' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This Court in its judgment in the case titled Watan Party v.
Federation of Pakistan (PLD 2011 SC 997) inter alia, observed that violence in Karachi during the current year and in the past is not ethnic alone but is also a turf war between different groups having economic, socio-politico interest to strengthen their position/aggrandizement based on the phenomenon of titfor-tat with political, moral and financial support or endorsement of the political parties who were claiming their representation on behalf of public of Karachi including components and non-components of the Provincial Government/Executive. Therefore, directions were issued to the Provincial. Government/Executive to ensure smooth running of economic and commercial activities etc. It is always considered important to provide complete protection to all the stake-holders in terms of constitutional provisions so they may feel secure in earning their livelihood and also participating in socio-economic activities and at the same time for good governance and financial developments, existence of A complete peace free from any threat to the lives and the properties of the inhabitants, is necessary because without adopting these measures, it is impossible to improve or make developments in socio-economic lives by making investments freely enabling ultimately the persons to enjoy free life in the society. Undoubtedly after holding so many hearings in pursuance whereof Provincial Government was time and again asked to implement the directions/observations noted above. Thus, subsequent thereto, the Federal Government had joined hands with the Provincial Government to discharge its constitutional commitment in terms of Article 148(3) of the Constitution of Islamic Republic of Pakistan. It is important to note that in pursuance of serious efforts which now have been initiated by both the Governments according to the reports filed by all concerned functionaries one can prima facie, infer that serious efforts are being made by the Police and Rangers and civil administration to establish rule of law in Karachi. Anyhow, it could be too early to express complete satisfaction that law enforcing agencies have achieved maximum results to ensure enforcement of Articles 9, 14, 25 etc. Of the Constitution but the initiatives taken by the Police and Rangers through their respective Commandants operating in the field demonstrate their spirit and resolve that culprits are not above the law, they deserve the appreciation by the Court and if they violates the good order which is required to be maintained in the society, they will be dealt with strongly according to law. However, no matter whether any one is satisfied with their performance or not, the law has cast duty upon them to discharge their functions as required under the relevant provisions which bound down them to protect the lives and properties of the citizens.
2. A person who is made responsible or has been posted to discharge his functions is bound to expose himself before all risks on account of their legal obligations and commitment notwithstanding of having expectations of appreciation or otherwise because we are of the opinion that in Karachi which is a Port city, extraordinary efforts are required to be made by all the law enforcing agencies to restore the writ of the Government without extending any concession or relaxation to the culprits who have created not only law and order situation but at the same time are responsible to disturb the economic lives of the inhabitants. We are conscious of the fact that besides the Police and Rangers, there are other law enforcing agencies who are also capable to provide support to the Government for the purpose of restoring peace in this city. Relevant facts for consideration could be the financial resources, availability of the arms and ammunition, drugs trafficking, allowing flow of black money in the market with the help of which criminals are being benefited. Though at the same time, police is basically responsible to take cognizance of all such crimes but when there are special forces available to provide assistance to the police, they should in no manner directly or indirectly must come forward for extending helping hand to the police as well as Rangers. There are no two opinions that in the absence of finances, as far as the criminals or the violators of the law are concerned, they cannot involve themselves in unscrupulous activities. As we have noticed in the judgment, noted hereinabove and during subsequent hearings that the accused persons or their protectors are getting extraordinary financial help in the shape of managing flow of black money or the funds which are to be created unauthorizedly and also availability of arms and ammunition in abundance in every hook and corner of Karachi.
3. The Provincial Government in pursuance of our directions had taken steps to collect illicit arms under the relevant law as well as to computerize the names and data of the license holders who are in possession of arms ammunition authorizedly but it seems that culprits are not cooperating who are not committing the crimes individually but they have ganged up to indulge in nefarious activities as a result whereof the citizens of this city always feel threatened and no body was considering himself to be secured except for the last one or the two months when the joint efforts have been initiated by both the governments to maintain law and order situation in the city.
4. When the Court was confronted with the facts and circumstances noted from time to time to understand that what is the source of bringing arms and ammunition into Karachi or may be throughout in the country, we were told in the previous hearing by the Director-General Rangers while appearing on the rostrum that during the period of a Ports and Shipping Minister, containers of arms and ammunition were brought to Karachi but we were told subsequently that he is not stick to his statement for the reasons best known to him. But the statement was reduced into writing and on the basis of such statement, we had a duty to inquire from all the concerned authorities as to how arms and ammunition is being smuggled into Karachi for the purpose. Prima facie, we are of the opinion that as there is pilferage leakage of the taxes which is not being paid and goods are reported by evading the duty and this money is being used for indulging in unlawful activities etc. Secondly, it is the duty of the Customs Authorities, Police, Rangers, Pakistan Coast Guards and Pakistan Maritime Security Agency posted at Port Qasim and Karachi Port or on the different 'spots which lead the way to Karachi to curb this menace.
5. It is to be noted that as back as in the Month of October, 2011, when the judgment in the case noted above was announced, none of the observations/directions was that "Karachi is full of arms and ammunition of prohibited bores including licensed and illicit, therefore, Karachi has to be cleansed from all kinds of weapons by adhering to the laws available on the subject, and if need be, by promulgating new legislation. All licensed arms genuinely required for security concerns and personal safety may be retained but these must also be registered with NADRA. All other licenses, where such need cannot be shown, or where multiple licenses have been issued to the same individual (as distinct from security firms) if not justified, or which are used for unnecessary display at ceremonies or elsewhere for aerial firing should be cancelled after summary and expeditious proceedings in accordance with law". The Provincial Government as it has been already mentioned, had launched a campaign but without any remarkable success but as far as other agencies named herein above are concerned, they are also not absolved from their responsibility to implement above directions.
