1. ' This is an application filed under section 561-A, Cr. P. C. Invoking the inherent powers of the High Court for quashment of the proceedings against the applicant pending in the Court of Special Judge (Customs and Taxation) Karachi for offences under section 2 (s) read with section 156 (1) (8) of the Customs Act, 1969.
2. ' Brief facts are that the applicant is an Indian National and carries on his business in jewellery and precious stones in Honkong. On 29-5-79 at about 5 a.m. The applicant was spotted by the Customs Officer waiting nervously near the plant quarantine at Karachi Airport holding a hand bag. Acting on spy information, the Customs Officer inquired from the applicant whether he was in possession of any contraband precious stones to which the applicant replied in negative..
3. Thereafter Custom Officer asked the applicant to produce his hand bag for examination on which the applicant rushed towards the exit gate but was eventually intercepted and his hand bag was searched and found to be containing contraband precious stones, which were seized. During the investigation it was found that the applicant was a transit passenger and had in his possession air ticket, which indicated that he was on his way to Kuwait. He had come to the Karachi Air Port by Lufthansa flight at about 5 a.m. And was waiting to take connecting flight of Kuwait airways. The defence of the applicant is that he was on a business trip to Kuwait and he had to break the journey at Karachi Airport because there was no direct flight to Kuwait from Hongkong. He was carrying the articles seized to Kuwait for which he produced a number of documents including invoices and insurance papers. He had also produced documents to prove that he had a confirmed seat on the connecting flight by Kuwait Airways and had no visa for Pakistan nor any such endorsement was found in his passport to show that he had any intention of staying in Pakistan. He has admitted being in possession of the seized articles but claims that he was carrying them to Kuwait and has been falsely implicated in this case by Customs authorities.
4. ' The point that arises for consideration in this case is whether this application under section 561-A, Cr. P. C. Filed in the High Court is competent in view of the fact that the proceedings in question are pending in the Court of Special Judge (Customs and Taxation), Karachi, which is a creature of separate statute and has been constituted under the Customs Act, 1969, hereinafter to be referred as the said Act. The said Act bars the jurisdiction of other ordinary Courts to give exclusive jurisdiction to the Special Judge for trial of offences mentioned therein. It is contended on behalf of the applicant that section 561-A, Cr. P. C. Gives inherent powers to the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice and this jurisdiction which is extraordinary in nature as to be exercised in appropriate cases unless such exercise of the inherent jurisdiction is expressly barred by some statute. In this context it will be necessary to refer to the relevant provisions of the said Act which relate to the jurisdiction. Section 185-A of the said Act empowers the Special Judge so appointed under the Act to take cognizance of any offence punishable under this Act. Section 185-B of the said Act gives exclusive jurisdiction to the Special Judge and bars the jurisdiction of other Courts in respect of offences triable under this Act. Special Appellate Court has also been set up under section 185-B(c) of this Act and is empowered to entertain, hear or decide any application, petition or appeal under Chapters XXXI and XXXII of the Code of Criminal Procedure, against or in respect of any order or direction made under this Act. It may be pointed out that Chapter XXXI relates to the provisions of appeal and covers sections 404 to 431 of the Code. Chapter XXXII relates to reference and revision and covers sections 435 to 442.
5. Further section 185-B(d) of the Act provides that no Court other than Special Judge or the Special Appellate Court shall entertain any application or petition or pass any order or give any direction under Chapters XXXVII, XXXIX, XLIV or XLV of the Criminal Procedure Code, Chapter XXXVII relates to direction of the nature of habeas corpus, Chapter XXXIX relates to bail, Chapter XLIV relates to transfer of criminal cases and Chapter XLV relates to irregularities in the proceedings. The learned counsel for the applicant has contended that under this Act the jurisdiction of other Courts is barred with regard to the matters which are covered by the Chapters enumerated above and the inherent jurisdiction of the High Court is not covered by any one of thdse Chapters and is covered by Chapter XLVI, which is not included in the chapters Mentioned above in respect of which the jurisdiction of other Courts has been expressly barred. It may be pointed out that section 185-C of the said Act provides that the provisions of the Code of Criminal Procedure, as far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings in the Court of Special Judge and further provisions of Chapter 22-A, which relates to section 265 from A to N of the Criminal Procedure Code, shall also apply to the proceedings by the Special Judge under this Act.
6. This Chapter is new and has been added by Law Reforms Ordinance, 1972. By reading these provisions mentioned above together, it appears that the intention of the Legislature was not to bar the jurisdiction of the High Court exerciseable under section 551-A under this Act. Had such intention been there, then Chapter XLVI would have been included in the Chapters in respect of which the jurisdiction of other Courts has been specifically barred under section 185-B (d) of the said Act. Furthermore the powers of the Special Appellate Court have also been defined to be the same as contained in Chapters XXXI and XXXII of the Code which relate to filing of the appeal and revision as stated above. This also indicates that although the revisional jurisdiction is conferred upon the Special Appellate Court but no mention is made about the section 561-A, Cr. P. C. Which is not expressly barred and such powers are not expressly conferred upon the Special Appellate Court. It is further contended that jurisdiction under section 561-A, Cr. P. C. Of the High Court is co- extensive with a revisional jurisdiction conferred upon the Special Appellate Court as mentioned above and powers given to the Special Judge under section 265-K of the Criminal Procedure Code are no bar to the exercise of the jurisdiction by the High Court under section 561-A of the Code.
