' IJAZ AHMAD CHAUDHRY, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner seeks quashment of F.I.R. No,10 registered on 7-9-2009 at Police Station I & P Branch, Directorate General Customs Intelligence, Federal Board of Revenue, Lahore.
2. Brief facts narrated in the instant petition are that F.I.R. No,41 has been registered on 7-9-2009 on the complaint of Iftikhar Ali Shah, Inspector Customs Gate (PIA) Shed Air Freight Unit, Lahore with the allegation that secret information was received from the Deputy Collector Customs and Freight Unit Lahore that Messrs Baig Enterprises, House No,7-D Shiraz Villas Phase No,II, Cavalry Ground, Lahore had imported some consignment from Dubai; they concealed the contents of all the imported articles and gave a false declaration to get cleared the said consignment in an illegal manner. After receipt of information, the Deputy Collector Customs passed an order for non- clearing of the said consignment. At 10:30 a.m. Then an employee of Messrs A. A. Agency (Pvt.) Ltd., produced the imported consignment for clearance along with declaration No, LAFU-HC-11788 dated 5-9-2009, which was found to be false and the articles lying in the said consignment were not found mentioned in the consignment whereupon the clearance of the said custom consignment was stopped. The material was inspected by Farhat Javed and Munir Niazi, Inspectors under the supervision of the complainant. The details of the articles found to be recovered were mentioned therein and total price of the imported goods was Rs,1,76,66,080. The material was taken into possession under sections 157-168 (i) Customs Act 1969 and it was also declared that the customs duty is payable to the amount of Rs,21,40,949. The petitioner joined the investigation and afterwards it revealed that regarding the same consignment another F.I.R. No,10 dated 7-8-2009 was got registered by respondent No,1 alleging that the officials of the Customs Department were also involved in the said concealment of the goods of the consignment which is liable to be quashed as under the law one cannot be waxed twice for the same occurrence.
3. On the other hand today C.M. No, 929 of 2010 has been filed on behalf of respondent No,2 with the prayer that F.I.R. No,41 of 2009 got lodged by M.C.C. May be quashed as the matter being disputed one was referred to the F.B.R., Islamabad by the Directorate, Intelligence and Investigation F.B.R., Lahore as well as by the M.C.C., Lahore and the Board being the authority under sections 195 and 223 of the Customs Act, 1969 resolved the matter considering the facts and circumstances of the cases and decided that F.I.R. No,41 dated 7-9-2009 lodged by M.C.C., Lahore may be withdrawn.
4. Report and parawise comments have also been filed on behalf of respondent No,3 to the effect that on the same day i,e, 7-9-2009, after interception of the impugned goods by the staff of respondent No,3, respondent No, 1 along with other staff of respondent No, 2 also came to Allama Iqbal International Airport, Lahore. Since offence had already been detected and cognizance had already been taken by re-examination of the impugned goods by the staff of respondent No,3, therefore, respondent No,1 got registered F.I.R. No, 10 dated 7-9-2009 with I&P Branch of the office of respondent No, 2 for the same cause. The said F.I.R. Was registered without conducting examination of the impugned goods and even without effecting\ seizure of the same as required under section 168 of the Customs Act, 1969. It was on 16-9-2009 i,e, after 9 days of the registration of F.I.R. No,10/2009, the staff of respondent No, 2 moved an application before the Court of Special Judge (Customs, Taxation and Anti Smuggling), Lahore and sought permission to examine the impugned goods and to make inventory of the same. The above request of staff of respondent No,2, itself, proved that F.I.R. No,10/2009 was registered by them without conducting examination of the impugned goods and without seizure of the same as required under section 168 of the Customs Act, 1969. The above position reveals mala fide of respondent No, 1 in registration of subsequent F.I.R. No, 10 dated 7-9-2009. Moreover, the FBR had already decided the matter regarding jurisdiction of the staff of Directorate General of Intelligence and Investigation-F.B.R. And the staff of Model Customs Collectorates regarding offences committed in respect of the goods lying at Customs Stations notified in terms of section 9 of the Customs Act, 1969. In a similar situation, which took place at Multan, the F.B.R., vide letter C.No,1(20)AS&C/2009 dated 15-4-2009 had ordered as under:--- "I am directed to refer to Directorate of Intelligence & Investigation-F. B. R. , Islamabad' s letter C. No, 9(42)DGC I/ Cus/09/1850 dated 9th April, 2009 and MCC Multan's letter C.NO.FIR/01/2009/I&P/905 dated 10-4-2009 on the subject cited above and to say that the matter has been examined and Board is pleased to order that FIR lodged by DG(I&I)'s office as the former has primary jurisdiction over the port and powers are vested in the appropriate officers of Customs Collectorate under the relevant provisions of law. Necessary measures may be taken to implement the orders of the Board." ' and according to section 223 of the Customs Act, 1969, which reads as under:--- "223. Officers of Customs to follow Board's orders, etc.---All officers of customs and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board: ' Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officer of customs in the exercise of their quasi judicial functions."