6. It has been repeatedly inquired from the Chairman FBR, the Chief Cpllector Customs and the Collector Customs to apprise the Court that how a huge quantity of unlawful goods is being smuggled into Karachi as it is evident from the reports submitted,by the Police and Rangers that they have succeeded in confiscating a good number of arms and ammunition from different areas of the City which were found in the possession of unscrupulous persons. The Customs authorities, failed to furnish satisfactory explanation. It may not be out of context to note that this Court in exercise of suo motu powers had taken the notice (....) of about 19,000 Containers containing different type of goods and appointed to the Federal Tax Ombudsman as a one-Man Commission (Mr. Shoaib Suddle) who had furnished comprehensive report of details of transit cargo etc. From the year 2005-2010 and so many other facts were also revealed in the report. This report is also available in the office of Chairman, FBR but it seems that despite of it no serious efforts have been made to ensure that the smuggling is stopped not only for the sake of Karachi but for whole of the country. One can conveniently absolve himself by advancing the plea that he was not party, to the affairs which took place few years before but he should realize that it is not the question of fixing the responsibility on individual officer as it relates to an Institution.
7. Be that as it may despite findings/recommendations of the Suddle Commission's report, we were also persuaded to focus on this issue vigorously as we are of the opinion that unless the Karachi is not cleansed from illicit arms and ammunition, it might would become difficult to sustain the improved situation of law and order as it exists today because of the concerted efforts of the functionaries noted hereinabove. Therefore, another one-Man Commission was constituted comprising one former Member Customs namely Muhammad Ramzan Bhatti who was required to answer the following questions:-- "(a) As to whether arms and ammunition are brought or smuggled through the sea and what are the possible measures and ways to be adopted to stop it,
(b) Who can be held responsible for the smuggling of arms and ammunition into the country through ships, vessels as well as launches and what are the reasons for not preventing the smuggling of the same,
(c) As to whether the Customs officials posted at the Ports of Bin Qasim and Karachi manage to recover hundred percent Customs duty and the revenues or there are certain mechanisms on the basis of which these duties are evaded, which cause loss to the public exchequer and ultimately such black money is used for illegal activities and promoting crimes in the country,
(d) To enquire into the allegation that a ship load of arms and ammunition was brought into Karachi with the connivance of the then Minister for Shipping, as stated by the DG Rangers and to propose what action should be taken against the persons responsible".
7. A comprehensive report has been submitted wherein findings/recommendations/solutions etc. Have also been noted separately. The Court is of the opinion that in the facts and circumstances noted therein, for the purpose of recording recommendations, etc. In respect of all the four questions, these have been separately highlighted in a befitting manner, the contents whereof are as under:-- RELEVANT FINDINGS TO QUESTION NO. 1.
' The investigations conducted by the Commission have led to believe that no sizeable or worth- mention smuggling of Arms and Ammunition is taking place through the sea, It has been reported by the Maritime Security Agency as well as Coast Guards that no seizures of Arms and Ammunition smuggled through sea had been made. However, the two Customs Collectorates, i,e, Preventive Collectorate and Collectorate of Customs Gwadar have reported that a Small quantity of Arms was seized along with full loads of liquor or other contraband goods through launches.
These cases had been instituted and tried in the Court of Special Judge Customs and a few persons held guilty were awarded imprisonment ranging from 1 year to 5 years, while the others were released on the plea that they were labourers and not smugglers despite the fact that section 2(s) of the Customs Act, 1969 clearly provides that attempt, abetment and connivance constitute the act of smuggling. The other inland Collectorates of Customs Hyderabad, Quetta, Peshawar besides the Directorate General of Intelligence and Investigation (Customs) have also reported seizures of Arms and Ammunition brought from the Frontier Regions/FATA. All cases have been sent to the Court of Special Judge, Customs for trial without reporting these seizures to the district Police.
' It has been noted by the Commission that the Customs Collectorates responsible for interdiction of Arms and Ammunition and other contraband goods smuggled through sea lack where withal to exercise their functions. They do not have the trained manpower nor the high speed boats and the hardware to exercise their jurisdiction over the entire length of country's 1,000 km coastline, out of which surveillance of 800 Km, coastline is assigned to comparatively newly born Collectorate of Customs Gwadar. However, these two Collectorates of Customs responsible for prevention of smuggling have set-up a few check-post, along the coastline which are neither properly manned nor equipped to stop the smuggling.
' The Maritime Security Agency and Pakistan Coast Guards (hereinafter called the MSA and PCG) which are the premier agencies to defend the sea borders of the country have claimed in their communications (Annex-B and C) that they are fully equipped and present along the whole coastline. The MSA has claimed a few seizures of launches fully loaded with liquors showing the smugglers as unknown. However, the Pakistan Coast Guards has not reported any anti-smuggling activity. This may be because of the reason that the powers entrusted to these agencies along with others were withdrawn in 2005 as a consequence of decision of the Anti-Smuggling Board in the Ministry of Interior, on account of very poor performance of these agencies/Departments, ' The Chief Collector of Customs, Enforcement - South, Custom House, Karachi has intimated to the Commission that he has held a meeting on 4th September, 2013 with the Director Generals of MSA and PCG in pursuance of the directions of the Hon'ble Supreme Court of Pakistan. It was admitted by the Director Generals/Heads of two Agencies that (i) no intelligence report has ever highlighted movement of arms and ammunition via the sea, and (ii) it is not logistically and economically viable for smugglers to carry huge consignments of arms and ammunition on launches and dump it on the coastline for onward movement towards cities as the Pakistan Coast Guards have static posts all along the coast and movement of consignments along the coastline is easily detectable by the PCG personnel manning all possible landing sites.
' The Commission is of the view, despite the above-stated claims of MSA, PCG and Pakistan customs that there are chances that a merchant ship may bring Arms and Ammunition from the neighbouring hostile countries and while remaining in the high seas may transfer the arms and ammunition to small boats especially fishing boats which can easily berth at any place along the coast line. It has been reported (Annex-D) by the Chief Collector of Customs Enforcement South that there are thirty-nine (39) places on the coastline where the fishing boats can easily unload the cargo. Out of these, only seven (7) are manned by Customs Department while the rest thirty- two (32) have to be taken care of by the other two agencies i,e, MSA and PCG. This apprehension of the Commission is supported by the Chairman PQA (Port Qasim Authority) who has reported (Annex -E) that the maritime territory under the PQA control is vulnerable to hostile intrusion due to the difficult, inaccessible terrain and proximity with the disputed international border in the Sir Creek region.
