' On 30-4-1978, a first information report was registered at the Customs House, Karachi, against the petitioners under section 156(1), clause (77), Customs Act, 1968, by Mr. Rahim Bux, Senior Preventive Officer, Customs House, Karachi. It was alleged in this F. I. R. That 2 rebate applications were made by petitioners Nos, 1 and 2 for the benefit of petitioners Nos, 3 and 4 on 4-1-66 and 6-1-77 claiming Rs, 1,24,883.65, and Rs, 1,23,461.97, respectively alongwith copies of the shipping bills. It was disclosed that preliminary investigation reveals that the aforesaid shipping bills were fraudulently inserted with the figure "3" while describing ends per yard of the goods exported so that instead of 29 and 42 ends the figures read as 329 and 342. It was alleged that this insertion of figures was made in the aforesaid documents to fraudulently claim enormous amount of rebate.
2. After prolonged investigation on 10-6-79 a report was submitted in the Court of Special Judge (Customs & Taxation), Karachi under sub-clause (101 of section 161 of the Customs Act, 1969, stating that after perusing the investigation report the higher authorities of the Customs were of the opinion that there was no sufficient evidence on record against the petitioners for trial in court and therefore, the accused persons may be discharged. Upon receiving the aforesaid report the learned Special Judge called for the papers and the record of the case. After perusing the same and hearing the Investigation Officer on behalf of the prosecution as well as the defence counsel, he passed the impugned order dated 1-8-79 whereby he recorded his opinion that there was sufficient ground for proceeding against the petitioners and directed the prosecution to produce evidence for their trial.
3. The petitioners being aggrieved with this order have challenged the same in this revision.
4. It may be mentioned that section 185-A of the Customs Act lays down that cognizance of any offence punishable under the said Act can be taken by the Special Judge (a) upon a report in writing made by, inter alia, an Officer of the Customs or an officer-in-charge of a Police Station, or
(b) upon a complaint or information made or communicated by any person or (c) upon his own knowledge during any proceedings before him under the Act or under the Prevention of Smuggling Ordinance, 1977. By virtue of section 185-C the provisions of the Code of Criminal Procedure, 1898, so far as they are not inconsistent with the provisions of said Act, have been made applicable to the proceedings of the Court of Special Judge. It is, therefore, clear wherever provision exists in the Customs Act upon any matter as regards the procedure governing the cognizance and trial by the Court of Special Judge which is inconsistent with the provisions of the Code of Criminal Procedure, such provision shall prevail as against the latter. Now subsections (10) and (11) of section 161 of the Customs Act are special provisions having no parallel in the Code of Criminal Procedure. Since the question raised in the present case relates to the exercise of jurisdiction under the said provision by the Special Judge, it will be advantageous to set them out as under:- "(10) If the Officer of the Customs or the Officer-in-Charge of a Police Station, as the case may .Be, after holding an inquiry as aforesaid, is of the opinion that there is no sufficient evidence or reasonable, ground for suspicion against such person, he shall release him on his executing a bond, with or without sureties as the Officer may direct, to appear as and when required, before the Special Judge, may make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.
(11) The Special Judge to whom, a report has been made under subsection (10), may after the perusal of 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 person, proceed with his trial and direct the prosecution to produce the evidence."
6. It will be observed from the perusal of subsection (10) that a Customs Officer can move the Special Judge for the discharge of an accused by making a report if he "is of the opinion that there is no sufficient evidence or reasonable ground for suspicion" against the accused. It is then the jurisdiction of the Special Judge to agree with such report and discharge the accused or proceed with his trial and direct the prosecution to produce the evidence "If he is of the opinion that there is sufficient ground for proceeding against such person".
6. In the impugned order after perusing the record of the case the learned Judge made the following observations: "The evidence collected prima facie shows that accused Nos, 3 and 4 are the Directors and shareholders of this, mills, it is contended by the learned Defence Advocate, that wrong declaration was filed inadvertently through mitsake and that the accused returned the excess payment themselves. 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. Therefore prima fuck offence under clause (77) of section 156(1) of the Customs Act, appears to be made out against the accused."
7. It was argued on behalf of the petitioners that the learned Judge passed the impugned order in gross misconception of the admitted facts. In this connection it was pointed out that the rebate applications were submitted on 4th and 6th of January, 1977, making claims for Rs, 1,23,461.97, and Rs, 1,24,883.65. However, upon detecting the mistake on 25-1.77 a cheque for Rs, 95,443.21, was despatched to the Collector of Customs being the amount paid in excess 'of the actual claim and subsequently a letter requesting for the withdrawal of the claim together with reduced claim for Rs, 28380.77, was filed on. 3,2-77 before any payment was received. The petition filed in this Court also contains these statements that some sort of payment was received in connection with rebate applications before 25-1-77 which necessitated the tendering of cheque for Rs, 95,448.21, as the amount paid in excess of the actual claim. Prima facie, ,therefore, no grieveance can be made regarding the observation of the learned Special Judge that there was prima facie evidence-of wrongful loss to the public exchequer.
8. Learned counsel next invited my attention to the case of Mir Hassan v. Tariq Saeed (1), which was case of withdrawal from prosecution under section 494, Cr. P. C. While elucidating powers of the Court under the aforesaid provisions it was observed that the discretionary power having been vested in the public prosecutor by statute, the Court acts so to say, in a supervisory capacity, to see that the power is not abused in any manner or exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds- to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. A note of warning was sounded by their Lordships by pointing out that "at the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a- judicial trial. Any such attempt would amount to throttling the prosecution or interfering with the ordinary course of justice",
9. These observations were made, as already pointed out, in relation to the provisions of section 494 of the Criminal Procedure Code which provide for withdrawal from the prosecution by the public prosecutor with the consent of the Court. This section does not provide for the guidelines with reference to which discretion vested in the Court for according or withholding the consent, can he exercised. Notwithstanding the absence of such guidelines their Lordships made the aforesaid observations. Compared with section 494, the provisions of subsections (10) and (11) stand on much higher footing. Under these provisions the presecution has no right to decline to prosecute an accused person for any other reason except for the reason that there is no sufficient evidence or reasonable ground for suspicion against such person. Obviously subsection (1i) empowers the Special Judge to take cognizance of the offence and try the accused if he is of the opinion that sufficient ground exists for proceeding against the accused. If, therefore, it will be improper for a Court to permit withdrawal of an accused upon detailed analysis of the evidence, the same exercise cannot be permitted while exercising powers under subsection (11) of section 161. The petitioners seek B from this Court an appraisal of the facts of the case of which the learned Special Judge has chosen to take cognizance, in order to show that no offence is made out against them. I am of the considered opinion that this will amount to pre-empting the trial Court from exercising its function and will result in interference with the ordinary course of justice.
10. It was lastly contended that keeping in view the object of the Customs Act, namely, the levy and collection of custom duties the matter with regard to withdrawal from prosecution solely lies within the discretion of the Customs Authorities since the recovery of the revenues is the concern of the Governments. It was argued that the Court must normally accept the decision of the Customs Authorities not to prosecute: an accused person. 1 am unable to accept this submission in view of clear provisions of subsection (11) of section 161 which clearly vest the Court with the jurisdiction to discharge, the accused only if there is no evidence in support of the charge or
(1) PLD 1977 SC 451 there is no ground to proceed with the same. The jurisdiction is, therefore, exerciseable objectively on the materials placed before the Court and the decision of the Customs Authorities cannot be made the basis for passing the order of discharge.
11. For the foregoing reasons I see no merit in this revision and dismiss it in limine.