' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Petitioner has been summoned by Special Judge vide order dated 15-1-2004 to face the trial in Complaint No, 1-1EX/ST/EVASION/UTI/ 52/2003 dated 26-9- 2003.
' Dr. Asif Mehmood Jah, Additional Director Customs Intelligence filed the said complaint against the Office-bearers etc. Of Messrs United Tobacco Industries Mardan, alleging therein that a huge quantity of Cigarettes had been recovered from the godowns of company situated at Shabab Studios, Multan Road, Lahore, and the excise duty in respect of the said Cigarettes had not been paid. Trial Court while entertaining the said complaint recorded the statements of the complainant and thereafter holding the preliminary inquiry vide order dated 2-10-2003 summoned the respondents to face the trial. Thereafter on 20-11-2003 Dr. Asif Mehmood Jah moved an application for amendment in the complaint with the prayer to implead the name of present petitioner along with some other accused. This application was allowed by Special Judge Customs on 15-1-2004 (vide impugned order).
2. Through the instant criminal revision legality of the said order has been challenged on the grounds that once complaint is filed the same cannot be amended and that in the present case learned trial Court prior to filing of fresh/amended complaint and recording fresh statement of the complainant, has given findings qua the involvement of the petitioner and newly-added respondents. It is further submitted that the trial Court has summoned the petitioner in a routine matter, on the mere filing of application by the complainant prior to the filing of formal amended complaint. Submits that there is no evidence on the record to connect the petitioner with the commission of any offence mentioned in the text of the complaint and summoning the petitioner to face the trial in the complaint case would be an abuse of process of law. While concluding the arguments, learned counsel submits that in all fairness of things it will be appropriate if the matter is remanded back to the trial Court to pass a fresh order after examining the complainant and the witnesses.
' Conversely learned counsel appearing on behalf of Customs Authorities while supporting the impugned orders vehemently opposed the arguments raised by the learned counsel for the petitioner.
3. Bare perusal of sections 9-A and 13 of the Central Excise Act, 1944 reveals that during the trial by the Special Judge all the provisions of Criminal Procedure Code except Chapter XXXVIII, shall apply and the Special Judge/Court shall be deemed to be a Court of Session and the Special Judge can take the cognizance of the matter only on a complaint in writing made by a competent Central Excise Officer under the authorization of Central Board of Revenue. Under Chapter XXII-A of the Criminal Procedure Code, procedure for the trial by Courts of Session has been prescribed and this part of the Code is silent about any restriction or fatter on the, jurisdiction of the trial Court to allow permission for the amendment in the complaint already pending or to entertain a fresh complaint, if so required. In this view of the matter, I see no illegality in the impugned order whereby permission has been granted to file fresh amended complaint. Learned counsel for the petitioner submits that summons have been issued against the petitioner for his appearance before the Court whereas till today amended/fresh complaint has not yet been filed by the department, if it is so, to that extent proceedings of the trial Court are set aside and the matter stands remanded back with the direction that on receipt of amended/new complaint filed by the competent Excise Officer, trial Court shall re-examine the complainant, hold a fresh inquiry and thereafter if satisfies that sufficient material is available to connect the petitioner and other respondents, with the commission of any offence falling under the Central Excise Act, then of course the Court shall summon them to face k the trial.