' The Commission during the visit of the strong rooms in East Wharf KPT observed that a number of consignments of Arms and Ammunition imported in 1994 and onward were still awaiting clearances on payment of duty and taxes or otherwise disposal. It was also witnessed that the wooden packing of a number of consignments of Arms and Ammunition imported from China had broken reportedly during the voyage of vessel FU YA SHAN because of sea storm. Therefore, the Arms and Ammunition of different consignments got mixed-up and were repacked by KPT Authorities after unloading without any supervision of the Customs Department. No stock-taking has been done so far to ascertain as to whether any quantity of Arms and Ammunition was missing.
' RELEVENT FINDINGS TO QUESTION NO. 2.
' It has already been submitted that only a very few cases of smuggling of negligible quantity of Arms and Ammunition along with the fully, loaded launches of liquor had been seized in the past few years. Prima facie, these Arms and Ammunition were brought by the smugglers for use in the encounter with law enforcement agencies including Customs Department. All the intelligence agencies which are either present in the port areas or on high seas have confirmed beyond doubt, that neither they had received any information nor transmitted the same to Customs Department about the smuggling of Arms and Ammunition. Therefore, the Commission finds no grounds to fix the responsibility for not preventing the smuggling of Arms and Ammunition through ships, vessels as well as launches. The Commission has already proposed measures to ward off any chances of smuggling of Arms and Ammunition through sea with reference to the first observation of the Hon'ble Supreme Court of Pakistan.
' The import of arms and ammunition into the country is regulated by the Federal government through the Import Policy Order (IPO) as amended from time to time, read with the Ministry of Commerce letter bearing F. No, 2(8)/2004/KC (Imp.1/AC(Imp), dated 25-1-2005. As per the serial Nos. 37-38 of Appendix-A of the IPO-2013, the import of arms and ammunition of certain bores and calibers as mentioned vide the serial Nos. Ibid is prohibited, such as revolvers and pistols of more than 0.46 bore, semi-automatic rifles of 7.62mm, rifles of 8mm - 9mm, etc. Conversely, the arms and ammunition of other, non prohibited bore and caliber are importable as per serial Nos.
63-67 of Appendix B of the IPO-2013. However, according to the procedure notified by the Ministry of commerce only authorized dealers can import the non-prohibited bore arms and ammunition on commercial basis while individual importers can bring in a limited quantity of such weapons in their personal baggage, provided the passenger declares the item to Customs on arrival at the airport of entry and holds a valid import authorization from the Ministry of Commerce as well as a license issued by the relevant provincial Home Department.
' However, the Commission has studied the procedure in vogue for the import of non prohibited bore arms and ammunition by the authorized dealers and found various lacunae therein. The most important weaknesses of the current system are: ' The Ministry of Commerce issues import authorizations on the basis of "value of goods" rather than prescribing the total quantity of arms to be imported by an individual dealer. Customs has repeatedly requested MOC to review this pattern and indicate the actual importable quantities of each type of arms and ammunition along with the value of goods but without any success. The quantitative restrictions are essential to ensure that 'the import values are not manipulated by importers according to the demand of weapons in the market.
' Customs is not maintaining any centralized record of import authorizations issued by the Ministry of Commerce. There is an urgent need to prepare a manual or electronic register that records the import transactions of an individual dealer from any of the countrywide clearance Collectorates of Customs. Such a unified mechanism would empower the Customs officer to access the database of both types of the clearance systems in vogue, i,e, the manual One-Customs and the automated WeBOC, prior to release of each consignment and make an intelligent decision on the basis of live quota debit and credit information.
' Presently, the importers of arms and ammunition can import cargo from any Customs station of their choice. With the absence of any centralized record keeping, there is a possibility, of misuse of import authorizations issued by the MOC for multiple clearances from different Customs stations.
There is a dire need to conduct forensic audit of the clearances in juxtaposition with the import authorizations so that any abuse of the system can be highlighted for rectification.
' Evidences have come to the notice of the Commission where the authorizations issued by the Ministry of Commerce have been amended/enhanced many folds on the basis of political interventions. The FBR needs to isolate such cases for deeper probe as to the ultimate disposal of such imported arms and ammunition.
' A mechanism needs to be developed through which the clearance Collectorates should verily the import authorizations of the Ministry of Commerce and the financial instruments issued by the banks, such as the L/C, contracts, etc. Presently, the importers provide the validations of documents on their own in which the possibility of manipulations cannot be ruled out.
' There is no institutionalized liaison between the Ministry of Commerce, Customs and the concerned L/C or contract issuing banks for end to end monitoring of the system from the import stage to the final user/buyer. The Hon'ble Supreme Court has already directed the NADRA authorities to prepare a database of all arms licenses issued by the federal and provincial authorities. Maintaining a centralized electronic register of imports by Customs and subsequent recording of end-sale information would close the entire import chain and help better regulate at least the one portion of the arms trade which is through legal import channels.
' The Commission has noted that the authorized importers of arms and ammunition especially from China are indulging in "group under invoicing." The Customs department had ascertained the price of .30 bore pistol as US$ 55 per piece in 1995 and the price of 9mm pistol as US$ 70 per piece in 2009. The importers are declaring the prices maximum of US$ 50 per piece and US$ 65 per piece respectively. The actual price of these Chinese arms as ascertained by the Commission through various sources are US$70 per piece and US$ 90 per piece respectively. However, there is no evidence of these prices on record. The Customs department is, therefore, constrained to follow the price pattern ascertained and agreed almost 18 years ago. The Hon'ble Superior Courts have already pronounced that Customs cannot fix or ascertain prices of imported items without evidence of actual import. The group under-invoicing up to the extent of 40% in Arms and Ammunition contributes in the outflow of foreign exchange through hundi/illegal means, besides promoting undocumented economy.
' A case study of the import of Arms and Ammunition by Messrs Amir Rehman & Co. Has been conducted. It is noted that the authorization for import value of Arms and Ammunition was revised from Rs, 2m to Rs, 4m per annum in 2008 vide Ministry of Commerce letter No, 19(20)/2007-Imp. I dated 6-11-2008 in pursuance of request dated 27-9-2008 received through the PM Secretariat.