7. Section 265-A of the Code envisages that nothing in this chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of accused being convicted of any offence. This section is included in Chapter XXII-A of the Code which has been made applicable to the proceedings in the Court of Special Judge by section 185-C (I) of the said Act. The Chapter mentioned above relates to the mode of trial before High Court and Court of Session. Section 265-K is substantially similar to section 249-A of the Criminal Procedure Code and the latter relates to the procedure of trial of summons cases by the Magistrate. Section 249-A of the Code provides that nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of accused being convicted of any offence.
8. ' Since sections 265-K and 249-A of the Criminal Procedure Code are analogous to each other, reference can conveniently be made to the decision of the Lahore High Court in case of Din Muhammad v. Muhammad Sharif and another (1) in which it is held that powers of the trial Court under section 249-A and of the High Court under section 561-A, Cr. P. C. Are coextensive with each other and since power of the trial Court is co-existent with the power of High Court first resort is to be made to remedy in the lower Court except when special and exceptional circumstances exist to warrant interference by the High Court for exercise of jurisdiction under section 561-A directly ; Reference was also made by Mr. A. K. Brohi to the case of Khushi Muhammad and others v. The State (2) in which it is held as under :- "However under the law, as it now stands, the trial Magistrate can acquit the petitioners under section 249-A, Cr. P. C. At any stage of the proceedings and in these circumstances the most appropriate remedy for the petitioner appears to be to request the trial Magistrate to consider their case under the above provisions of the Law. The learned trial Magistrate, should, whereupon, apply his mind to this aspect of the matter and in the first instance, before proceedings any further with the proceedings, decide whether the petitioners are entitled to be acquitted in terms of section 249-A, Cr. P. C."
9. ' It is further submitted by the learned counsel that the Supreme Court has not held specifically that the High Court has no jurisdiction under section 561-A, Cr. P. C. In the said judgment and relied upon the observation made by the Supreme Court in that judgment which reads as under "We further observe that the order of the High Court was passed on
(1) 1979 P Cr. La J 59 (2) 1979 SCM R 94 26-8-1978 and on the material then available on the record no objection could legitimately be taken to the order of the High Court dismissing the quashment petition. It is only on the 20th September 1978, after the statement of Abdul Ghani (P. W. 5) was recorded, that the argument that there is no likelihood of the petitioners being convicted and their continuing prosecution would be an abuse of the process of the Court has become available. The order of the High Court cannot, therefore, be said to be erroneous and liable to be set aside in the present proceedings."
10. ' Reliance was placed by the learned counsel for the applicant on the decision in case of Saifuddin v. The State (1). In that case proceedings were pending under section 156(8) (77) (89) of the Customs Act, 1969 in the Court of Special Judge (Customs and Taxation), Karachi, which were called in question and jurisdiction under section 561-A, Cr. P. C. Was exercised by the High Court and the proceedings pending in the Court of Special Judge were quashed on the ground that the said proceedings were hit by provisions of section 403, Cr. P. C. As the accused was previously prosecuted and acquitted by the competent Court in respect of the articles recovered from his possession., ' The upshot of the above discussion is that jurisdiction of the High Court under section 561-A, Cr. P.
11. C. Is available as it is not expressly barred by the Customs Act, 1969 and is co-extensive with the powers of the trial Court under the said Act under section 265-K, Cr. P. C. And first resort may. Be made to the remedy available in the Court of Special Judge and only in exceptional and special circumstances High Court would exercise jurisdiction under section 561-A, Cr. P. C.
12. ' Mr. A. K. Brohi contends that in the instant case such exceptional circumstances do exist to warrant exercise of jurisdiction by the High Court under section 561-A, Cr. P. C. As the applicant is a foreign national and was taking the consignment in question to Kuwait and further that he has documentary evidence to prove his assertion and he has been stranded in Pakistan because of his involvement in this case which may take a long time for disposal and it would result in an irreparable financial loss to him and further the proceedings amount to abuse of the process of Court which are bound to end in acquittal. On the other hand it was contended by Mrs. Rashida Patel that even if the applicant is in possession of documentary evidence to support his assertion that he was a transit passenger and the contraband articles were meant to be carried to Kuwait but he had no business even as a transit passenger to be where he was found by the Customs authorities and his conduct in making a false statement with regard to the contents of his hand bag to Customs Officer and his attempt to run towards the exit gate is sufficient to prove that he attempted to smuggle into Pakistan contraband Jewels and precious stones. In these circumstrnces this factual aspect of the case cannot be decided without recording of evidence. In the instant case no evidence has been recorded so far and only charge-sheet has , been presented. In the instant case the guilt or innocence of the applicant will eventually depend on the totality of the facts and circumstances, which could be proved or disproved when the evidence is recorded in the trial Court. Prosecution must be allowed to substantiate the allegation by adducing evidence in the trial Court. Interference at this stage when the evidence is not recorded will give the B impression of stifling of criminal prosecution. This view finds full support
(1) 1979 P Cr. L J 258 in the case of Haqnawaz v. Muhammad Afzal and others (1). In the circumstances, it would be appropriate that the remedy available in the trial Court may be taken recourse to.
13. ' For the reasons stated above the application under section 561-A, Cr. P. C. Is dismissed as premature with a direction to the latned Specia Judge to record evidence of the material witnesses proposed to be produced by the prosecution in support of the charge within 15 days from the date of this order and it is open to the applicant to apply for remedy available in they trial Court as permitted under law, if so advised.
(1) PLD 1967 SC 354