1. ' MUHAMMAD AEZAL ZULLAH, J.-This petition for special leave to appeal calls in question the judgment of a learned Single Judge of the High Court of Sind, whereby an order passed by a learned Special Judge (Customs and Taxation); taking cognizance of an offence under clause (77) of section 156 of the Customs Act, 1969 (Act IV of 1969), was affirmed. It is stated that two sister concerns namely Liberty Mills Ltd., and Sind Textile Mills Ltd., with which the petitioners are connected in one capacity or the other, were engaged in the manufacture of knitted synthetic fabrics. They also export their products and were entitled to an "export rebate". The procedure for claiming the rebate as explained from the petitioners side, at the relevant time, was that the exporter would make out an invoice specifying the relevant particulars. It would be handed over to the Forwarding Agent for processing the same with the Customs authorities. The shipping bills were prepared in quadruplicate by the agent one of which used to be returned by the Customs authorities, after due examination and verification, so that on the basis thereof a formal claim for export rebate could be made. In the case of Sind Textile Mills Ltd., a rebate claim of Rs, 1,23,461.97 was made on 6-1-1977 by the Export Clerk of the concern on the basis of papers received from the Customs Department. It was signed by Abdul Sattar petitioner who, was then the Accountant of the said concern. It is further stated that after a few' days the company discovered that the claim had been wrongly made to the extent of Rs, 93,721,53 by prefixing numeral 3 to figures 42 and 29, mentioned in connection with "metalic ends" making the figures from 42 and 29 to 342 and 329 respectively. By that time no payment had been made to the company. They wrote a letter on 26- 1-1977 to the Collector of Customs pointing out the above so-called mistake as being "inadvertent/clerical/ mischief" and a request was made for treating the incorrect claim as withdrawn. In view of the above development no order relating to the rebate was passed and in due course a fresh correct claim for Rs, 28,318.77 was filed on 3-2-1977. Three months later the company received a show-cause notice from the Collector of Customs saying that on account of "misdeclaration of the description of the goods", "with a view to obtaining excess rebate", an effence under section 32 read with section 156(14) of the Customs Act had been committed. It was also pointed out in the notice that the amended claim application dated 3-2-1977 was submitted subsequently "fearing that their misdeclaration had been detected by the rebate group". At about the same time the other concern namely Sind Textile Mills Ltd., had made a separate but similar type of claim of export rebate of Rs, 1,24,883.65 and had also received the same. But the excess amount of Rs, 95,143.21 was refunded by them on 25th January 1977. A similar show-cause notice as already noted was also sent to them. A reply was submitted to the Customs authorities where the matter remained pending for over a year. The Customs authorities ultimately did not .Feel satisfied with the explanation and lodged the F. I. R. Dated 30-4-1978 alleging that an offence had been committed under clause (77) of section 156 of the Customs Act. Two petitioners Abdul Rauf, General Manager and Abdul Sattar, Accountant of Liberty Mills Ltd., were arrested by the Customs authorities presumably on the basis that rebate application had been signed/filed by them. They were released on 7-5-1978. The petitioners 3 and 4 are the directors of the Companies. They were also granted bail by the learned Special Judge (Customs and Taxation), Karachi.
2. ' The case was investigated as a result of which an opinion was expressed by the investigating authority that there was no sufficient evidence to justify the prosecution of the petitioners before the learned Special Judge for offence under clause (77) of section 156 of the Customs Act. Instead it was thought necessary to proceed against them under clause (14) of section 156 of the Customs Act. Accordingly, an order of discharge was sought from the learned Special Judge, who did not accept the report and by the order dated 1-8-1979 observed that "the question as to whether the wrong shipping bills were filed due to inadvertent mistake or not can be judged only after the evidence is recorded in the Court. Prima facie the evidence shows that wrong shipping bills were filed which did cause wrongful gain to the mills and wrongful loss to the public exchequer.