The importer for the first time filed a GD No,KAPR-Hc-71434 dated 12-12-2012 for clearance of 868 pieces of .30 bore pistols of China origin from Hong Kong. Investigations revealed that all the cleared quantity from Customs was sold to another Arms dealer namely Messrs Hussain & Co., Khyber Bazar, Peshawar who have again sold out all the imported pistols except six to individual buyers. Messrs Rehman & Co., Mingora, Swat have now imposed three consignments of Arms and Ammunition with a quantity of 840 pistols and 1.244m bullets of .30 bore and sought release against the three contracts originally registered with the Bank on 5-6-2008, 21-6-2010 and 16-8- 2012. The Customs Agent has so far failed to produce any extension in these contracts except that the contract for import of pistols is still valid. This case study establishes beyond any doubt that authorizations for import of Arms and Ammunition are being issued by Ministry of Commerce as a political bribe even to Arms dealers in far flung areas who only earn, windfall premiums by selling the total imported quantity to Arms dealers in big cities. This policy of issuing of authorizations for import of Arms and Ammunition on political basis needs immediate review.
' RELEVENT FINDINGS TO QUESTION NO. 3.
' The Commission has also noted that after the submission of report of Mr. Shoaib Suddle, Exh.FTO in pursuance of orders of Hon'ble Supreme Court of Pakistan in Suo Motu Case No,16 of 2010, a separate Directorate General of Customs (Transit) has been established and made functional besides the revision or issuance of Standard Operating Procedures (SOPS) to ensure safe transit of goods to Afghanistan. All the containers unloaded at Karachi Ports are scanned and images are cent to Collectorates of Customs in Peshawar and Quetta who are responsible to ensure transit of all cargo whether containerized or not, to Afghanistan. The Customs Department has also hired the services of a private company Gamely TPL Trakkers Pvt. Ltd.) for the en-route tracking of trucks/trollers on which containers are transported to the border Customs Collectorates for onward movement to Afghanistan. A number of improvements have also been made in the Computer software for timely capture of data of transit goods at both ends for reconciliation purposes. Now the sub-letting of transit cargo transportation to hired, mechanical transport (HMT) has been stopped and the cargo in transit is transported only through the Customs licensed Bonded Carriers, of course after obtaining of no objection certificate from NLC reportedly on payment of fee of Rs, 20,000.
' The DG - Rangers though personally not appeared has denied his statement recorded by the Hon'ble Supreme Court of Pakistan in its observations at Para 13(d) of the judgment dated 30-8- 2013. Therefore, no need was felt to further investigate about the alleged involvement or connivance of the then Minister for Ports and Shipping. It is also pointed out that some unknown persons during the visit of the Commission to the East Wharf, KPT, Karachi complained that dozens of high ranking officers in KPT and Port Qasim Authority' were closely related to the then Minister for Ports and Shipping and were involved in nefarious activities, i,e, getting kick-backs in the sale of lands besides other misdeeds. Since the complainant refused to disclose the identity, no investigations in this behalf were conducted as complaint being unfounded and falling outside the mandate of this Commission.
' The Border Agents who are again mostly Pakistani nationals are engaged in hiring the services of Customs Agents in Karachi against payment of service charges and other expenses in Pak currency. No investigations have been conducted so far to ascertain their status as to whether they are the actual importers or are the Agents of Afghan imparters, in which case they should have received all the service charges of clearing agency and other expenses in foreign exchange through the authorized banks.
' The Law Enforcement Agencies i,e, IB, Police, Rangers, PCG and MSA have confirmed that neither they have received any information nor any information was passed to Pakistan Customs regarding smuggling of foreign origin Arms and Ammunition including the imports made in transit for forces in Afghanistan. It has also been further Confirmed by the DG - Rangers that the Arms used in Karachi violence are mostly of caliber of 9 mm and 30 bore which were never imported through sea by the forces in Afghanistan because of reportedly an agreement with the GoP that these light arms will not be imported through land routes of Pakistan. The letters of the DG Rangers and the Director (Internal) IB are enclosed (Annex-I and J).
' The IGP - Sindh who had informed this Commission vide Para Nos. a and b of his letter dated 6- 9-2013 (Annex-K) that Police was not responsible to seize the Arms in case of smuggling through seas, be directed to apprehend all such Arms and Ammunition from the smugglers and hand over them to Pakistan Customs for prosecution in the Court of Special Judges besides prosecution by Police in the Anti-Terrorist Courts.
' RELEVENT FINDINGS TO QUESTION NO. 4.
' Presently there are stand-alone computer systems for each tax collected by the FBR. Customs duties and other taxes which form about 40%, of total taxes are realized through processing goods declarations under the "WeBOC Computer System" and One-Customs System," both developed by PRAL. These two systems are neither dove-tailed nor the data is mirrored on real time basis. All the vessels information reports (VIR) are electronically received by the WeBOC which processes about 90% of the goods declarations. The rest of the goods declarations are processed through the One- Customs. The commission has been informed that the WeBOC System has been audited by two different organizations but no audit reports were made available. Neither any follow-up action of audit reports was communicated. The Commission has studied the WeBOC System in the short period available and is of the view that Requirements Specification Document (RSD) needs to be reviewed by a team of tax experts with a view to make it a comprehensive system based on EDIFACT (Electronic Data Interchange for Administration, Commerce and Trade). A dedicated team of tax experts and software engineers may be deputed to ensure that all the goods declarations be processed by WeBOC with facility of back and forth automatic linkages/exchange of data with the other computer software systems of FBR. In the long run the FBR should have one integrated software system for all taxes with facility of real time exchange/tabulation of data with respect to all activities of a Tax Registered Person.
' It has been noted by the Commission that the tariffs on imports have been designed in a manner which provides incentives for more imports and create job, in the foreign countries rather than in Pakistan. The unscrupulous importers also guise there high tariff items under the import of items subjected to concessionary rates.
' Unfortunately every person who came in contact with Commission complained about the rampant corruption in the Customs Department while acknowledging that the senior officers of Customs Karachi were honest and easily accessible. It was alleged that the computerized system could be broken/by-passed anytime with the help of sepoys, ministerial staff lappoos hired by Appraisers/Executive Staff or by availing the services of permit holders of some specified Customs Agents. They confided that nothing moves in the Customs Department without greasing the palm of sepoys/lappoos. They claim that there were certain Customs Agents (two of them named as Messrs Kaka Enterprises; Sharjeel Jamul and Mama Traders) dealing in the clearance of scraps, spices, paper waste, fabrids etc. Had almost monopolized the business of clearance and their GDs were either not classified as Red/Grey and even if selected for Examination/detailed scrutiny were let off without imposing any considerable penalty/fine or increase in the collectible revenues.
