FAHIM AHMED SIDDIQUI, J.---Since both the above-mentioned criminal matters are interlinked, and the impugn ed order is also one and the same; therefore, this single order will suf fice for their disposal.
2. The factual matrix of the case is that the customs officials lodged FIR No. SI/Misc./38/2015/Cus/EPZ against the applicants and others under several pena l sections of the Customs Act, 1969 (hereinafter referred as 'The Act'). Per FIR, M/s Paramount Spinning Mills Ltd, Lahore imported 50 consignments into tariff area from Messrs YKK Pakistan (Pvt.) Ltd., Export Processing Zone, Karachi. The importer filed 50 Goods Declarations (GDs) through different Customs Clearing Agents. Upon scrutiny of those GDs, it was found that amongst them 34 GDs (filed by the Clearing Agent M/s Aliz International) involved duty/tax of Rs. 44,92,494/-; 10 GDs (filed by the Clearing Agent Messrs Hi-ness Enterprises) involved duty/tax of Rs. 13,33,993/- and 06 GDs (filed by the Clearing Agent Messrs Union Enterprises) involved duty/tax of Rs. 28,41,803/-, and all of those 50 consignments were released under SRO 492(I)/2009 without payment of chargeable duty and taxes on indemnity bonds and post-dated cheques. After expiry of the stipulated period, the notices were issued to the importer but they remained undelivered. During investigation, it was deciphered that the accused persons in connivance of each other deprived the government exchequer from the duty to the tune of Rs. 67,54,161/-.
3. After lodgment of F.I.R., the applicants were facing trial and during pendency of their trial, two different applications were moved under Section 265-K, Cr.P.C. before the trial Court on behalf of the applicants Ali Afzal Shaikh and Shaikh Riaz Ahmed respectively for their pre-mature acquittal during the trial but both the applications were dismissed through impugned orders dated 09-03-2017. Applicant Shaikh Riaz Ahmed challenged impugned order by filing Special Criminal Revision Application No. 65/2017 while applicant Ali Afzal Shaikh preferred to challenge the same by filing Special Criminal Miscellaneous Application No. 80/2017 under the inherent criminal jurisdiction of this Court.
4. I have heard the arguments advanced by the learned advocates representing both the applicants and also considered the submissions made by the learned Special Prosecutor (Customs).
Special Criminal Miscellaneous Application No. 80 of 2017
5. Mr. Ali Zaheer , the learned counsel for applicant Ali Afzal Shaikh has preferred his submissions at length. He opens the arguments by pleading the innocence of the applicant. According to him, the applicant was an employee of Paramount Spinning Mills at the time of the alleged offence and at that time he was neither director nor CEO of the company . He submits that the zippers were imported and some of them were used in the exported items but allegedly the remaining could not be exported. According to him, in all 50 cheques were issued, amongst them, 45 cheques were signed by Mr. Ejaz All but neither he was arrested nor was made an accused. According to him, only five cheques were assigned by the applicant and the applicant has denied his signatures on those cheques but neither his admitted signature was compared with those cheques nor the same were sent for expert examination.
He submits that if any fraud was committe d than the same was done by the company or the then management but not by the applicant. He submits that even the Chairman and the other Directors of the company were acquitted but an innocent person was falsely involved by making him scapegoat. According to him, the Chairman/CEO and other Directors all are responsible for defrauding but there was a pick and choose in the instant matter . He submits that no doubt the applicant was a shareholder and subsequently he was elevated to the post of the Director but at the time of alleged offence he was only an employee and an ordinary shareholder . According to him, the applicant, later on, resigned from the directorship and since April 2014 the applicant did not attend any meeting of the company . He submits that on account of some disputes with the management, the applicant was falsely involved in this case. He further submits that the applicant was involved on the basis of a statement of co-accused, which is inadmissible under the law. He relies upon the cases reported as Khan Muhammad Yusuf Khan Khattak v. S.M.
Ayub and others (PLD 19173 Supreme Court 160), Asghar Ali v. State (PLD 2003 Supreme Court 250), Messrs Al-Hamd Edible Oil (Pvt.) Ltd. and others v. Collector of Customs and others (2003 PTD 552), Collector of Customs v. Hilal Muhammad (2003 PTD 562) and Shaikh Rashid Ahmed v. Assistant Collector (2006 PTD 1207 ).
Special Criminal Miscellaneous Application No. 80 of 2017.
