1. ' BIN YAMIN, J.-This order will dispose of the above noted Criminal Revision Application No,100 of 1999, filed on behalf of the then Senator Asif Ali Zardari son of Hakim Ali Zardari under sections 435 and 439 read with section 561-A Cr.P.0 and Criminal Misc. Application No,78 of 2002 filed on behalf of S. Wajid Shamsul Hasan, under section 561-A, Cr.P.C. For quashment of the proceedings. Both these applications are filed for quashment of F.I.R. No,2/1997, F.I.A. State Bank Circle, Karachi dated 16-2-1997, under sections 409/420/109, P.P.C, Section 156(1)(8)(14) Customs Act, 1969 read with Section 5(2) of Prevention of Corruption Act, 1947. As common questions of law as well as of facts are involved in these applications and furthermore these are filed for quashment of one and the same F.I.R./Cr.Case therefore, I intend to dispose of these applications with this common order.
2. ' Brief facts of the case are that on .16-2-1997 F.I.A/SIU Islamabad registered F.I.R. No,2/1997 against applicants/accused and other under sections 409/420/109, P.P.C. Section 156(1)(8)(14) of Customs Act, 1969 read with Section 5(2) of Prevention of Corruption Act, 1947. It is alleged that during the course of Inquiry No, 45/1996, conducted by F.I.A, State Bank Circle, Karachi. It transpired that applicant/accused Asif Ali Zardari, Exh-MNA/Federal Minister for Environment that Foreign Investment and spouse of Ex-Prime Minister of Pakistan by abusing his official position as holde; of public officer in collusion with the then Managing Director, P.I.A. Namely Air Vice-Martial (Retd.)
3. Farooq Umer, the then Deputy Collector Customs, Airport, Karachi, Syed Nazeer Shah and others, by abusing their official position as public servants intentionally deviated from the settled procedures/rules relating to the Export/Airlifting of huge consignment comprising of 8 wooden packages, without paying prescribed duties/taxes and freight chargeable thereon sent the aforesaid boxes to London. That during the inquiry, it was further revealed that the aforesaid consignment of 8 wooden boxes was cleared by one Paul John Keating, 15-Crove Road. Lutol Budford Shire at London, illegally authorized by accused Wajid Shamsul Hasan, Ex-High Commissioner of Pakistan at London, vide his authority letter dated 2-5-1996, being personal belongings of the applicant and thereby he misused his official position as High Commissioner at London and thereby caused wrongful loss to the Government exchequer by deriving corresponding wrongful gains to himself and other concerns and thus the applicant and the above named accused committed offences of cheating, criminal breach of trust, abuse of official position, smuggling, evasion of tax, customs duty, etc, punishable under sections 409/420/109, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
4. ' As a result of the Inquiry No,45/1996, conducted by the aforesaid authorities, instant case being F.I.R. No,2/1997 against the applicant/accused and others was registered under sections 409/420/109, P.P.C., Section 156(1)(8)(14) Customs Act, 1969 read with section 5 (2) of Prevention of Corruption Act, 1947.
5. ' On completion of the investigation, interim challan against applicant/accused and others was filed by F.I.A. In the Court of Special Judge (Central) II, Karachi on 4-3-1997. As the F.I.A. Authorities in spite of grant of time for filing final challan failed to do so therefore, the interim challan filed on 4- 3-1997 was treated as a final challan under the order of the Court dated 27-5-1997. Thereafter, on 30-6-1997 supplementary challan was submitted by F.I.A. Wherein name of accused Air Vice- Martial (Retd.) Farooq Umer, the then Managing Director, P.I.A. Was deleted and name of Managing Director, P.I.A. M. Nawaz Tawana was added.
6. ' While proceedings with the case, the Court of Special Judge (Central) II, Karachi framed charge (Exh.9) against applicants/accused and co-accused S. Nazeer Shah on 12-9-1997, under sections 420/109, P.P.C. Read with section 5(2) Act-II of 1947.
7. ' Applicant/ accused and other pleaded not guilty and claimed to be tried.
8. ' Prosecution in support of its case examined P.W. Nisarullah Baloch, a diplomat as Exh.24 on 23-9- 1997, his cross-examination was reserved on that, date and subsequently on 22-10-1997 he was recalled and was cross-examined by advocate for applicants/accused and others. P.W. Abdul Rasheed Baloch, Customs Officer was examined on 31-10-1997 (Exh.36), who produced letter dated 31-10-1997 as Exh.37.
9. ' It is further stated that on 6-11-1998 another supplementary challan was filed by F.I.A, wherein the name of accused Syed Nazeer Shah, Deputy Collector of Customs was placed in column No,2.
10. ' From the perusal of the case papers, it reveals that an application under section 249-A, Cr.P.C.
