' SALMAN HAMID, J.--Through this handing down we will dispose of above six petitions (the Petitions), wherein it was prayed that adjudication proceedings before Appellate Tribunal of Customs, Excise and Sales Tax, Karachi Bench (CAT) may be closed inasmuch as after transfer of the petitioners' case to NAB, for trial, CAT cannot proceed into the matter.
2. Encapsulating the case, pursuant to receiving a credible information of misuse of DTRE Scheme by Bawan Shah Group of Companies in connivance with associates and concerned excise staff of Collectorate Customs (Exports), East Wharf, Karachi and causing of colossal loss to the exchequer such was investigated into and thereafter requisite F.I.Rs, were lodged. After investigation, challans were submitted before the Court of Special Judge, Customs and Taxation. Then commenced adjudication proceedings. Orders in original were passed against the petitioneRs, These were impugned before the Collector of Customs, Sales Tax and Federal Excise (Appeals). The appeals went against the petitioneRs, Resultantly appeals before CAT were preferred which are reported to be still pending adjudication.
3. The cases from the Court of Special Judge, Customs and Taxation, upon an application under section 16A of the National Accountability Ordinance 1999 (NAB Ordinance) were transferred to the Accountability Court, Karachi and are stated to be pending before it. The Directorate-General, Intelligence and Investigation, FBR through its letter No,C.No,19-DCl/1-A.Obs/2005-06/08/Part-II dated 25-7-2011 informed the Collector MCC (Exports), Karachi that during the last DAC meeting held on 9-7-2011 at RTO, Karachi, DAC did not agree with the contention of MCC (Export), Karachi that the recovery be processed by NAB and therefore directed FBR (MCC Export and RTO, Karachi) to release the recoveries. Hence, it was requested to provide the latest recovery position (of the petitioners) to the Directorate under intimation to the Chairman, Enforcement and Accounting Wing, FBR, Islamabad.
4. Consequent upon the above Letter dated 25-7-2011, the Petitioners preferred miscellaneous application(s) in the petitions with the prayer that its operation be suspended inasmuch as the Letter was contrary to earlier letter dated 30-4-2009, whereby the Collector, Model Customs Collectorate of Exports, Karachi stated that since the NAB has assumed jurisdiction and case(s) of Bawan Shah Group of Companies has/have been transferred to it, (NAB) and that NAB is empowered under section 12 of NAB Ordinance to recover the outstanding amounts, the Customs Collectorate was unable to recover the same such being out of its jurisdiction. It was further stated in the letter dated 30-4-2009 that the Collectorate can only initiate recovery proceedings once the cases are transferred back from NAB to the Collectorate. On the strength of Letter dated 30-4-2009 it was asserted by learned counsel for the petitioners that the recoveries could not be made by CAT.
5. Learned ADPG, NAB resisted the plea of the petitioners, It was argued that appeals before CAT and adjudication thereof and the cases before the Accountability Court are two distinct and separate proceedings. While in the first one, upon final adjudication, if petitioners are found liable to make good the losses caused by them, their assets (immovable and movable) which have been frozen would be appropriated: while in the second proceedings, the petitioners are being prosecuted, and if found guilty, serve sentence and also pay fine independent of principal losses, caused by them to the exchequer. It was, therefore, urged that the petitions be dismissed.
6. Before we proceed to give our reasons for dismissal of the petitions and/or the miscellaneous application(s) moved therein, it may be noted that among other dates these petitions (when miscellaneous applications were not on record) came up for hearing on 23-8-2010 on which day it was observed by the Bench that it was clear in mind that adjudication proceedings before the Customs authorities are independent of prosecution and apparently proceedings have been transferred to the NAB under section 16A of NAB Ordinance and therefore, issue (the prayer in the main petition regarding stay of proceedings before CAT) have had no significance. Confronted with such a situation, learned counsel for the petitioners sought time to satisfy the court on such issue. On 18-5-2011 learned counsel for the petitioners stated that the Accountability Court has already undertaken exercise regarding the case properties on the basis of the report submitted by I.O., the present petitions have become infructuous. Request for withdrawal, (allegedly upon instructions of the petitioners) was made. However, on the same day (18-5-2011) another learned counsel filed Vakalatnama on behalf of the petitioneRs, When the new counsel was asked to clarify conflict between two positions vis-a-vis withdrawal of petitions on one hand and filing of power on the other, time was sought. The matter was adjourned to 20-5-2011 when the petitioners were also ordered to remain present in court. On 20-5-2011 the petitioners were present and informed that no instructions to the previous counsel for withdrawing the petitions was given.
7. Coming back to the merits of the case, it may be noted that the appeals which are stated to be pending before CAT are altogether independent and separate proceedings. Upon determination of such proceedings, recoveries would be made, provided however if the petitioners therein are found liable to the same. The cases which are pending before the Accountability Court are criminal actions/prosecution for determining the guilt, with which the petitioners have been charged. It will take its own course. If the petitioners, after prosecution are convicted, would suffer and undergo punishment and would also be slapped with fine which may be to the tune and to the extent of the amount of loss caused by them (Petitioners) to the exchequer.
