Tariq Saleem Sheikh, J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioners seek quashing of FIR No.C/393/ 2021 dated 11.09.2021 registered at Police Station FIA, Faisalabad, for offences under sections 161, 420, 468, 471, 109 PPC, section 5(2) of the Prevention of Corruption Act, 1947, and sections 8 & 23 of the Foreign Excha nge Regulation Act, 1947 (the "Impugned FIR").
The factual matrix
2. The Federal Investigating Agency (hereinafter referred to as the "FIA" or the "Agency") received source information that the customs officials, including those of the Directorate of Intelligence & Investigation, posted at the Faisalabad Dry Port were engaged in various corrupt practices in collusion with the importers and clearing agents and causing huge loss to the national exchequer . The source particularly accused them of clearing consignments containing mis-declared and contraband items.
3. M/s Ali Zain Traders (Respondent No.11) had imported Consignment No. FCSI-HC-84 from Singapore which arrived at Karachi and was then transhipped to the Faisalabad Dry Port and cleared by the customs authorities on 30.8.2021. It was loaded on Container No.00LU9479653 (1x40') and two Mazda trucks bearing registration Nos.
FSD-124 and LEI-4204 and as soon as it egressed from the dry port it was intercepted by a squad of FIA.
Respondent No.5 who was heading that team asked the customs officials to take it back into their premises but they refused arguing that the law did not permit re-entry of goods after they had left the place. He reported the matter to his superiors who talked to the senior officers of the Customs Department and on their intervention the goods were re-admitted to the dry port and sealed jointly by the of ficers of both the agencies.
4. The next day, i.e. on 31.8.2021, the FIA registered Enquiry No.425/2021 and requested Respondent No.8 [Collector of Customs, Model Customs Collectorate (Appraisement), Faisalabad Dry Port] through a written application for joint re-examination of the consignment by FIA and the customs. Respondent No.8 acceded to that request whereupon the goods were partially re-examined on 2.9.2021 and 3.9.2021 which revealed mis-declaration and import of contraband items. In the meanwhile, Respondent No.12 (the clearing agent of Respondent No.11) filed W rit Petition No. 52618/2021 in which this Court restrained further re-examination.
5. During the inquiry M/s Ali Zain Traders (Respondent No.11) did not produce any document regarding legal transfer of money abroad for purchase of the goods in question. The FIA estimates that the national exchequer has suffered a loss in the sum of Rs.12 million approximately in this transaction. On the conclusion of the said inquiry , it lodged the Impugned FIR No.C/393/ 2021 dated 11.09.2021 against the Petitioners (who are customs officials) and Respondents No.1 1 & 12.
The Petitioners' case
6. According to the Petitioners, M/s Ali Zain Traders (Respondent No.11) imported Consignment No. FCSI-HC-84 which was received at the Faisalabad Dry Port. On 13.8.2021 their Clearing Agent (Respondent No.12) made an application to the Additional Collector (Customs) for its pre-declaration examination in terms of the first proviso of section 79(1) of the Customs Act, 1969 (the "Customs Act"), in order to ascertain the precise quantity and description of the goods as, according to them, it consisted of old and used machinery . The request was allowed.
After fulfilling legal formalities the consignment was opened and the customs officials drew the inventory which was countersigned by the staff of Respondent No.8 who was duly authorized by the competent authority for that purpose. On 30.8.2021 Respondent No.12 filed the Goods Declaration on behalf of Respondent No.11 that was based on the transactional value in terms of section 25 of the Customs Act and deposited the applicable duties and taxes. The officers concerned examined the consignment and certified that it was in consonance with the said Goods Declaration. The matter was then placed before the Appraiser who opined that the assessed value was not congruous with the evidential data of similar and identical goods so he revised it upwards. Respondent No.11 deposited the differential amount of duties and taxes whereafter the goods were allowed out of charge and the gate pass was issued. On 30.8.2021 at 7:12 p.m. three vehicles of Respondent No.11 carrying the goods left the dry port. A team of FIA headed by Respondent No.5 was lying in wait who intercepted took the vehicles, took them into custody and drove them to an unknown place. After about six hours Respondent No.5 brought the container back and asked for it's readmission to the dry port which was denied as it was legally impermissible. However , on the intervention of the senior officials of the Customs Department the container was subsequently readmitted by making a manual entry on the gate pass issued earlier . The Mazda trucks were brought back to the dry port after 17 hours.
