1. AZIZ-UR-REHMAN, J.--- Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner is seeking a drastic action against private Respondent No.10 and each sole proprietor of Respondents Nos.11 to 13 respectively under/through the direction by this Court to Respondents Nos.1 to 7, inter alia regarding securing the Export Processing Zone from culprits i.e. Respondents Nos.10 to 11 of their theft of taxes, other revenues forgeries, misappropriation and corruptions etc., stated to be committed by Respondents Nos.10 to 13.
2. Briefly stated, the Petitioner is a citizen of Pakistan and Respondent No.10, according to him, is a private agent at Export Processing Zone Karachi, [In short EPZ] and performing functions in his capacity as an agent of Respondents 11 to 13, of whom each one is a proprietor of the companies/proprietorships named in the title of Memo. of Petition [in short MoP] The Respondent No.10, used to clear the liabilities of Respondents Nos.11 to 13 in the Export Processing Zone, Karachi, and has thus usurped billion of rupees as per Petitioner's version with the help of concerned staff of EPZ Karachi. And as asserted, this practice of usurpation, theft, etc. is going on since long.
2. According to the Petitioner, it is the Petitioner's partner namely Sajjad Ahmed son of Mushtaque Ahmed, who is working in EPZ, Karachi, somehow, has got knowledge about the evasion of taxes / usurping of the huge amounts by Respondents Nos.11 to 13 ex-facie, with the help of private Respondent No.10. The fact of such evasion of taxes was, nevertheless, brought to the knowledge of higher authorities of EPZ, Karachi. The concerned higher authority[ies], thereafter, though have investigated the matter upon lodging of FIR No. SI / MISC / 42 / 2017 / CUS/EPZ by one Mr. Ejaz Ali, Examining Officer of Customs on 19.01.2017 against culprits / Respondents Nos.11 to 13 but no legal action, so far, has been taken against Respondents Nos. 10 to 13 or any of them.
3. 3.Upon coming to know about lodging of the aforesaid FIR, Respondents Nos. 10 to 13, thereafter have also lodged a false and fabricated FIR at P.S. Sukhan, District Malir, Karachi, against the Petitioner's partner namely, Sajjad Ahmed S/o Mushtaque Ahmed, who according to Petitioner's version, is working in EPZ Karachi just to take revenge from him due to lodging of the aforesaid FIR.
4. The brother of Petitioner's partner namely Muhammad Ilyas son of Mushtaque Ahmed, thereafter, as stated , has moved many applications/complaints to the higher authorities including Respondent No.4, for taking legal action against Respondents Nos.10 to 13 but, as alleged, no any legal action has been taken against the said culprits. Apart from the above, some 42 containers were also found missing and in respect thereof publications have been made in daily Newspapers i.e. Daily 'UMMAT' dated 24.4.2017 and 9.6.2017, Daily 'AUSAF', Karachi dated 21.7.2017, and monthly 'RAFTAR' of July, 2017 inter alia vis--vis the losses allegedly caused/being caused to the EPZ, Karachi. Besides, Respondent No.11, who is sole proprietor of AAA Packages Company/Respondent No.11, has obtained 36 Import Gate Passes including Baggage Declarations and Landing Bills for . about 36 containers but the said 36 containers, according to the Petitioner's version, have been actually sold out by the Respondent No.11, seemingly with the help of Respondent No.10 and some staff persons of Export Processing Zone, Karachi.
5. 4.For and in view of the above, the Petitioner has filed the instant petition on 11.08.2017 with prayers as follows:-- "(a). To direct the Respondents Nos.1 to 7 to take drastic legal action against the respondents Nos.10 to 13 accordingly and to do some strenuous efforts in addition to secure the Pakistan Processing Zone from such culprits towards the theft of taxes and other revenue.
6. (b)To direct the Respondents Nos.8 and 9 to probe in the matter and register the cases against the Respondents Nos.10 to 13 for committing such forgeries, misappropriation, corruption and evasion of billions of taxes/revenue of Pakistan Export Processing Zone Karachi in the public interest.
7. (c)Any other relief or relieves which this Honourable Court may deem fit and proper under the circumstances of the case.
5. On 12.09.2017 when the above petition came-up before the Court then, the following order was passed: "12.09.2017 None present for the petitioner.
8. Petitioner and his counsel called absent, no intimation is received. From perusal of the contents of instant petition and the prayer clause, instant petition appears to be misconceived and not maintainable. However, since no one is in attendance on behalf of the petitioner, we are adjourning this matter to 22.9.2017 with direction to the learned counsel for the petitioner to satisfy this Court as to maintainability of instant petition on the next date of hearing, failing which instant petition will be dismissed for non-prosecution."
