not considered by the learned Judge in Trial Court, properly, and after reproducing the evidence of witnesses as well as relying on the Report of Handwriting Expert, concluded that no case is made out against them. It is worth to note that Report of Director, Intelligence (Exh.P/6-A) produced by P.W. Fazal-e-Karim was not referred to, all. Because this Report was on record and it was not objected to, at the time of its tender, therefore, it was the duty of Presiding Officer, to have given same weight to this report and if he was of the opinion, that without providing its contents through its subscriber it cannot be relied upon, then he should have summoned him and after recording his statement and providing right of cross-examination, he should have considered; whether it is admissible or not?".
23. There is yet another aspect of the matter. The respondents who were acquitted by the Trial Court under section 265-K, Cr.P.C. Were facing serious charges of tampering with record with a view to evade millions of public revenue, the trial was in progress and the statement of some of the witnesses have been recorded. The learned Special Appellate Court Customs having gone through the material and the evidence recorded during trial was of the prima facie view that it was not a case of acquittal under the afore-referred provision and while setting aside the order of acquittal remanded the case to the Trial Court for trial. Could in such circumstances the learned High Court in exercise of its writ jurisdiction interfere with the order of remand and thus impede the process of justice? The answer is in the negative. The High Court while passing the impugned judgment ignored the salutary and well established principle of the exercise of writ jurisdiction i,e, that even if the order impugned is without jurisdiction it may not be exercised in aid of injustice or to perpetuate an ill-gotten gain. In The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) at page 350 this Court reiterated this principle and observed as under:-- "The question whether High Court, acting in the exercise of its writ jurisdiction, should have granted relief to the respondent merely on technical grounds, assuming that the order made by the Officer on Special Duty was factually well-founded, has to be answered in the negative in view of opinion repeatedly expressed by this Court in several cases, namely, Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner (PLD 1965 SC 260). Merajuddin v. Director, Health Services (1969 SCM R 4) and Wali Muhammad and others v. Sheik Muhammad and others (PLD 1974 SC 106). In all these cases it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if because of any technical reason an order made by a Tribunal is not found justifiable, as the writ jurisdictions not to be invoked in aid of injustice. It is clear, therefore, that if we were to agree with the learned counsel for the appellant that the respondent had indeed obtained the verification of his claim by practising fraud on the Officers of the Claims Organization, we would have no hesitation in setting aside the impugned order of the High Court, which undoubtedly proceeds on technical grounds alone, and does not touch the merits of case."
24. For what has been discussed above we hold that learned High Court had not correctly appreciated the import of section 185-F and G of the Customs Act. The impugned judgment, therefore, is not in accord with the mandate of law and warrants interference. Both these appeals are allowed and the impugned judgment dated 6-12-2000 of the Balochistan High Court is set aside and that of the Special Appellate Court Customs Balochistan dated 22-7-1988 is restored.
The. Case registered against the respondents shall be treated as pending to be decided by Sessions Judge/Special Judge Customs Hab. The learned trial Court shall ensure that the trial is concluded within two months of the receipt of this judgment. There shall be no order as to costs.
25. The above are the reasons for our short order of the even date.