6. Barrister Mohsin Shehwani for applicant Shaikh Riaz Ahmed submits that the case against the applicant was made in a hurry and without fulfilling the mandatory requirements. According to him, the exemptions were granted for 18 months and post-dated cheques were issued and before taking any action, proper notices should be issued but factually no notice was served upon the applicant. He submits that amongst the Directors, some Directors have already been resigned when the alleged offence is said to be committed but this fact was also not considered by the investigating agency . He submits that the applicant has neither issued the cheques nor he is a signatory of indemnity bond, as such the ingredients of mens-rea and actus-reus are missing. Being critique to the finding s of trial Court regarding the pre-mature filing of the application under Section 265-K, Cr.P.C., he submits that such application can be filed at any stage. He draws attention to the fact that in this case there was no loss to public exchequer as before submission of the final challan, the entire outstanding amount was paid by the company . He emphasizes that if proper notices were served, the amount must had been paid at that time. He submits that in the instant case adjudication regarding tax invasion was also carried out but before passing of the Order-in-Original, the company had already paid the entire amount. He draws attention towards the fact that even after payment of the entire amount under Order-in-Original, some fine was imposed as well as the accused persons were penalized by imposing penalty , which was also paid off. He further submits that after payment of the penalty , the trial by the criminal court amounts to double jeopardy , which is unconstitutional. In support of his arguments, he relies upon the cases reported as State v. M. Idrees Ghauri (2008 SCMR 1118), Shaikh Rasheed Ahmed v. Assistant Collector of Customs (2006 PTD 1207 ), Achar Ali v. State (PLD 2003 SC 250), Assistant Director v. Messrs B.R. Herman and others (PLD 1992 SC 485), Messrs Kamran Industries v. The Colle ctor of Customs-Export (PLD 1996 Kar . 68) and Messrs S.T . Enterprises v . Federation of Pakistan (PTCL 2000 CL. 330) (sic).
7. Ms. Dil Khurram Shaheen, the learned Special Prosecutor (Customs), supports the impugned order overwhelmingly . According to her, the prosecution has ample evidence against the applicants and it is able to establish its case during trial. She submits that it will be better to carry on the trial so that the matter may be threshed out properly . She further submits that the accused persons have misused a facility obtained under SRO and instead of re-exporting the imported items by using them in finished goods, they sold out the same in the local markets at a higher price and caused loss to the public exchequer . She admits that the adjudication was also carried out against the applicants but her contention is that the prosecution for criminal and civil liabilities can be done simultaneously . However , in response to a query , she admits that besides recovery and imposition of the fine, the cash penalty was also imposed upon the applicants. She admits that the entire amount has been paid with fine and penalty but according to her the same was done after lodgement of FIR as such the applicant must face trial.
On a query , she verifies that the paymen t was made in adjudication and prior to submitting of final challan in trial Court.
8. The investigation officer of the case is also present in Court, on a query , he informed that out of fifty (50) cheques, only five (05) cheques were issued by the applicant Ali Afzal Shaikh while remaining were issued by one Ejaz Ali Shaikh, who is not accused. He explains that since his name was not in the list of Directors collected from FBR and SECP; therefore, he was not nominated as an accused.
9. After hearing the arguments advanc ed, I have gone through the available record in the light of valued submissions made before me.
10. In the instant matter , certain aspects require consideration which goes up to the root of the present case. The applicants have some connection with Messrs Paramount Spinning Mills Ltd, which according to the prosecution of some administrative or managerial capacity . The cheques were issued by one of the applicants for the company , which is a limited company . Some of the cheques were issued by the applicant Ali Afzal Shaikh, not in his personal capacity but on the behalf of the company . These cheques were also coupled with some indemnity bonds signed by the signatories of those cheques. The indemnity bonds were furnished as per the notification as an assurance of the encashment of those cheques. It is also noteworthy that the indemnity bonds were also issued on behalf of the company .
11. In the instant case, the FIR was lodged by levelling allegations against Messrs Paramount Spinning Mills Ltd. and in Final Challan, all the Directors and Chief Executive of the company were nominated by their names. The cheques and indemnity bonds were issued on behalf of the company , but one of the signatory i.e. Mr. Ejaz Ali, who issued the majority of cheques, was not made accused in the case. It is also worth noting that the remaining accused have shifted their burden upon applicant Ali Afzal Shaikh, which is wrongly given due weight by the Investigation Officer as well as the trial Court. It is momentous to reproduce para 10 of the final challan, which reads as: "subsequent to the filing of interim Challan No. Sl/Misc. / 38/2015/EPZ/CVs dated 05-06-2015, before this Honourable Court, the spell of investigation was broadened and entire case record was scrutinized to conclude the investigation. In the meantime, Messrs Paramount Spinning Mills Ltd. forwarded later choose to dated 04-06-2015 (received on 05-06-2015), intimating therein that Ali Afzal Sheikh being Managing Director was running the entire affair of the company . In this regard the company had delegated are the powers to the said Managing Director and the unit was working under his exclusive control, all the departments/staff including import and export were being supervised by him. Moreover , they nominated accused Directors of the company have already resigned prior to the subject transaction and they have not signed any of the document/indemnity Bond/Cheques/PDCs in respect of the import of 50 consignments."