3. Therefore, prima facie offence under clause (77) of the section 156(1) of the Customs Act, appears to be made out agaiost the accused". Accordingly disagreeing with the opinion of the Investigating Officer and in exercise of the power vested in the Court under clause (11) of section 161 of the Customs Act, it was directed that "the trial of the accused under clause (77) of section 156 of the Customs Act, 1969, to be proceeded with". This order was challenged in the High Court through Special Criminal Revision No, 6 of 1979 which having been dismissed by a learned single Judge by the order dated 5-9-1979, the petitioners have impugned the same through this petition for special leave to appeal.
4. ' Mr. A. K. Brohi, learned counsel for the petitioners, has raised two-fold contention: that the learned Special Judge was not competent to take cognizance; and two, that in any case the order passed by him suffers from other serious legal and factual infirmities.
5. ' It has been contended that under section 185-A, the learned Special Judge could have taken cognizance either on the report of an officer of Customs Department or Police Investigating Officer or any other authorised officer) as envisaged in sub-clause (a) of subsection (1) thereof or upon a complaint/information of facts constituting the offence or upon his own knowledge, as provided in clauses (b) and (c) respectively. There was no positive report of the investigator seeking prosecution of the accused nor there was any complaint or other information visualised in clauses
(a) and (b); while the learned Special Judge does not seem to have taken cognizance on his own knowledge under clauses (c) of section 185-A(1). Therefore, the order passed by him was without competence. When questioned as to whether a negative report by the Investigating Officer expressing the opinion that upon the facts of the case no offence was constituted, could not be made basis of an order taking cognizance under clause (a), learned counsel answered that it was not possible. Same was his reply in connection with the interpretation of a parallel provision contained in clause (b) of section 190(1) of Code of Criminal Procedure.
6. After some arguments it was discovered that this Court finally settled the controversy in this behalf, in Falak Sher and another v. The State (1), In that case it was held that the action of a Court taking cognizance of an offence on a negative report of the police (as in this case), is covered by clause
(b) of section 190(1) of the Criminal Procedure Code; not withstanding the fact that the police does not want to proceed against the accused. While reaching the above conclusion of relevant provisions contained in section 173 of Cr. P. C. Which empowered the Magistrate, on the submission of report by the police, to discharge the accused of his bond "or otherwise as he thinks fit," were also taken note of. An observation in an earlier decision of this Court in the case of Sardar Ali and others v. The State P. S. L. A. No, 56 of 1966 was also referred to; namely, that referrence to section 173, Cr. P. Which prescribes the details that must go into a police report of the relevant kind, shows that the requirements are of a factual nature so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as an accused of the offence reported upon. It also needs to be mentioned in this behalf that the judgment of the Lahore High Court in Muhammad Nawaz Khan v.
7. Noor Muhammad and others (2), was also mentioned with approval.
8. ' As the question raised in connection with nature of the police report and consequences thereof, by the learned counsel, found complete answer in the ruling of this Court, he tried to contend that the same should not be considered as having, in any way, settled the controversy, because, as he put it, the ruling is against the language of the statute, namely, section 190, Cr. P. C. He requested for re-opening and re-examination of the same question by this Court, may be in a larger Bench.
9. This has already been done in the case of Muhammad Akbar v. The State and another (3). It was re-affirmed that a Magistrate could, irrespective of the opinion of the investigating police officer, take cognizance, if upon the material before) {{FOOT NOTE}} (1) PLD 1967 SC 425 - (2) PLD 1977 Lah. 176 (3) 1972 SC MR 335 {{FOOT NOTE}} ' him he finds prima facie case made out against the accused. The decision in the case of Falak Sher and another v. The State was noted, as supporting this view. After hearing the learned counsel on this point we see no compelling reason for re-opening and review of the above decision.
10. In the present case the relevant provision contained in sub-clause (a) of section 185-A (1) of the Customs Act would be read and interpreted on the same lines as clause (b) of section 190(1), Cr. P.