Vocal persons coming in contact of Commission claimed that some of the Assistant Collectors/Deputy Collectors now assigned the job of directly dealing with GDs are in the, habit of accepting as low as Rs,500 as bribe for doing a small favour. It was also stated that the amount of duties and taxes paid along with the filing of GDs and later on worked out as excess deposit was not refunded to the importers/agents neither accounted for in the revenue collection. They apprehended that this amount was being pocketed by the National Bank functionaries who were allegedly collecting Rs,100 per GD at the time of deposit of taxes whether at the original stage or at the time of payment of differential amount demanded by the Customs as additional duties and taxes. The Commission was told that the average cost of getting the goods cleared from Customs control was in the range of Rs,5;000 to Rs,25,000 per GD. These allegations by the unknown persons could not be verified because of being outside the mandate of this Commission and due to the paucity of time.
8. However, we do not agree with the Commission that arms and ammunition are not smuggled into Karachi, by culprits through sea as forgetting for the time being about the question at arms and ammunition as it is being discussed, there are huge smuggling including petroleum etc. From Iran and other countries through launches which could not have been done without the tacit consent of the Customs authorities. It is a matter of taking judicial notice and hardly any one can dispute that petroleum and diesel being smuggled from Gwadar and Karachi is available openly throughout in the coastal area and some of the interior part of the Province of Sindh as well as Balochistan which is available less than the market price. Similarly there are number of other contraband items which are available in the markets, baras, shopping plazas quite conveniently without any check by any of the law enforcing agencies. Not only this, during the hearing the Director General Customs Intelligence namely Muhammad Riaz in response to the Court notice appeared and by filing a statement candidly admitted availability of the arms and ammunition as well as the drugs/narcotics in Karachi and he had identified two -places namely, Yousaf Goth and Sohrab Goth where according to the reports, not only arms and ammunition has been dumped but at 'the same time drugs, narcotics are also available. It is to be noted that although the DG Customs Intelligence has clearly stated in the report that two, prominent places exist in Karachi where drug barons run the business but not a single word has been stated in the statement as to what action immediately would be taken and same is the position as far as the Customs Department is concerned. Said report of the Director-General, Customs Intelligence, are reproduced hereinbelow:-- "GOVERNMENT OF PAKISTAN ' DIRECTORATE GENERAL OF INTELLIGENCE AND ' INVESTIGATION-FBR REGIONAL OFFICE, 81-C, ' BLOCK-6, P.E. C.H. S. , ' KARACHI.
' Phone No,021-34302411 Fax No,021-34302413 e-mail: cusintkhi@hotmail.Com ' C. No, Appg-35-DCl/SMC Comm/R&A/2013/2467 dated: 6-9-2013 ' Dr. Wasif Ali Memon, ' Secretary to the Commission, Custom House, ' Karachi.
' SUBJECT: SUPREME COURT SUO MOTU CASE NO.16 OF 2011 ETC. (IMPLEMENTATION)
' Kindly refer to text message received on cell of the undersigned on 5-9-2013, sent by Mr. Ramzan Bhatti, Commission appointed by the honourable Supreme Court of Pakistan in Suo Motu case 16/2011. The Commission has desired to know about position of smuggling of goods, drugs, arms and ammunition through Sohrab Goth and Yousuf Goth in Karachi.
(2) The requisite report regarding Sohrab Goth as well as Yousuf Goth is submitted as under:-- ' Sohrab Goth: ' Sohrab Goth, a suburb of Gadap Town at Super Highway, is one of the entry points at outskirt of Karachi and due to presence of a defecto inter-city bus terminal for public transport buses to/from all over Pakistan, the area is considered to be main dumping place of smuggled goods, illegal arms and drugs/narcotics brought by drug mafia and smugglers from upcountry. The vicinity has common boundary with Hub, Balochistan and also linked with RCD Highway through Northern Bypass. The population of Sohrab Goth is predominantly Pakhtun (originating from tribal areas specially Mehsud tribe) and Afghan refugees while other communities including Balochis, Sindhis, Urdu speaking, Kashmirs and Sarakis are also there.
' Historically, Sohrab Goth was initially a 'bara' market of smuggled imported goods brought from up-country through public transport, inter-cities buses, drugs, etc. However, in 1981, thousands of refugees from Afghanistan moved to Karachi and settled in Afghan Khemabasti in the vicinity of Sohrab Goth. The vicinity subsequently became main dumping place of heroin, charas, illegal arms and ammunition including light and heavy weapons besides customer's smuggled items.
Soon the police became notorious as main linked in the drug supply chain specially of hashish and heroin meant for smuggling to European countries as well as consumption in the city through local dealers/drug mafias. The vicinity is presently a safe heaven for smugglers of drugs and illegal arms, criminals, land grabbers, encroachers and other outlawed organizations involved in criminal activities including ethnic and sectarian violence. Reportedly there are dens of illegal arms and ammunition including light and heavy weapons normally used by the criminals and outlawed organizations involved in street crimes, dacoits, robberies, kidnapping for ransom, ethnic and sectarian violence in the city. The vicinity is highly sensitive, volatile and inaccessable for raiding teams from Customs Directorate General (I&-FBR) due to political and ethnic affiliations and vested interest of underground criminal groups and hold of influential drug smugglers, land grabbers and encroachers who are not only equipped with latest weapons but also create law and order situation as and when attempts are wade to raid the area for recovery/seizure of contraband smuggled goods.
' In past, many attempts were made by the government to clean up the area and in this regard a major "Operation Cleanup was launched by the then government in December, 1986, whereby bulldozers moved into the area and levelled shops and house, etc., by the law forcing agencies.
However, reaction of the operation came quickly and displaced residents of Sohrab Goth resented on the neighbouring Orangi Town and unleashed act of reprisal which ultimately turned into ethnic violence leaving many dead. Law and order was thereafter restored by Army action and the displaced Pakhtoons/Afghan population was moved into three camps. However, with the passage of time, the displaced population and many others re-settled in the area of Sohrab Goth and the vicinity once again turned into safe heaven for drug/arms smugglers.