11. Was moved on behalf of the applicant/ accused Asif Ali Zardari with the request that he may be acquitted from the charge of this case as there is no possibility of his being convicted of any offence. The Court of the Special Judge, (Central) II, Karachi deferred the passing of order on the aforesaid application on the ground that first evidence of P.W. Ghulam Hussain Burghuri may be recorded in this case and thereafter, final order will be passed on application under section 249-A, Cr.P.C. Vide order dated 17-9-1999.
12. ' It is also stated that on 22-10-1997, applicant/accused Asif Ali Zardari submitted an application under section 249-A, Cr.P.C. For his acquittal. During the course of arguments of this application, prosecution filed another Cr. Application under section 540-A, Cr.P.C. Before the trial Court with the request that nine witnesses whose names were given in the said application may be called as Court witnesses. The trial Court by its consolidated order dated 6-12-1997 rejected the application of applicant/accused. Asif Ali Zardari filed under section 249-A, Cr.P.C. And allowed the application for summoning nine witnesses as Court witnesses. Feeling aggrieved with the order of the Special Judge (Central) II Karachi dated 6-12-1997 allowing the Prosecution's application under section 540-A, Cr.P.C. For summoning nine witnesses. Applicant/ accused preferred Cr. Revision Application No,129 of 1997 before this Court. The said revision application was allowed by this Court vide order dated 23-9-1998, whereby order dated 6-12-1997 passed by Special Judge (Central) II Karachi was set aside. It is further stated that Managing Director, P.I.A, M. Nawaz Tawana, whose name was substituted by F.I.A. In place of accused Air Vice-Martial (Retd.) Farooq Umer, Managing Director, P.I.A. In supplementary challan dated 30-6-1997 filed quashment application before the honourable High Court being Cr. Misc. No,225 of 1997. So also Syed Nazeer Shah, whose name was shown in column No,2, approached separately to this Court for quashment of the proceedings initiated against him vide his application Cr. Misc. No,432 of 1998. The proceedings against above named two accused were quashed by this Court vide orders dated 28-4-1999 and 1-11-1997 passed in Criminal Miscellaneous No,432/1998 and Cr. Misc. No,225/1997 respectively.
13. ' Instant revision application has been filed by applicant/accused Asif Ali Zardari with the request that the order dated 17-9-1997 passed by learned Special Judge (Central) Karachi in case No,4/1997. State v. Asif Ali Zardari and others, whereby he rejected the application under section 249-A, Cr.P.C. May be set aside and furthermore, this revision application may be allowed and proceedings against applicant/accused Asif Ali Zardari may be quashed. Similarly, accused S. Wajid Shamsul Hasan through his Criminal Miscellaneous. Application 78/2002 has requested for quashment of Criminal Case No,4/1997 registered under sections 409/420/109, P.P.C. Section 156(1)
14. (8)(14) of Customs Act read with section 5(2) 47 of Prevention of Corruption Act, 1947, against him and others, ' Heard advocate for applicants/ accused and perused case papers.
15. ' Learned counsel for applicant/ accused Asif Ali Zardari submitted that he is innocent and has falsely been implicated in this case due to political vendetta by the then regime. To support his contention, he submitted that the alleged incident took place in the month of May, 1996 but the F.I.R. Of the case was lodged on 16-2-1997 i,e, after about 9/10 months of the alleged incident. That no explanation for this long delay has been furnished. That this shows that after due deliberation and consultation, the F.I.R was lodged to cause harassment of the applicant! Accused. That this single fact is sufficient to show that this case was registered against the accused on false ground after long delay to cause him mental torture and harassment.
16. ' It is further contended that P.W. Abdul Rasheed Baloch, a Customs Officer in his statement recorded in the trial Court on 31-10-1997, Exh.36 has admitted that the consignment in question consisted of food stuff as well as house hold articles which were not liable to pay any customs duty for exporting of these articles. That when the prosecution's witness has himself admitted that the articles exported through this consignment were not liable to pay any tax/ duty then the question of causing wrongful loss to the exchequer does not arise, hence, the allegation that applicant/ accused Asif Ali Zardari in collusion with other accused caused wrongful loss to national exchequer and wrongful gain to himself is un-founded and baseless. That the allegation is levelled only to make out a false case against him.
17. ' He further stated that nothing is available on the record to show that applicant accused has anything to do with the consignment sent to the London. That his contention finds support from the statement of P.W. Nisarullah Baloch recorded in Court on 23-9-1997 Exh.24 who has categorically stated that in the third week of April, 1996, he received instructions on telephone from the office of Chief of Protocol, Protocol Officer Afzal Shah; who informed him that a consignment from Bilawal House (Prime Minister's House) was to be dispatched to High Commission at London. That said Afzal Shah had further instructed that he should seek instructions from Urs for detail of the consignment, who has Incharge of the Bilawal House. That he then directed Mumtaz A, Lahori to contact Urs. That the said Urs informed him that 8 wooden boxes were to be exported to London.