7. The Petitioners admit that on 31.8.2021 Respondent No.8 allowed re-examination of the consignment by a joint team of the FIA and the customs and consequent thereupon the goods were partially re-examined.
8. The Petitioners view the FIA's action as without jurisdiction. They also question the competence of Respondent No.8 to order re-examination of the consignment and the legality of the consequent report of the joint team.
Notice under Order XXVII-A CPC
9. Considering that this case involves important questions requiring interpretation of the Constitution and statutory law, this Court issued notice to the Attorney General for Pakistan in terms of Order XXVII-A CPC.
The submissions
10. The counsel for the Petitioners, Mr. Mansoor Usman Awan, Advocate, contend s that the Federal Investigation Agency Act, 1974 (the "FIA Act"), and the Customs Act are two special statutes which have their own sway .
Resultantly , subject to the hierarchy given in section 3 and other provisions of the Customs Act, the officers of the customs have exclusive jurisdiction to determine and collect the amount of duties and taxes leviable on any goods or class of imported and exported goods, and to prevent smuggling. Therefore, it is their mandate to conduct raids and searches, seize goods and prosecute the offenders and no other agency can interfere in these matters.
According to Mr. Awan, the FIA's raid on Consignment No.FCSI-HC-84 was illegal and unjustified. Even if it was assumed that it contained mis-declared and contraband items (as alleged in the Impugned FIR), only an officer of the customs was competent to determine that fact under section 80 of the Customs Act. He also assails the order of Respondent No.8 regarding constitution of a joint team of the FIA and the customs officials for re-examination of the goods and all the proceedings held by it. Mr. Awan further contends that section 27(1) of the Customs Act stipulates that no investigation or inquiry can be initiated by any government agency against any officer of the customs in respect of anything done in his official capacity without the prior approval of the Federal Board of Revenue (the "Board"). Inasmuch as the FIA did not seek the requisite approval, the Impugned FIR is void abinitio.
11. Mr. Asad Ali Bajwa, Deputy Attorney General for Pakistan, contends that the FIA has vast powers under section 5 of the FIA Act and it was competent to check Consignment No.FCSI-HC-84 and lodge the Impugned FIR when it found that it contained contraband goods . According to him, the FIA has not overstepped its jurisdiction and the suggestion to the contrary is misconceived. As regards the approval of the Board contemplated by section 217(1) of the Customs Act, Mr. Bajwa submits that it is a lapse on the part of FIA but it would not vitiate the Impugned FIR because private persons are also nominated as accused therein.
12. Ch. Muhammad Zafar Iqbal, Advocate, who appeared on behalf of Respondents No.8 & 9 (Collector of Customs and the Federal Board of Revenue), has opposed the Deputy Attorney General and supported this petition. He submits that the FIA must perform its functions in accordance with the FIA Act. It cannot be permitted to assume the role of a "super police". He maintains that the Customs Act provides a comprehensive mechanism for checking any mis-declaration of goods, tax evasion and smuggling which is enforced through a chain of customs authorities, the Directorate General of Intelligence & Investigation, and the Directorate General of Post-Clearance Audit. The FIA cannot be permitted to encroach upon their domain as it would cause imbalance and adversely affect the collection of revenue. Mr. Iqbal further submits that the Petitioners and their other colleagues in the Customs Department cleared the aforementioned consignment in due course of their duty and in good faith so their acts are protected under section 217 of the Customs Act. Even otherwise, the Impugned FIR is liable to be quashed right away as it has been lodged without the Board' s sanction.
13. Respondents No.1 1 & 12 are proforma . They have not put in appearance.
The amicus curiae
14. This Court appointed Khawaja Haris Ahmad, Advocate Supreme Court, as amicus curiae in this case. He contends that the FIA was competent to check Consignment No.FCSI-HC-84 under section 5 of the FIA Act as it had left the dry port and was on the public road at the relevant time. He maintains that it was not necessary for the FIA to request Respondent No.8 for re-examination of the goods by a joint team and if he has allowed it no exception can be taken to its proceedings because it advances the ends of justice. As regards the immunity under section 217 of the Customs Act, the learn ed amicus curiae submits that it is availab le only to the acts done in good faith and the Petitioners would have to show that they did not play foul. He agrees with Mr. Iqbal that the Petitioners cannot be interrogated or investigated without the prior approval of the Board which the FIA has not even applied for to-date. However , Mr. Haris states that the impugned FIR cannot be quashed on that ground because private persons (the constituent partners of Resp ondents No.11 & 12) have also been nominated. He points out that the law does not allow partial quashing of the FIRs.