' The contraband goods including drugs and arms and ammunition normally procured from arms/drug dealers in Peshawar and tribal areas are transported to Sohrab Goth through public and private transport vehicles including buses, coaches, trucks, oil tankers and cars, etc. The contraband is dumped in dens located in the thickly populated/congested residential areas within the vicinity from where same is supplied to various criminals groups through local dealers.
' Customs department at present has neither capacity nor capability to make raids on Sohrab Goth for recovery and seizure of contraband goods as the department has neither sufficient manpower nor arms and ammunition to control resistance. Any such attempt will result into strong retaliation from smugglers and armed criminal groups supported by ethnic communities creating law and order situation not only in the area but whole of the city. It has no capacity because of the reason that since last more than 20 years no induction of fresh staff has been made in the service, rather the original strength has reduced due to retirement of many officials with the passage of time whereas work load has increased manifold on the other hand. Presently average age of the staff is around 50 years. At such age, vigour and motivation level reduces due to health issues. Expecting performance from them at par with young and energetic officials would not be real.
' Keeping in view the afore-mentioned ground realities, what practically is possible that at first a serious operation should be conducted by local administration through Police and Rangers to clean up the area from criminals, land grabbers and extremist groups, etc. Once the law and order is restored an d writ of law established in the area, then Customs department with the assistance of Police and Rangers can enter into the area to clean it up from smuggled goods and establish permanent Customs check post to check each vehicle for smuggling of goods and (sic.) angle. Meanwhile, it is desirable that fresh and young blood should be inducted in service to enhance its capacity. The government should also provide funds and permission to purchase latest weapons to cope up with situation.
' Yousuf Goth: ' Yousuf Goth is the main entry point of smuggled goods transported to Karachi by buses, coaches and other public/goods transport vehicles arriving from Quetta and other cities of Balochistan. It is a suburban village of Gadap Town situated in north-western part of Karachi on main RCD Highway near Moach Goath adjacent to Baldia Town, Karachi which is commonly known due to location of huge inter-city bus terminal for incoming/out going public transport vehicles/coaches to/from Balochistan. The smuggled goods comprising non-duty paid consumer's goods like art silk fabrics, crockery, electronics items, household appliances, tools, POI, products (Irani diesel, Petrol in plastic drums and lube oils, etc.) tyres/tubes and blankets, etc; are brought on passengers buses arriving mainly from Quetta and also some other cities of Balochistant The goods are unloaded at the bus terminal and temporarily stored in covered sheds at the terminal or otherwise shifted to secret godowns in the adjacent Yousuf Goth, from where same are distributed and brought into city markets from time to time in small vehicles like Shehzore and Suzuki pickups, etc. The transporter community is involved in the organized and regular smuggling of afore-said goods which actually pertain to Afghan Transit goods which find their way back to Quetta and other cities either after crossing Pak-Afghan border from Chamman or pilfered from transit containers enroute to Chamman.
' Since influential transporters are involved in the smuggling, the goods safely reach Yousuf Goth despite the fact that there are several check posts on RCD Highway of Coast Guards, Customs, FC, Levies, Rangers, Police and other law enforcing agencies. Frequent checking of cargo unloaded from buses by any single agency i,e, Customs or Directorate General (I&I-FBR) is not possible due to the fact the transporters and driver of public transports strongly and unitedly resist, retaliate and often block the highway which creates law and order situation.
' It is proposed that a Customs check post at Askari Hotel after crossing Hub Chowki at RCD Highwny in the jurisdiction of MCC (Preventive), Karachi, having sufficient trained manpower, properly equipped with arms and ammunition supported by mobile under the supervision of Deputy/Assistant Collector of Customs may be established to check the flow of smuggled/ contraband goods to Yousuf Goth and onward transportation to Karachi.
' Sd/ (Manzoor Hussain Memon) Director ' Copy for information to: ' Director-General, Intelligence and Investigation-FBR, Islamabad.
Sd/ (Manzoor Hussain Memon) Director"
9. One of the Interveners namely, Syed Mehmood Akhtar Naqvi voluntarily appeared and filed C.M.A. No, 847-K of 2013 pointing out routes, places of availability of narcotics in the Karachi. There are number of other facts and circumstances which could be considered sufficient to infer that in Karachi the arms, and ammunition as well as drugs is being smuggled and 'despite of the availability of the law enforcing agencies, noted hereinabove, as well as Anti Narcotics Force, such type of nefarious trade of drugs/narcotics is reaching to the city and the money being generated from such un-authorized and illegal resources had to find out its way to Karachi where it is to be spent. We always insist that it is the responsibility of the law enforcing agencies/Executive to protect the fundamental rights of the citizens while taking support from the constitution and at the same time solution is, to be find out. Its answer is available in a single minded proposition that the laws available on the subjectare to be adhered to strictly without any discrimination and accommodating any person whosoever he may be.
10. The deficiency which we have noticed during the hearing of the case is that the forces like Customs, Pakistan Coast Guard, Maritime Security Agency etc. Are not willing to deliver and ensure as already been observed by this Court that Karachi has to be cleansed from illicit arms and ammunition but despite of spending considerable time seeking implementation of the judgment by this Court, no results have been given. It is to be noted that Mr. Ramzan Bhatti's Commission report, besides revealing number of important facts, had also pointed out that there is a consignment of arms and ammunition lying with the Department from 1994 to onward containing arms and ammunition, but so far, the same had not been cleared, what could be the worst position of efficacy of the Department.
11. A statement has been filed by the Director-General, Anti-Narcotics Force wherein it has been shown that in the year 2013, four cases of narcotics were apprehended. We have inquired from him the number of such cases which pertain to Karachi. The DG, ANF has submitted details of these four cases, the contents whereof are reproduced as under:-- "SEIZURE OF 4260 KG HASHISH AT HUB, ' NEAR KARACHI (23rd February, 2013)
(1) Background: ANF Karachi has been developing an operation pertaining to an organized crime group which comprises of a number of high value targets (HVTs) based at Karachi, Balochistan and Khyber Pakhtunkhwa involved in trafficking of drugs at local and international level including to West and East Africa, UAE,. Yemen, Oman and Iran etc. Through Dhows from Arabian Sea. In the backdrop of subject investigation, ANF received a tip of information from already placed sources that one of our main subject namely Fateh Muhammad has planned to transport huge load of hashish from Khyber Pakhtunkhwa to Hub Chowki and then to Makran Coast for onward transshipment to Arabian and African countries using fishing dhows/boats. Acting upon information ANF started its filed investigations/surveillance and tasked its sources to get maximum information on the expected transportation of drugs and spared no means to interdict the drugs and arrest the culprits.