12. It is also revealed from the final challan that Messrs Paramount Spinning Mills Ltd informed through letter dated 17-06-2015 that the Managing Director (i.e. applicant Ali Afzal Sheikh) has left the job about a year back without handing over the factory/record. On the basis of the said letter , it is mention ed in the challan that Messrs Paramount Spinning Mills Ltd informed that all the matters pertaining to business of company , factory at Lahore, import and export etc. were dealt by applicant Ali Afzal Sheikh. It is also disclos ed in the final challan that the documents of re-export for an amount of Rs.21 1,651/- out of the amount of FIR have also been located, as such the amount of invaded tax mentioned in the FIR is not correct. The final challan also revealed that M/s. Paramount Spinning Mills Ltd has forwarded a bank draft for an amount of Rs. 65,42,510/- in favour of Collector Customs, Export Port Qasim, Karachi for payment of duty and taxes involved in this case. It has also been disclosed in the challan that it has been communicated by M/s. Paramount Spinning Mills Ltd that Mian Tanveer Ahmed (who was Chairman/CEO), Muhammad Abdullah, Mian Abdul Shakoor , and Mian Naseer Ahmed have been retired/resigned from the company as Directors but no reason for retirement or resignation was given save to Mian Abdul Shakoor for whom it is mentioned that he retired due to old age. It is noteworthy that all these persons are nominated accused persons in the interim challan. It is also mentioned by the Investigating Officer in challan that although these persons have retired/resigned, but such fact could not be entered and updated in the FBRs computerized system, and on the basis of the FBR computerized system, the F.I.R. was lodged. What is more, the Investigating Officer could not collect information regarding actual management of the company at the time of the alleged offence, while such information can easily be collected from SECP or FBR. Even, the Investigating Officer is not sure about the time and duration of the alleged offence, which is a necessary ingredient for framing the charge upon accused persons. In my view, the present case is a classic example of spoiling the prosecution case by the prosecution itself.
13. So far as the applicant Sheikh Riaz Ahmed is concerned, according to contents of final challan he had got pre- arrest bail and joined the investigation and in his statement, he has also shifted the entire burden upon the applicant Ali Afzal Sheikh.
14. From the above-stated facts, it is not difficult to ascertain that the prosecution is hand in gloves with some of the nominated accused and has fabricat ed some grounds for their acquittal. It was the reason that some of the accused have already been acquitted prematurely from the charge by the trial Court. I am of the view that the ground of resignation/retirement of the acquitted accused persons is purposely designed and the same has not been challenged, which itself suf ficient to create doubts regarding the entire prosecution case.
15. It is also evident from the above-stated facts that at the time of submission of the final challan, the taxes and duties have already been paid and it has also come on the record that during adjudication not only the entire amount has been recovered but fine and penalty were also recovered. Meaning thereby that no loss to public exchequer was caused in the instant case. The learned counsel for the applicant Shaikh Riaz in his arguments has taken the plea of double jeopardy on account of imposition of fine/penalty under Section 156 (141, of the Act during adjudication. I have gone through the 'Order-in-Original' passed in adjudication, from which it appears that such action was taken against M/s Paramount Spinning Mills Ltd, i.e. a juristic person and not any of the accused. In these circumstances, no question of double jeopardy or vexing twice arises, hence I found myself not in agreement with the learned counsel in this respect.
16. Another aspect of the case is impor tant which pertains to charge. I have noticed that the F.I.R. as well as interim and final challans are silent about the time and place of occurrence of offence. In the specific column, only it is mentioned that during working hours at Customs House. I am of the view that absence of particular details regarding the offence is fatal for the prosecution case, and the time or the duration in which the offence has taken place and the place or places of offence are the initial and important details, which are missing and due to such omission, the charge itself becomes base less. In this respect, I would like to reproduce Section 222 of the Code of Criminal Procedure, as under:
222. Particulars as to time Place and person . (1) The charge shall contain such partic ulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money , it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 : Provided that the time included between the first and last of such dates shall not exceed one year .
17. In the instant case, teeming number of GDs are involved and it is not clear that when those GDs were filed and if the span of filing these GDs were more than one year, the mode of framing of charge would be entirely different.
Besides, such error or omission in respect of time or duration as well as place or places of alleged offences, will certainly cause misconception in the minds of accused persons at the time of framing charge, which resultantly mislead them in respect of their defence, and such will have an occasion to failure of justice. I am of the view that this grave negligence at the time of lodging F.I.R. as well as filing challan, itself creates ambiguity and doubt regarding the prosecution case and at the end of the trial the same will result in acquittal of the applicants.
18. Nevertheless, both the applicants as well as the acquitted accused persons are Directors of Messrs Paramount Spinning Mills Ltd. The resignation/retirement of nearly all Directors including Chairman/CEO indicates something fishy. In the peculiar circumstances of the case, I am of the view that all the Directors of the company are responsible for any misdemeanor taken place within the company by the management. If any benefit is extended to some of the Directors by the trial Court, the same is required to be extended to remaining accused persons. I am also unable to swallow the plea taken by the present management of Messrs Paramount Spinning Mills Ltd. in its aforementioned letters that the applicant Ali Afzal Sheikh was a whole soul in the company and responsible for all the acts and deeds in respect of the alleged offence. I am surprised that the Investigating Officer did not try to collect concrete material regarding this aspect of the case but mentioned the same within the body of challan as gospel truth, which also creates doubt regarding the entire prosecution case. It is my considered opinion that for the reasons given in the foregoing Paras, the charge against the applicant will become baseless. I am of the view that there will be no possibility of conviction even after full-fledged trial on account of above-mentioned deficiencies in the investigation, as such both the above-mentioned applications have been allowed and the applicants have been acquitted through a short order dated 01-10-2019 and these are the reasons for the same.