YAHYA AFRIDI, J.---Through this single judgment, this Court propose to dispose of eleven Criminal Revision petitions, as they all arise out of an order dated 17-2-2014 passed by the learned Special Judge Customs, Taxation and Anti-Smuggling Peshawar, and also have common questions of law involved therein. The particulars of the petitions are as under:--
(1) Criminal Revision No,51-P/2014 with Criminal Miscellaneous No,147-P/2014. (Muzamil Hussain v.
The State).
(2) Criminal Revision No,52-P/2014 with Criminal Miscellaneous No,149-P/2014. (Farukh Mehmood Butt v. The State).
(3) Criminal Revision No,74-P/2014 with Criminal Miscellaneous No,194-P/2014. (Mansoor Ahmad Khan v. The State).
(4) Criminal Revision No,75-P/2014 with Criminal Miscellaneous No,199-P/2014. (Mansoor Ahmad Khan v. The State).
(5) Criminal Revision No,76-P/2014 with Criminal Miscellaneous No,201-P/2014. (Mansoor Ahmad Khan v. The State).
(6) Criminal Revision No,77-P/2014 with Criminal Miscellaneous No,203-P/2014. (Khurram Shahzad v.
The State).
(7) Criminal Revision No, 78-P/2014 with Criminal Miscellaneous No, 205/2014. (Muhammad Waris v.
The State).
(8) Criminal Revision No,79-P/2014 with Criminal Miscellaneous No,207-P/2014. (Sardar Ali v. The State).
(9) Criminal Revision No,80-P/2014 with Criminal Miscellaneous No,209-P/2014. (Usman Rahim v.
The State).
(10) Criminal Revision No,81-P/2014 with Criminal Miscellaneous No, 211-P/2014. (Abid Hussain v. The State).
(11) Criminal Revision No,82-P/2014 with Criminal Miscellaneous No,213-P/2014. (Malik Tariq Mehmood v. The State).
2. In all the Criminal Revision Petitions, the petitioners, praying that:- "It is, therefore, respectfully prayed that this revision petition may kindly be accepted, impugned order dated 17-2-2014 passed by the learned Special Judge Customs, Taxation and Anti-Smuggling Peshawar be set aside and consequently the proceedings against the petitioner initiated under the provisions neither attracted nor applicable and pending in the court of learned Special Judge may kindly be quashed."
3. The petitioners had submitted applications before the worthy Special Judge Customs, Taxation and Anti-Smuggling, Khyber Pakhtunkhwa, Peshawar, ("Trial Court") under section 265-K of the Criminal Procedure Code, 1898 ("Cr. P.C.") for their acquittal in case FIR's Nos.1, 2, 8, 9, 10, 11 and 53 of 2013, FIR's Nos.77, 89, 90, 91, 92 and 93 of 2012 ("FIR's"). The worthy Special Judge Customs, Peshawar, through a single order dated 17-2-2014, disposed of all the petitions in terms that:-- "Regardless of the observation of 8(1), above, there is no ground for acquittal of accused as all probabilities cannot be said to be ending on acquittal but acquittal. There are other probabilities as well. As regard legality of cognizance of this Court, it is held that this Court has rightly taken the cognizance and if any errors are there they can be cured by the court itself and no irregularity has been pointed out which can be taken to vitiate the proceedings of this Court."
As a consequence all the applications under section 265-K, Cr. P. C. Are rejected."
4. In essence, the facts leading to the petition, according to the prosecution are that the Collectorate of Customs, Model Customs Collectorate, Peshawar ("Revenue"), registered cases against more than 13 companies alleging that they imported input goods without payment of duties and taxes on the basis of manufacturing Bond License granted by respective Collectorate under sections 13 and 95 of the Customs Act, 1969 ("Act"), through Collectorate of Customs Karachi, transshipped the said goods to their manufacturing Bonds, utilized the same in manufacturing of MS Pipes, which were illegally disposed of in local market by showing flying export to Afghanistan and thus, by misusing the benefit of S.R.O. 450(1)/2001 dated 18-6-2001 evaded duty and taxes which were leviable at import stage; that the cases registered against the above companies for offences punishable under sections 156(1)(8)(14) (89) read with sections 2(s), 16, 18, 32, 32-A, 157, 167 and 178 of the Act, read with S.R.O. 450(1)/2001 dated 18-6-2001, which, relate to smuggling, dealing with smuggled goods and mis-declaration.