18. That this P.W. Further admitted that the consignment consisted of the luggage which was owned by Urs. That this witness has further admitted that the said consignment was sent to London and its fare amounting to Rs,4,00,000 was paid to the P.I.A. As transportation charges. Thus the allegation of the prosecution that it was applicant/accused Asif Ali Zardari who by exporting the consignment and taking undue benefit of his status caused wrongful loss to the exchequer is baseless, false and concocted one. That in view of the admission of P.W. Nisarullah examined in Court, it has clearly come on the record that the household articles allegedly sent to London neither belonged to applicant/ accused Asif Ali Zardari nor the same were sent by him to London. On the contrary from the material available on the record it is established that the articles sent' to London belonged to Urs and he was the person who sent the same to London. The learned counsel while continuing his submissions stated that though as per case of the prosecution brought on the record, the consignment sent to London, was sent there at the instance of Urs and the same also belonged to said Urs, but it is strange enough that he was neither shown as an accused in the F.I.R. Nor has been challaned in the Court as an accused. That the applicant/accused Asif Ali Zardari has been falsely entangled in this case to victimize him for his political ideas, otherwise there is nothing on record to connect him with the instant case.
19. ' He further argued that proceedings against co-accused M. Nawaz Tawana, Managing Director, P.I.A. And Syed Nazeer Shah, a customs officer regarding whom it is alleged that applicant/ accused by their abetment had exported the consignment of 8 wooden boxes to London have already been quashed by this Honourable Court under its orders dated 1-11-1997 and 28-4-1999 respectively Thus when the co-accused has been acquitted, there is no justification for keeping this case pending against present two accused, therefore, he submitted that instant revision applications filed on behalf of the applicants/accused may be allowed and proceedings initiated against them on the basis of F.I.R. No,2/1997 and Criminal Case No,4/1997 registered under sections 409/420/109, P.P.C. 156(1)(8)(14) Customs Act read with section 5(2) of Prevention of Corruption Act, 1947, pending before the Court of Special Judge, (Central) II, Karachi may kindly be quashed.
20. ' Learned Dy. Attorney General, Mr. Rizwan Ahmed Siddiqui appearing for prosecution has not controverted the factual position of the case as argued by the learned counsel for the applicants/ accused. He has also not disputed the fact regarding admissions made by P.Ws namely, Abdul Rasheed Baloch and Nisarullah examined in Court. He also admitted that proceedings against co- accused M. Nawaz Tawana, Managing Director, P.I.A. And Syed Nazeer Shah, a Customs Officer have been quashed by this Court. While concluding his arguments, he submitted that these two revision applications may be decided on the basis of material available on record.
21. From the afore-noted discussions, it is clear that prosecution has miserably failed to establish prima facie case against the accused. In holding this opinion, I am supported from the statement of P.W. Nisarullah, Exh.24 a diplomat, who deposed that the consignment in question consisted of food and household articles. Furthermore, P.W. Abdul Rasheed Baloch, a Customs Officer in his deposition Exh.36 has stated that the consignment consisted of food and household articles and was not liable to any customs duty. Furthermore, it has also come on the record that neither the consignment belonged to applicant/ accused Asif Ali Zardari nor the same was sent by him to London. On the contrary, it has come on the record that the consignment in question was the property of one Urs and he was a person who had sent the same to London. It has also come on the record through the mouth of the P.W. Nisarullah that fare amounting to Rs,4,00,000 for transportation of the consignment was also paid to P.I.A. There is nothing on the record to show that applicants/accused are involved in any manner with the commission on the alleged offence or they are persons who violated any relevant law at the time of sending the consignment in question. It appears that applicant/ accused Asif Ali Zardari has been involved in this case on false ground to victimize him for his political ideas. So also, co-accused S. Wajid Shamsul Hasan has not violated any law, but he was involved in this case on false ground for the reasons best known to the prosecution. The material witnesses of the prosecution have already been examined in this case and if the remaining witnesses are examined in Court, they are not likely to improve the case of the prosecution against the accused. There is no possibility of the conviction of accused at the conclusion of the trial, as it is a case of no evidence. Therefore, in my opinion it is a fit case for quashment of the proceedings in question. I therefore, allow both the quashment applications viz. Cr. Rev. Application No,100 of 1999 and Cr. Misc. Application No,78 of 2002, filed by applicants/accused Asif Ali Zardari and S. Wajid Shamsul Hasan respectively and quash the proceedings started against them on the basis of F.I.R. No,2/1997 and the case No,4/1997 pending in the Court of Sr. Special Judge (Central) II, Karachi, and acquit both the applicants/accused from the charge of this case. The bail bond executed by the applicants/ accused, stands cancelled and their sureties stand discharged.