8. It may be mentioned, which even otherwise goes without saying, that the standard of proof in a civil case is dependent upon the preponderance of the evidence which essentially means that it was more likely than not that something occurred in a certain way; whereas in a A criminal trial and/or case the crime must generally be proved beyond a reasonable doubt. In criminal law a guilty is punished by incarceration in a jail and fine etc. In coming to this, we are fortified by the case of Talib Hussain v. Anar Gul Khan and 4 others (1993 SCM R 2177), where the apex court observed that, "criminal proceedings and departmental action can go on side by side and may even end in varying results. In departmental proceedings the desirability of a civil servant to continue in service is under examination whereas the object of the criminal proceedings is to determine and enforce the criminal liability of any accused. The nature of evidence and standards of proof are different in two proceedings". Such observation was made by the Hon'ble Supreme Court of Pakistan when it was surprised to note that the disciplinary proceedings against the police official had been postponed on the pretext that till the criminal proceedings are concluded, the proceedings for disciplinary action did not proceed further. In the case of the Deputy Inspector- General of Police, Lahore and others v. Anis-ur-Rehman Khan (PLD 1985 SC 1934) the Hon'ble Supreme Court of Pakistan held that, "The scope and the law applicable to the criminal trial was different from that applicable to departmental inquiry". These observations were made by the apex court in the cited case after granting leave to examine whether it was incumbent upon the competent authority to necessarily wait for the result of the judicial trial, or in any case to adopt more elaborate procedure of inquiry, for coming to a positive conclusion with regard to the innocence or guilt of the persons involved in the case' therein. Thus it becomes apparent that the scope and law applicable to the criminal trial is different from the one applicable to the civil proceedings. The two are neither identical nor substantially the same. The authority or the court is therefore not, bound under any provision or principle of law to wait and follow the judicial verdict either way. Keeping in view this exposition of the general principles of the civil and criminal proceedings, the argument of the learned counsel for the petitioners that their (petitioners') cases having been transferred from the Special Judge, Customs & Taxation (a criminal trial forum), their (petitioners') properties cannot be ordered to be attached by CAT and the proceedings before it,
(CAT) be quashed, to say the least is preposterous.
9. It would be advantageous to note that section 12 of NAB Ordinance only postulates freezing of property of an accused. It nowhere speaks about its appropriation in its (NAB)'s favour and/or to its advantage. It would be evident and clear from subsection (d) of section 12 that even if the property ordered to be frozen consists of livestock or is of a perishable nature, the Chairman NAB or the Court may, if it deems appropriate and expedient, offer the immediate sale thereof and the proceeds of the sale may be deposited with the Chairman NAB or as either may direct as suitable but cannot appropriate towards the liabilities of the accused. Similarly, sub-clause (e) of section 12 speaks about appointment of a receiver as provided under Order XL of the Code of Civil Procedure 1908 which means that the NAB authorities would keep the frozen assets of an accused under its receivership which would be in capacity of a custodia legis and by no stretch empowers the NAB authorities to appropriate such properties towards the liability of the accused. Even section 11 of NAB Ordinance speaks about imposition of fine and that too when the accused "found" guilty of offence is sentenced to pay a fine the amount of which shall in no case be less than the gain derived by the accused or any relative or associate for the commission of the offence.. Language of section 11 again shows that the fine would become effective only once the accused is found guilty of the offence of which he was charged with.
10. It would be evident, also borne out from the record that the action against the petitioners, in addition to criminal trial had also been initiated by the customs authorities under its statutes (Customs Act, D 1969) for recovery of amounts of duties and other taxes. These proceedings were in addition to the confiscation of goods or imposition of penalty. In such proceedings orders-in- original had been passed against the petitioners where against, appeals, as provided under section 193 of the Customs Act, 1969 before the Collector Appeals were preferred, which too having been decided against them (petitioners), appeals to the Appellate Tribunal, as envisaged under section 194A of the Customs Act, 1969 had been filed and are apparently pending adjudication. It is born from the above provisions that such provide a machinery for recovery of duties and other taxes independent of confiscation of goods and imposition of penalties to the offender. It may be noted that these penal provisions are available under Chapter XVIII of the Customs Act, 1969 and speaks about prevention of smuggling--- powers of search, seizure and arrest---adjudication of offences which are other than the provisions enumerated and/or available under Chapter XIX which exclusively deals with appeals and revisions and adjudication thereof. It is thus patently clear that even under the Customs Act. 1969 there are two types of proceedings: one relates to offences and punishments to the offenders and other for recovery of duties and taxes from the same offender but under civil dispensation.
11. Analysis of above provisions of law (NAB Ordinance and the Customs Act, 1969) it would be patent, which even otherwise is a general principle of law that while the recovery is channeled through recovery proceedings, penalty or sentence is imposed through prosecution and that too once the accused is found guilty of such an offence. It goes without saying that firstly through Letter dated 25-7-2011 it was only mentioned by the Director-General Intelligence and Investigation that latest position be communicated to such Directorate which by no stretch means that recoveries have been effected and even if such be the case, the same can be adjusted in Accountability cases, if occasion for the same would arise.
12. Under these circumstances, the petitions and/or the miscellaneous applications were found to be meritless and the same were dismissed on 24-8-2011, reasons whereof these are.