' The above legal position makes it clear that registration of subsequent F.I.R. No,10/2009 dated 7-9- 2009 by respondent No,1, is not only, unlawful but the same has been registered in violation of Board's decision/instruction conveyed vide letter C. No,1(20)AS&C/2009 dated 15-4-2009 and in disregard of the provisions of section 223 of the Customs Act, 1969.
5. It is contended by the learned counsel for the petitioner that on the same day F.I.R. No,41 was earlier got registered for the same incident by Iftikhar Ali Shah, Inspector Customs Gate (PIA), Lahore under the same offences and the petitioner was arrested in the said case F.I.R. No,41/2009 wherein the investigation was complete and the second FIR got registered by respondent No,1 i,e, an official of Intelligence and Investigation, FBR, Lahore regarding the same incident under the similar offences except for the involvement of the officials of the Customs Department as well is liable to be quashed as there was no such evidence in this regard; that the incident in case F.I.R.
No,41/2009 was alleged to have taken place on 7-9-2009 at 10:30 a.m. And it was got registered at 1:30 p.m. Wherein the value of the property was shown to be Rs,1,76,66,080 while F.I.R. No,10/2009 was subsequently got registered showing time of incident at 11:45 a.m., which was got registered at 8:00 p.m. In which the property was valuing Rs,40 lac. Further contends that the Directorate of Intelligence could only take the cognizance and get registered the case if the articles were cleared by the Customs Department, but the latter had already taken the legal action and the goods were still lying in the Customs Collectorate area and Intelligence Officer could not investigate the case, therefore, the second F.I.R. Should be quashed.
6. Learned counsel for Customs Intelligence has opposed this petition on the ground that F.I.R.
No,10/2009 may not be quashed as in connivance with the Customs Officers clearance of the goods was made subject to payment of Rs, 4,115 as the custom duty and Customs Officers were also in league with the accused, who got registered F.I.R. No,41 to save their skin and to give benefit to the petitioners, who had cleared the goods by imposing only an amount of Rs, 4,115 as customs duty while the articles which were in the said consignment and the duty was payable to the tune of more than Rs,48,00,000; that the registration of second F.I.R. Is correct, which may not be quashed and at the most proceedings in case F.I.R. No,41/2009 may be stopped.
7. I have heard the learned counsel for the parties and perused the F.I.R.
8. After hearing the learned counsel for the parties and perusal of the documents attached with the writ petition along with parawise comments filed by the respondents, it is straight away noticed that in fact impugned F.I.R. No,10/2009 has been registered against the officials of the Customs, who had allegedly facilitated in the clearance of the goods on the lowest duty and practically the petitioner has no concern with the said F.I.R., who has already been booked in case F.I.R. No,41 of 2009 for evading the customs duty, wherein after having been arrested he has been sent to the judicial lock up on completion of the investigation and nothing is to be recovered from his possession as from the bare perusal of both the F.I.Rs, and it is an admitted position that the consignment was not passed out, but the same remained available in the Customs Area. The allegations levelled in the F.I.R. Against the officials of Customs Department cannot be declared false in a slipshod manner. The factual controversies are involved, which cannot be resolved in writ jurisdiction as recording of evidence is not permissible and this court cannot assume the role of the Investigating Officer as has been laid down in Brig. Imtiaz Ahmad's case (1934 SCMR 2142). For the time being no good ground is made out for quashing of F.I.R. No,10 of 2009 and this writ petition having no merit is dismissed. It is up to the learned trial court to decide that out of the two F.I.Rs,, which has to be proceeded against and the courts are not bound by the opinion of the police. This also disposes of C.M. No,929 of 2010.