(2) Operational Details: During the second week of February 2013, source information reveals that Fateh Muhammad will collect and load the drugs in his truck from general area Sohrab/Yousuf Goth, Karachi (dump sites) for further transportation to Pasni. ANF managed to convert this tip into actionable intelligence and identified Fateh Muhammad and his truck/oil tanker. Consequently an operation was planned and a team was placed at RCD Road Hub, Balochistan to intercept the suspected truck. On 23 February, 2013 ANF conducted a successful operation at RCD Road, Hub, Chowki, Balochistan, intercepted an Oil Tanker and recovered 4260 Kg hashish from the secret cavities of oil tanker, also arrested following key members:-
(a) Fateh Muhammad son of Suleman
(b) Nasir son of Ismail
(c) Shandad son of Shafi Muhammad
(3) A case F.I.R. No,1 of 2013 dated 23-2-2013 under section 9(c), C. N.S.A. 1997 has been registered against the accused persons. Presently, the case is under trial -in C.N.S. Court Quetta and all accused persons are in judicial custody.
(4) The above-mentioned operation is yet another haul made by ANF showing its profession acommitment and competency by interdicting strategic drug shipments and nabbing the salient players of DTOs, ANF pursuit of cooperative efforts with its international counterparts will continue co follow-up the investigations for complete dismantling of such DTOs.
' SEIZURE OF 50 KG HEROIN AT KARACHI (3 MARCH 2013)
(1) Background: This huge drug bust is part of an extended investigation by Anti-Narcotics Force
(ANF) Karachi on a drug trafficking organization (DTO) based at Karachi involved in trafficking of heroin to international destinations on large scale. During the last week of February 2012 our reliable sources/intelligence revealed that the said DTO is planning to send a drug consignment to Malaysia concealed in Onions and they have hired a warehouse, somewhere at Karachi. Where Heroin will be concealed in onions.
(2) Operational Details:---The task was assigned to a dedicated team of ANF, Karachi, who made it all out on the field, used physical and technical surveillance' and after hectic efforts it could determine and locate the subject warehouse, which was near Jubilee Cloth Market, Garden, Karachi. The ANF Karachi team had the warehouse on 24 hours surveillance to make sure the presence of drugs and the traffickers. After prolonged efforts the presence of drugs and traffickers got confirmed and an operation was planned.
(3) Consequently, on 3 March, 2013 a successful raid was conducted by ANF Karachi at the said warehouse during which 50 Kg of Heroin was seized and 4x key members of the subject DTO were arrested at the spot, names are as following:--
(a) Waris Khan son of noor Rehman
(b) Zahid Khan son of Juma Gul Khan
(c) Javed Khan son of Shoaib Khan
(d) Alam Zeb son of Shoaib Khan
(4) This case shows that drug dealers utilize various tricks, and innovative techniques for concealment of drugs to secure their shipments. A case has been lodged against abovementioned four accused persons for further investigations.
(5) A case F.I.R. No,14 of 2013 dated 3 March, 2013 was registered at PS ANF Clifton Karachi.
Presently, the case is under trial in CNS court Karachi and all accused persons are in judicial custody. SEIZURE OF 110 KG HEROIN AT KARACHI (12 March, 2013)
(1) Background:---ANF Karachi has been in pursuit of a DTO involved in transshipment of huge loads of heroin to international destinations from port city Karachi. The trafficking was being organized by a key member of DTO Muhammad Naeem. During first week of March, ANF Karachi through its Confidential Source obtained information regarding a drug supplier namely Saeed Khan, who reached Karachi from Peshawar for making huge drug delivery to Muhammad Naeem.
(2) Operational Details:---Acting upon the information, investigations were made further intensive and the members of this DTO were put under surveillance. ANF stuck to the cause and demonstrated its professional expertise in identifying members of the DTO. Continues surveillance and meticulairs observations exposed that drugs would be transported in a car. ANF teams made further success when drug routes for transportation of drug was also determined,
(3) On 12 March, 2013 ANF Conducted a Successful operation and intercepted a Nissan Tida car at M. A. Jinnah Road, Karachi. During the search, 110 Kgs of Heroin was recovered from the said car and following key members were arrested:-
(a) Saeed Khan Afridi
(b) Ghalib Khan Afridi
(c) Muhammad Naeem Khan
(d) Muhammad Faisal
(4) A case F.I.R. No,15 of 2013 dated 12 March, 2013 has been lodged against above-mentioned four accused persons by ANF for further investigations. Presently, the case is under trial in CNS court Karachi and all accused persons are in judicial custody.
' SEIZURE OF 278 KG HEROIN AT KARACHI (26th April 2013)
(1) Background:---On 20th April 2013, a confidential informer (CI) gave information that a DTO headed by Kaleem Akhtar is busy in transporting a huge consignment of drugs from Khyber Pakhtunkhwa to Karachi for local and international consumption.
(2) Operational Details:---ANF Karachi deputed a dedicated surveillance team to identify the godown and key member of this DTO. On 26th April, 2013 ANF team with the help of CI managed to locate a godown at Plot No, N92-93, Sector 2/J6, Junejo Town AG Garden Karachi. A raid was planned, executed and ANF Karachi managed to seized 278 Kg heroin, a Hyundai Shehzor registration No, KN-0154 and arrested Kaleem Akhtar (Head of DTO) on the spot.
(3) A case F.I.R. No, 10 of 2013 dated 26 April, 2013 has been registered by ANF for further investigations. Accused namely Kaleem Akhtar is in Jail custody, however absconding accuse Sarfraz has joined the investigation after obtaining bail before arrest from the honourable court.
(4) This is one of the biggest heroin seizure case in the field which shows that dedication and hard by work put in ANF".