5. The learned counsel for petitioners vehemently contended that there is no allegation against any of the company that it has smuggled goods into the country and the goods in question were neither mentioned in clause (i) nor notified by the Federal Government under clause (ii) nor smuggled through place mentioned in clause (iii) of subsection(s) of section 2, and as such clause
(8) of subsection (1) of section 156 of the Act, is not attracted at all; that MS Pipes, are neither appearing in clause (i) nor S.R.O. 566(I)/2005 dated 6-6-2005 issued under clause (ii) nor brought into the country through route mentioned in clause (iii) of subsection(s) of section 2 and as such clause (8) of subsection (1) of section 156 of the Act, has wrongly, illegally, malafidely and dishonestly been invoked in this case; that if these goods being not notified by Federal Government under section 2(s) of the Act, were found to have been brought into the country, without payment of duties and taxes, through authorized route, the clearance Collectorate at the best can charge the concerned person under clauses (9) and (90) of subsection (1) of section 156 of the Act, which carry penalty of civil nature and not criminal liability; that sections 32 and 32A punishable under clauses (14) and (14A) of section 156(1) of the Act are related provisions; that all the petitioners companies neither made any mis-declaration nor presented any false document at import stage and that the consignments were lawfully imported under the benefit of concessionary notification read with sections 13 and 95 of the Act, as such clauses (14) and (14A) of section 156(1) are not attracted in this case; that the appropriate provision to be invoked is clause (10-A) of section 156(1) of the Act, which deals with misusing of any concession or exemption granted under various notifications; that the cases registered for the offences, which were neither attracted nor constituted nor committed by these companies and as such the impugned FIRs, were challenged before this Court by filing Constitutional Petitions, which were disposed of vide consolidated order dated 26-3-2013; that the Collector Customs (adjudication), Peshawar, issued show-cause notices to all the companies for determination of their liabilities and replies were submitted, wherein certain legal objections with regards to the jurisdiction of the said Collectorate to deal with these cases, were raised, and the show-cause notices are still pending adjudication and no liability of any company has been determined so far. He placed reliance upon Collector of Custom's case (1973 SCMR 411), Sattar Gul's case (PLD 1979 Peshawar 119), Salooka Steel Ltd's. Case (PLD 1981 Quetta-01), Batoor Khan's case (1990 PCr.LJ Peshawar-1155), Mr. Muhammad Farooq's case 2004 PCr.LJ 1958, Misco Corporation's case (2006 PTD 378), Messrs Yasir Enterprises's case (2013 PTD 821)
S.Ch.Niaz Ahmed's case (PLD 1978 Karachi 774), Syed Shabbir Ahmed Shah's case (1979 Karachi 68), Mrs. Hiam Tabbara's case (PLD 1980 Karachi 44) and Shabbir Ahmed Shah's case (1980 PCr.LJ 349).
6. The learned counsel representing the Customs Department vehemently rebutted the arguments of learned counsel for the petitioners and contended that ultimate destination of the consignments of goods to Afghanistan was 'via' Custom Station Torkham (Model Customs Collectorate), Peshawar; that as per section 179 of the Cr.P.C., the consequences of the illegal actions of petitioners issued within the jurisdiction of Customs Collectorate, Peshawar and the trial of these cases has been conducted in the Court of Special Judge, Customs, at Peshawar; that 'challans' in the cases will be submitted under section 161 subsection (13) of the Act; that the petitioners have committed fraud as defined under section 32-A punishable under clause (14-A) of section 156 of the Act; that the applications under section 265-K of Cr.P.C. Filed by the petitioners have been correctly dismissed by the trial Court on merits.