11. C. Has been interpreted in the above-noted rulings of this Court. It dos not require that the report, of the investigator should necessarily contain facts and or opinion against' the accused, so as to enable the Court to take cognizance of the offence, against him. Further support for this view can also be found from the language used in subsections (10) and (11) of section 161 of the Customs Act.
12. It has been provided that a Special Judge, to whom a report under subsection (1) has been submitted by the investigating officer (expressing the opinion that "there is no sufficient evidence or reasonable ground for suspicion" against the accused and for that reason seeks his discharge) may, notwithstanding the said report and opinion "after the perusal of the record of the inquiry and hearing the prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such a person, proceed with his trial".
13. ' On merits, learned counsel argued that the advantage gained by the petitioners after a thorough investigation by the investigating agency for about an year, has been taken away by the order of the learned Special Judge without application of mind to the essential features of the case. On the contrary, it is contended, that a serious factual mistake has been committed which should not have been ignored by the learned Judge in the High Court. It has been argued that the learned Special Judge had ignored a vital circumstance that according to the investigating agency the aggravated offence, involving higher punishment under clause (77) of section 156 of the Act (which requires that the accused should have done the act, knowing or having reason to believe" that the same was false in material particulars or there should be element of deceit or fraud), could not be proved by evidence and that a lesser offence under clause (14) of section 156 read with section 32 which is dealt with departmentally, would be constituted. We do not agree that the learned Special Judge was oblivious of the above factors. He noticed this aspect of the matter when pointing out a contradiction in the context of the case that on the one hand the investigator was of the view that there was "no sufficient evidence for the trial" but at the same time departmental action under the Customs Act was being taken against the accused. We do not propose to deal with the correctness or otherwise of the opinion expressed by the learned Special Judge in this behalf because that might prejudice the either side, The fact however, remains that he was conscious of the point being raised in this Court. Considerable stress has also been laid on another point; namely, that the learned Special Judge committed a mistake of fact in reaching his conclusion on the factual side; namely, that while only one of the two sister concerns had in fact received the over payment of the rebate, it was noted in the order that both of them had received it. No doubt, according to the facts stated, the mistake is there. But that by itself cannot be considered as enough to make D out a fit case for interference by the High Court in revisional jurisdiction or by this Court in its jurisdiction under Article 185 of the Constitution The learned Special Judge saw the report of the investigating agency, examined the record and heard not only the prosecutor (as the requirement of law but also the defence counsel. The mistake pointed out by the learned counsel appears to be on account of almost same facts and circumstances involved in the matter relating to two separate but sister concerns. The learned Special Judge did consider the plea of "inadvertent mistake" and also the fact that "the accused returned the excess amount themselves".
14. In these circumstances, therefore, the mere fact that in connection with one of the two concerns, it was mentioned that it did receive the amount though only claim had been submitted by it, would not render the order of the learned Judge either illegal or otherwise so improper as to justify interference. The argument of the learned counsel that the question qua the mistake being inadvertent or otherwise should have been determined on the material and report before the learned Special Judge and should not have been left for the stage when evidence was to be recorded, is also without any force. As already observed, the learned Special Judge saw the report, perused the record and heard the parties he also noted the circumstances prima facie going against the accused. In that context his approach was correct that if prima facie a case for summoning the accused to stand the'trial had been made out, the detailed examination of the defence plea regarding "inadvertent mistake" would again be examined after recording of the evidence. No justification has been made, out for interference on merits.
15. ' An apprehension has been expressed on the petitioner's side that in view of the opinion already expressed by the learned Special Judge, it might be difficult for him to do justice in or find it embarrassing to decide this case. Therefore, the question of transfer merited consideration. We point out that this aspect may be brought to the notice of the learned Special Judge and or to the forum competent to transfer the case. With these observations we find no merit in this petition and the same is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.