12. It may not be out of context to note that as far as Anti-Narcotics Force is concerned, it has been established under the Anti-Narcotics Force Act, 1997 and its Director General is a sitting senior Army Officer and in all the provinces, its Force Commanders are sitting Brigadiers from the Pakistan Army, therefore, they should not feel hesitation in any manner to control the narcotics trafficking including matters related thereto under the scheme of Control of Narcotic Substances Act, 1997 specially sections 67, 68 and 69 of the said Act equipped with considerable vast powers.
The provisions of said Act also authorizes them to freeze the assets of the drug traffickers and brought to book the accused persons involved in the drug trafficking etc.
13. The Chief Collector Customs has placed on-.Record a statement (C.M.A. No,852-K of 2013) to share information of the imports relating to arms ammunition in the country for the last three years. On the perusal of the same, one can infer without any fear of contradiction that during the last three years, a huge quantity of arms ammunition was imported by the officials and private agencies like police etc. However, confining to the extent of Karachi the Customs authorities are required to separate the cases of import relating to the Karachi city during the last three years and depute the customs staff to inspect the record of the dealers of arms and ammunition of Karachi to ascertain about the sale of the same within or outside the Karachi. In this behalf the respective Deputy Commissioners of all the districts of Karachi shall also cooperate with them and on having completing this exercise, reports of the same (district wise) shall be handed over to the Inspector-General of Police and the Director General, Rangers so they may physically undertake exercise about the existence or otherwise about these arms and ammunitions and use of the same under the law. The holders of licensed arms and ammunition shall also be required to explain the purpose to purchase the same and in this way the law enforcing agencies shall be in a position to ascertain as to whether the arms and ammunition given to them have been properly used or not. And while physically checking the arms and ammunition the law enforcing agencies may also obtain declarations from the licence holders that except the licensed arms etc. They are not in possession of any un-authorize arm and ammunitions. In case of violation of terms and conditions of the licenses, the law enforcing agencies shall proceed against the violators in accordance with law.
14 We have also asked the Collector to inform that out of 19000 missing Containers, reference of which find mention in Suddle Commission's report, if arms and ammunition has been brought into Pakistan in the name of Afghan Trade, ISAF and NATO etc., the detail of the same be furnished. The Director General Transit Trade states that according to his information, no such arms and ammunitions was brought in these Containers. However, Raja Muhammad Irshad, Senior Advocate Supreme Court while making reference to the two reports furnished by late Hafiz Muhammad Anees on 25-2-2011 and 11-5-2011 stated that these Containers were not checked and examined by the Customs authorities at all.
15. We would not comment in respect of the genuineness of the above report except observing that the Customs authorities have not shown any seriousness to ascertain contents of goods which have been brought into Pakistan in the name of Afghan Trade etc. Under the law there is no restriction or prohibition because Pakistan is a sovereign state and whatever activities shall take place within its boundaries, the law enforcing agencies including Customs Department are bound to discharge their duties to ensure that any import of the goods is not being carried out contrary to law. In addition to the above, it is surprising to note that one of the Containers, reference of which has been mentioned above, instead of crossing the border, found loaded with liquor at Taxila near Rawalpindi. We believe separate proceedings are pending and shall be decided separately by the competent Court of law. Therefore, we may not dilate upon this aspect of the missing Containers in depth. However, we may observe the(sic.) competent authorities may look into this matter and ascertain who is responsible to allow the Container in which liquor was recovered subsequently and submit report on the next date of hearing.
16. Learned Attorney-General in response to our observations contained in the order dated 31-10- 2013, has filed a report (C.M.A. No, 850-K of 2013) and stated that a plan has been devised in order to ensure full implementation of the short points, reproduced below:-- "(1) What are the immediate steps, which are being taken by the FBR to ensure zero tolerance in evasion of taxes in Karachi.
(2) How the movement of black money through Banks and other institutions can be stopped by the FBR.
(3) What are actions proposed by the Preventive Wing of Customs Department to ensure complete prevention of entering of arms and ammunition in Karachi by using Customs force, Pakistan Coast Guards and Pakistan Maritime Security Agency etc.
(4) What actions the Anti Narcotics Force contemplates to take against the drug barons.
(5) What is the plan of the Provincial Government to launch campaign for cleansing the Karachi from all kind of unauthorized/illicit arms ammunition as the people had not cooperated with the Government as it was expected that they will hand over the illicit arms ammunition as it is necessary in view of the judgment of this Court in the case titled Watan Party v. Federation of Pakistan (PLD 2011 SC 997) wherein it has stated that Karachi is required to be cleaned from all sorts of arms and ammunition".
17. As far as questions at serial Nos. 1, 2 and 3 are concerned, there is no necessity to discuss in detail as the FBR is about to follow a course of action as it has been noted in the above referred C.M.A. However, we would appreciate to have the impact of the performance of the FBR as per proposed devised plan by filing a report after 7 days before the Registrar of this Court for our perusal in Chambers.
18. As far as point No, 4 is concerned, in this context a report (C.M.A.851-K of 2013) has also been filed on behalf of Narcotics Force separately. Let the ANF execute its plan, noted in the report, and similarly submit report within a period of 7 days before the Registrar of this Court for our perusal in Chambers. So far as question mentioned at Serial No, 5 is concerned, the learned Advocate General stated that he has already worked out a plan which he would not like to disclose to maintain the confidentiality. However, if need be, the same shall be shared with the Court on the next date of hearing.
19. After holding the hearing of the case and in view of the submissions of the parties, we are confident that it should be top most priority of all the law enforcing agencies to make all out possible efforts with a single most important agenda to ensure rule of law and restoration of the writ of the Government in Karachi. The measures which are required to be adopted, as discussed herein above in detail, are directed to be taken specially after the report filed by the one-Man Commission Muhammad Ramzan Bhatti, former Member Customs. The Secretary Interior, Secretary Revenue/Chairman, FBR, the Secretary Finance and the Chief Secretary, Government of Sindh shall provide all possible efforts/support to all the law enforcing agencies in order to show the results as per the commitments of both the Provincial and Federal Governments.
20. The matter is adjourned for 11-11-2013 at Islamabad.
21. The applications which have been filed by Raja Muhammad Irshad, Senior Advocate Supreme Court and others shall be taken up on the next date and if the applicants appearing in all the CMAs are not in a position to attend the Court at Islamabad, their matter shall be heard at Karachi during the week commencing from 25-11-2013.