' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.-Petitioner has been summoned by the Special Judge, Customs Lahore to face the trial in a Complaint case No.I.I.Ex/ST/Evasion/ETC/52/2003 dated 29-9- 2003 titled Dr. Asif Mehmood Jah, Deputy Director, Directorate of Intelligence and Investigation (Customs and Excise) Northern Region, Lahore v. Waseem-urRehman etc. Vide order dated 16-2- 2004. Through the instant criminal revision legality of the said order as well as order dated 3-1- 2004 passed by same Special Judge granting permission to the complainant to file amended complaint has been challenged.
2. Initially, the said complaint was filed against President, Directors, Office-bearers etc. Of Messrs Excel Tobacco Company (Pvt.) Ltd. Bhoon Road, Chakwal on the allegation that a huge quantity of Cigarettes of the aforesaid company had been ceased against which no excise duty had been paid. The trial Court on receiving the complaint after recording preliminary evidence of the complainant and making inquiry summoned the accused/respondents to face the trial on 2-10- 2003. On 18-12-2003 Senior Intelligence Officer Mr. Jamshaid Yousaf filed an application seeking permission to file amended complaint while adding the names of more accused (including petitioner). This application was allowed vide order dated 3-1-2004. Thereafter in the light of said permission, amended complaint which included the name of the petitioner and other accused was filed. The trial Court while entertaining the amended complaint vide order dated 16-2-2004 ordered for issuance of summons qua the newly-added respondents (including the petitioner).
3. Learned counsel for the petitioner while challenging the above said order submitted that application for amendment in the complaint was not competent and the trial Court had erroneously entertained the same while passing the impugned order. It was submitted that on receipt of fresh/amended complaint the trial Court should have re-examined the complainant before issuing the process as the Court had done at the first instance. Further submitted that originally complaint was filed by Dr. Asif Mehmood Jah, Deputy Director, but Subsequently application seking amendment in the complaint was moved by Mr. Jamshaid Yousaf, who was not competent to file the same. Learned counsel argued that there is no evidence on the record to connect the petitioner with the commission of offences mentioned in the text of the complaint and summoning of the petitioner to face the trial in the complaint case would be an abuse of process of law and that in the circumstances both the said orders qua summoning the petitioner are not sustainable. While concluding the arguments learned counsel submitted that the bare perusal of the order dated 16-2-2004 reveals that the same was passed without applying the conscious mind and it would meet the ends of justice if the matter is remanded back to the trial Court with the direction to decide the issue afresh after holding preliminary inquiry as required under the law.
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.
4. After hearing the learned counsel for the parties and perusing the record, I have observed that at the first instance learned trial Court had entertained the pre-amended complaint after examining the complainant, holding preliminary inquiry as required under the law and thus after being satisfied about the involvement, summoned the President. Directors, Office-bearers etc. Of Messrs Excel Tobacco Company (Pvt.) Ltd., Chakwal, the respondents in the said complaint, but later on after granting the permission to the complainant vide order dated 3-1-2004 to file amended /fresh complaint, entertained the new amended complaint on 16-2-2004 without complying with the legal formalities i.e. Recording the statement of complainant and making inquiry to satisfy itself that there is sufficient material on the record to connect the petitioner and other. Newly-added respondents. With the commission of offence. It was argued that petitioner was a distributor/agency holder on behalf of Messrs Excel Tobacco Company, Chakwal and for the evasion of excise duty on commodity sold by him he could not be held responsible nor his case falls within the ambit of any of the provisions of offences mentioned in the text of the complaint.
Learned counsel for Customs Authorities when confronted with this argument, was not in a position to make any .Positive reply or to show evidence to connect the petitioner with the commission of offence. Be that as it may, since the amended/fresh complaint was entertained without complying with legal formalities i.e. Examining the complainant and the preliminary inquiry qua the guilt of respondents, I am of the view that the impugned order dated 16-2-2004 to the extent of summoning the respondents is not sustainable. Accordingly, para.2 of the said order is set aside and to this extent the matter stands remanded back to the trial Court with the observation to record the statement of the complainant, make fresh inquiry and thereafter if satisfied about the involvement of the petitioner and other respondents then to summon them to face the trial. With this observation the instant criminal revision stands disposed of.