9. 6.On 22.09.2017, the counsel for the Petitioner did appear before the Court and tried to convince the Court about the maintainability of the instant petition but despite his efforts he however, could not satisfy/convince the Court about maintainability of the instant petition on the basis of general allegations of 'theft of taxes', 'other revenues', 'forgeries', 'mis-representation', 'corruption', allegedly committed by private Respondents Nos.10 to 13.
10. 7.As evident from the facts and circumstances of the case in hand, the partner of the Petitioner namely Mr. Sajjad Ahmed son of Mushtaq Ahmed, has already registered/lodged FIR regarding the alleged 'theft of taxes', 'other revenues'. 'forgeries', 'mis-representation', and 'corruption' against the alleged accused/Respondents, who per assertion of the Petitioner, in turn, have also registered a counter FIR against the Petitioner's partner. The present Petitioner, it appears, has become annoyed on account of such FIR lodged/registered by Respondents Nos.10 to 13 through Respondent No.10 at P.S. Sukhan, District Malir, Karachi, on the allegations of kidnapping of someone, has approached this Court by way of the above petition manifestly, on the basis of same allegations. It is needless to say, on the complaint of the Petitioner's partners a criminal case No.SI/MISC/K2/2017/Ep2 Karachi, has already been registered and investigated by Mr. Aijaz Ali, Examining Officer of Customs.
11. 8.As far as the Petitioner himself is concerned, at no stage he has made any complaint or otherwise, has asked for any inquiry viz-a-viz. the allegations of theft of taxes/other revenues, forgeries, misappropriation, and corruption against Respondents Nos.1 to 13 before any concerned authority[ies]. The Petitioner, thus besides, being not an aggrieved person has failed and/or avoided to seek any alternate remedy available/provided by law. On this aspect of the matter viz- a-viz. non-maintainability of the petition, reference can be made to the case of Adamjee Insurance Company Ltd. v. Pakistan through the Secretary of Government of Pakistan in the Ministry of Finance, Islamabad and 5 others [1993 SCM R 1798]. The relevant portion/observation therefrom reads as follows: 8....The question of maintainability of the Constitutional petition, therefore, needs a little closer examination and the necessity to evaluate the appellants' submissions on merits would arise only if the doctrine of alternate remedy is found to have been misapplied by the High Court. It will be seen that under Article 199 the High Court is empowered to issue a writ, if as borne out from Sub- Article (1) "it is satisfied that no other adequate remedy is provided by law". Sub-Article (1) thus, confers on the High Court a discretion of fairly wide amplitude but at the same time it imposes a responsibility on the High Court to exercise the discretion with some circumspection. The satisfaction of the High Court envisaged by sub-Article (1) that no other adequate remedy provided in law is available to the aggrieved party, is condition pecedent or exercise of jurisdiction under Article 199. It was in exercise of this power that the High Court refused to intervene. The question is whether this refusal is improper and not guided by judicial consideration. If the exercise of the discretion by the High Court is not found to be unreasonable and perverse, it is the settled practice of this Court not to interfere with such discretion. In this connection it has already been noticed that so far as Habib Insurance Company is concerned, they filed appeals against the additional assessments, but simultaneously sought their removal through judicial review. Ordinarily when the aggrieved party itself goes for appellate remedy provided by the Statute under which the impugned order is rendered, such remedy by conduct of the party, is to be considered as adequate and should be perused unless some positive reasons are discovered indicating that it is not equally efficacious.... [Emphasis supplied].
12. 9.Moreover, the controversies involved in the instant petition besides, being factual in nature cannot be established/settled in absence of undertaking of an intricate inquiry/recording of evidence for ascertaining the true position. In view of this position as well, the controversy[ies] involved in this petition is/are not cognizable by this Court under the exercise of Constitutional Jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. It is worth to note that extraordinary Constitutional Jurisdiction is meant primarily for providing swift remedy in those cases where legality or illegality of the executive/authority[ies] can be established/ascertained without an intricate inquiry/recording of evidence. The element of 'theft of taxes', 'other revenues', 'forgeries', 'mis-representation', 'corruption' cannot be established without conducting proper inquiry/investigation in the appropriate proceedings and that too after providing proper/fair opportunity of hearing to the accused persons in accordance with law. Regarding this aspect of the matter reliance can be placed on the case of Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others [2006 SCM R 219] wherein, it was held as under:- "We are mindful of the fact that under constitutional jurisdiction the High Court is fully empowered for enforcement of the fundamental rights but it must be satisfied with such allegations which are well-founded, without any bias and based on concrete evidence. It may be kept in view that the main object of the provisions as contained in Article 199 of the Constitution is the of rights and in such view of the matter the petitioners who seeks to enforce such legal ri hg is must be specific, precise, clear and unambiguous and besides that there must be an actual infringement of the rights so asserted. State of Bombay v. United Motors Ltd. AIR 1953 SC 252, State of Orissa v. Ram Chandra AIR 1964 SC 685. [Emphasis supplied].
