SYED HASAN AZHAR RIZVI, J. - This is an application under Section 561-A, Cr.P.C, for quashment of proceedings pending against the applicant before the ' Special Judge (Customs, Taxation) at Karachi and acquit the applicant as the entire allegation of crime is encircling around Valuation Ruling.
2. Brief facts of the case as alleged in the F.I.R, lodged by complainant on 15.2.2010 against the applicant and clearing agent is that on 10.2.2010 in pursuance of an information staff of the Directorate of Intelligence and Investigation, Karachi detained a 20 feet container at Port Muhammad Bin Qasim which was cleared/released by the Custom. The consignment was imported by the accused Noman Ashfaq, through clearing agent M/s. Fahad Impex filed the GD for clearance of the goods. After joint reexamination of the detained container it was confirmed that importer/clearing agent declared the description of the goods as "Door Controllers" whereas the consignment was found to be "Door closures" assessable at the rate of US $ 5.45/Kg whereas the consignment has been declared assessable at the rate of 0.4578/Kg and assessed by the "Customs @ 0. 65/Kg, the importer in connivance with clearing agent and customs staff by concealing the actual description of the goods had evaded the custom duty and taxes to the tune of Rs. 41,94,851/- hence this report.
3. The applicant filed application under Section 265-K, Cr.P.C, in the Court Special Judge (Customs Taxation & Anti-Smuggling) Karachi, which was dismissed vide order dated 19.5.2011 with the observation that Section 265-K, Cr.P.C, could only come in operation when there is no likelihood of conviction only then this Section would be applicable.
4. I have heard Mr. Fiaz H. Shah, learned counsel for the applicant, Mr. Muhammad Siddique Mirza, learned counsel for complainant/respondent and Mr. Pir Riaz Shah, learned Standing counsel.
5. Mr. Faiz H. Shah, learned counsel for the applicant has contended that the whole case of the complainant based around valuation ruling dated 31.10.2009 allegedly issued under Section 25-A of the Customs Act, 1969 by the Director General (Valuation), Pak Customs. He made reference to the show-cause notice issued on 6.4.2010 by the Collector of Model Custom regarding allegations made in the above-noted FIR, who after hearing the parties vide order dated 13.7.2010 came to the conclusion that the charge of mis- declaration is not established, and no penal action is warranted. He further observed that the imported goods are ordered to be assessed in accordance with the valuation ruling and the differential amount of duties and taxes determined on the basis of notified value of US$ 5.45/Kg is held recoverable. He further argued that this Court in C.P. No. D-897/2010 filed by the applicant challenging two rulings i.e. Ruling 178, dated 31.10.2009 and another ruling under Section 25-A of the same date and this Court by order dated 14th March, 2011 set aside the Valuation Ruling. He further submitted that this Court vide its judgment passed on 28.2.2011 in C.P.No.D-2673/2009 not only set aside the various rulings but also observed procedure for valuation rulings, In support of his submissions, he has placed reliance upon the cases of MICRO CORPORATION v. DEPUTY COLLECTOR, CUSTOMS, SIALKOT (2006 PTD 378) and MAZHAR IQBAL v. COLLECTOR OF Customs (PREVENTIVE), KARACHI & 2 OTHERS (2004 PTD 2994).
6. Learned counsel urged that there is mere allegation in the F.I.R, registered by the complainant that the applicant mis-declared the description of the goods has not been established as the Adjudicating Officer has held that^ no charge of mis-declaration is proved. He also submitted that in the facts and circumstances there is no likelihood in conviction of the applicant and the proceedings of the Trial Court would be nothing except the agony for the applicant. He submitted that under Section 265-K, Cr.P.C, the Courts have concurrent powers to acquit the accused at any stage of the proceedings even before framing of charge. He, therefore, prayed that proceedings pending against the applicant may be quashed."
7. On the other hand, Mr. Siddique Mirza, learned counsel representing the Customs Authority has supported the impugned order and has stated the F.I.R, was lodged properly against the applicant as he imported the goods by mis-declaration. He submitted that it is a settled law that a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. He, therefore, contended that the innocence of the applicant can only be determined after recording of evidence. He further submitted that in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of Section 561-A, Cr.P.C, should be invoked only in exceptional cases for reasons to be recorded. He relied upon the cases of Seema Fareed & others v. The State & another (2008 SCM R 839) and Bashir Ahmed v. Zafar-ul- Islam (PLD 2004 SC 298).
9. Pir Riaz Shah, learned Standing Counsel supported the arguments advanced by Mr. Siddique Mirza, advocate for the respondent.
10. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case-law cited at the bar. The provision of Section 32 and 156(14) of Customs Act, 1969 would be relevant only on proper adjudication proceedings if it is established on record that petitioner acted dishonestly. The liability of a person contemplated under the penal provisions of Section 32 is primarily a civil liability entailing determination of payment of the amount specified in the show-cause notice issued under sub- sections (3) and (3-A). It is only after determination of that liability and on the findings recorded in that regard that the penal provisions contained in various sub-clauses of Section 156 can possibly be invoked.
11. The purpose of adding Section 561-A, Cr.P.C, was to recognize and reiterate the inherent powers possessed by a High Court to pass such orders as would enable it to do justice to all concerned.
The object was to meet the lacunae existing in the Code and to cater for situations which could not be foreseen by the Legislature and for which no specific provision or remedy had been provided.
Section 561-A, Cr.P.C, was never meant or intended to offer any additional or an alternate remedy.
The Hon'ble apex Court in the case of Bashir Ahmed (Supra) had summarized the true import of provisions of Section 561-A, Cr.P.C., which reads as under:-
(i) The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provision of law;
(ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy for the redress of a grievance;
(iii) inherent powers can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation; and
(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of Section 561-A, Cr.P.C, should be invoked only in exceptional cases for reasons to be recorded.
12. In the case in hand, show-cause notice issued on 6.4.2010 by the Collector of Model Custom regarding allegations made in the above-noted FIR, who after hearing the parties vide order dated 13.7.2010 came to the conclusion that the charge of mis-declaration is not established and no penal action is warranted. As regards; valuation ruling, the applicant filed writ petition wherein the< Hon'ble Division Bench of this Court set aside the said ruling while observing the same is ultra vires Section 25A. Furthermore, burden to prove liability for an offence under Section 32(1) of Customs Act, 1969 is squarely upon department and no penalty can be imposed on mere inferences and as such provisions of Section 32 cannot be invoked on the basis of valuation ruling. There remains nothing in the case as one Adjudicating Officer observed that no charge of mis-declaration is established and the question of valuation ruling has already been set aside by this Court, therefore, in my humble view, it is a fit case where power under Section 561 -A, Cr.P.C, can be exercised.
13. This Cr. Misc. Application was allowed by a short order dated 06.12.2012 and proceedings before the Special Judge Customs & Taxation, Karachi against the applicant were quashed.