7. Valuable arguments of learned counsel for the parties heard and record perused.
8. Other than two jurisdictional grounds taken by the present petitioners in challenging the impugned order of the worthy Customs Judge, require further evidence to be recorded, for this Court to appropriately consider and adjudicate the same. Moreover, least this Court passes any finding thereon would surely be not appropriate at this stage, as it would prejudice the case of the parties during the trial. Thus, apart from the two jurisdictional issues, the other grounds were rightly dispelled by the trial Court, while considering the applications of the petitioners for their acquittal, under section 265-K of Cr.P.C.
9. Moving on to particulars of the two jurisdictional issues, and the opinion of this Court thereon, it is noted that: ISSUE NO.1.
That under the Act, before any penal proceedings to be initiated, adjudication proceedings have to be positively concluded in favour of the Revenue.
This issue has been a matter of extensive legal debate and was finally resolved in Mehmood Ahmad Qureshi's case (2002 SCMR 1527), wherein the Apex Court relying on the 'Ratio decidenti' in Adam's case (PLD 1969 SC 446), Muhammad Sarwar's case (1988 PCr.LJ 212) and Sabro's case (1992 PCr.LJ 1795) clearly laid clown that:- "It is an established law that criminal proceedings, before Special Judge are judicial proceedings while proceedings conducted before Customs Authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject matter, yet, they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the Customs Authorities relating to adjudication proceedings. These proceedings go side by side but do not mingle. Customs Authorities and any order of the Custom Judge would not, ipso facto, overrule, the decision delivered by the Custom Officers in adjudication proceedings, nor the acquittal of the accused would nullify the effect of the adjudication proceedings, unless the said proceedings on their own strength were contrary to law and against the principles of natural justice."
In view of the clear dicta of the Apex Court, both proceedings adjudication by the Customs redressal hierarchy provided under the Act and the trial before the Custom's Judge, can proceed simultaneously and that too independently. Thus, it would not be appropriate for this Court to agree with this submission of the worthy counsel for the petitioners.
10. As far as the decision of Lahore High Court in Writ Petition No,5047 of 2012 decided on 19-9-2013, which was vehemently relied upon by the learned counsel for the petitioners, it is noted that the said case relates to an issue, arising out of The Sales Tax Act of 1990 and not the Act. Moreover, in view of the decision of the Apex Court delivered in Mehmood Ahmad Qureshi's case (Supra), specifically relating to the provisions of the Act, this Court is bound by the Constitutional command to follow the decision of the Apex Court.
ISSUE No,2.
That PVC Pipes are not notified goods under section 2(s) of the Act and thus, at best the petitioners be proceeded under clauses (9) and (90) of subsection (1) of section 156 of the Act.
11. It is the domain and mandate of a trial Court, to first review the case put up before it by the prosecution/Revenue; 'Challan' and the record therewith, and then to frame the 'charge' against the accused. This authority of the trial Court remain intact, during the proceedings of the trial, and in case the evidence produced by the parties constitute an offence punishable other than one for which the accused is charged, the trial Court has the legal mandate to amend the charge already framed.
12. In view of the above, it would not be appropriate for this Court to 'clog' or preempt the authority of the trial Court for trying the B petitioners. In case, evidence produced by the parties, constitute an offence provided under clauses (9) and (90) of subsection (1) of section 156 of the Act, the charges so framed by the trial Court can surely be amended, at any stage of the trial. Thus, this court shall not preempt the discretion and authority of the trial Court, in its proceedings with the trial of the petitioners.
13. Accordingly, for the reasons stated hereinabove, the impugned order of the Customs Judge dated 17-2-2014 is in accord with safe dispensation of criminal justice, hence warrant no interference by this Court, and that too in its revisional jurisdiction.
Thus all the Revisions petitions with Criminal Miscellaneous being devoid of merits are dismissed.