13. 10.Per averments made in the instant petition, it appears that the petitioner has become annoyed on account of a criminal case registered by private Respondents Nos.10 to 13 against the Petitioner's partners namely Saliad Ahmed son of Mushtaq Ahmed who is working in Export Processing Zone, Karachi. The instant petition, as such, ex-facie is aimed to protect the Petitioner's personal interest. For this reason as well, the instant petition is liable to be dismissed.
14. 11.Regarding the allegations of 'theft of taxes', 'other revenues' 'forgeries'. 'mis-representation', and 'corruption', if any, by private Respondents Nos.10 to 13, the Petitioner, no doubt, is at liberty to approach the appropriate forum/fora through initiating suitable proceedings, if so advised. The allegations of forgery etc. and questions relating thereto are complicated questions which, indeed, could not be resolved/decided and/or otherwise, in respect thereof, any direction be issued by this Court without recording of evidence and carrying out proper investigation much-less, in its Constitutional Jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
15. On this aspect of the matter reliance can be placed on the case of Mst. Umat ul Bano and others v.
16. Ghulam Muhammad and others [2000 SCM R 81].
17. The relevant extract therefrom, reads as follows: ...................................................................
8. ... We are inclined to hold that the above appeals involve complicated, disputed questions of facts including the questions as to whether forgeries have been committed inter alia by fabricating orders of the Custodian dated 19-1-1960 and or any of them or any other orders and by whom. The above questions could not have been decided by the learned Single Judge in exercise of Constitutional jurisdiction. The perusal of the judgment under appeal indicates that the learned Judge in Chamber without recording any evidence on the basis of his visual examination of the record concluded that out of the above two orders dated 19-1-1960 one of them is genuine and the other is a forged one. Such a finding could not have been recorded in exercise of Constitutional jurisdiction, particularly without affording the opportunity to the affected parties to produce the evidence and to cross-examine the witnesses of the other side. [Emphasis supplied]
12. Moreover, the Petitioner could not be allowed to render the alternate remedy as redundant through instant petition i.e. by way of bypassing the proper forum/fora. Needless to say, it is trite proposition of law that whenever, there is an alternate remedy available, then Constitutional Jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, would not be invoked. Reliance in this regard can be placed on the case of Indus Trading and Contracting Company v. Collector of Customs (Preventive). Karachi and others [2016 PTD 2355]. The relevant extract from the aforesaid case of Hon'ble Supreme Court of Pakistan is reproduced here-in- below:- 4..... the appellant ought to have challenged the same before the forum provided under the Customs Act. Instead of doing that, the appellant invoked the jurisdiction of the High Court under Article 199(1) of the Constitution of Pakistan. Ordinarily, the jurisdiction of the High Courts under Article 199 of the Constitution should not be invoked where alternative forum under a special law, duly empowered to decide the controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi judicial or judicial officers who with their specific knowledge expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law resorting to the provisions of Article 199(1) of the. Constitution as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been overburdened with a very large number of such cases. This in true results in delays in the resolution of the dispute as a large number of cases get decided after several years. These cases ought to be taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provision of Article 199(1) of the Constitution which confers jurisdiction on the High Court only and only when there is adequate remedy is available under any law. Where adequate forum is fully functional, the High Courts must deprecate such tendnency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy relates.
18. We could have relegated the appellant to seek remedy before the appropriate forum, however, as the dispute in the present case is now more than twenty years old, we for this reason only as matter of indulgence proceed to decide the controversy on its merits." [Emphasis supplied]
13. It is a well settled proposition of law that superior Courts do not involve themselves in the investigation of disputed and controverted questions. Only those questions, which are clear, legal and not open to any doubt, or otherwise, controverted can be looked into and decided in the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
19. Reliance in this regard can be placed on the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCM R 1813]. The relevant portions therefrom read as follows:-- "10. ...It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy.
20. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse." (M. H.
21. Abidi v. State Life Insurance Corporation 1990 MLD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).
11. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquire into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only be courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280).
22. 13.... There is no cavil to the proposition that "it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of..." [Emphasis supplied].
23. 14.For and in view of the above, on 22.9.2017, while, reaching the conclusion that above Constitutional Petition besides, being misconceived, not maintainable and devoid of any merits, was dismissed in limine along with pending applications, however, with no order as to costs.
24. 15.These are the reasons for our short order dated 22.9.2017.
25. 16.Petition stands dismissed accordingly.