Opinion
15. In order to appreciate the contentions of the learned counsel it is necessar y to examine the scope of the Customs Act and the FIA Act.
The Customs Act
16. At the time of the partition of India three statutes relating to customs were in force, namely , the Sea Customs Act, 1878 (VIII of 1878), the Land Customs Act, 1924 (XIX of 1924), and the Air Ships Act, 1911 (XVII of 1911).
Considering the fact that the law was scattered and inconsistent and inadequate to effectively check smuggling, the Parliament enacted the Customs Act, 1969, to revise and consolidate the customs law - the levy and collection of customs duties, fee and service charges and to provide for other allied matters.
17. Chapter II of the Act provides for the appointment of officers of customs and establishment of various directorates which inter alia include the Directorate General of Intelligence & Investigation and the Directorate General of Post Clearance Audit. The essential duty of the customs officers is to prevent smuggling and to ensure that every amount of customs duty is correctly levied and realized. Some of their legal powers under the Act are enumerated below:1 2 3
(i) To search and arrest any person on reasonable ground and belief with or without warrant (see sections 158, 161, 162, 163 and 167);
(ii) To screen or X-Ray bodies of suspected persons for detecting secreted goods (see section 160);
(iii) To stop and search conveyances (see section 164);
(iv) To compel aircraft to land for examination and search of goods (see section 164);
(v) To break open the lock of any door , fixture or package for making search (see section 164);
(vi) To summon persons to give evidence and produce documents or things and to examine persons (see sections 165 and 166);
(vii) To seize or detain things liable to confiscation; or certain publications (see sections 168 & 172); and
(viii) To impose penalties and to confiscate goods (see sections 179, 156 and 157).
18. Section 6(1) of the Customs Act empowers the Board to entrust, either conditionally or unconditionally , any functions of any officer of customs under the Act to any other officer of the Federal Government, the Provincial Government, State Bank of Pakistan or the Scheduled Banks. Section 6(2), howev er, stipulates that such persons shall not interfere in the functioning of the customs officers in the places notified under section 9 - the customs- ports, customs-airports etc. The FIA Act
19. The Parliament has established the FIA through the Federal Investigation Agency Act, 1974 (the "FIA Act"), for inquiry and investigation of certain offences committed in connection with matters concerning the Federal Government. Section 3 of the Act read with the Schedule thereto lists those offences and adds that it would include an attempt or conspiracy to commit any such offence and the abetment thereof. Section 4(2) stipulates that administration of the FIA shall vest in the Director General who shall have the same powers as the Inspector General of Police under the Police Act, 1861. Section 5 of the FIA Act is very significant as it describes the powers of the Agency . The relevant provisions thereof are reproduced below for ready reference:
5. Powers of the members of the Agency .- (1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property , and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.
(2) Subject to rules, if a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in-c harge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in- charge of a police station discharging his functions as such within the limits of his station.
(3) Without prejudice to the generality of the provisions of the sub- section (1) and sub-section (2), any member of the Agency not below the rank of a Sub-Inspector authorized by the Director-General in this behalf may arrest without warrant any person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the of fences referred to in sub-section (1) of section 3.
(4) For the purpose of the exercise by the members of the Agency of the powers of an officer-in-charge of a police station, "Police Station" includes any place declared, generally or specially , by the Federal Government to be a police station within the meaning of the Code.
(5) ...
(6) ...
20. It may be appreciated that section 5(1) of the FIA Act invests the members of the Agency with all the powers that the provincial police have in relation to search, arrest of person and seizure of property and investigation of offences which may, subject to any order of the Federal Government, be exercised throughout the country . Section 5(2) empowers a member of the Agency , who is not below the rank of a Sub-Inspector to exercise any of the powers of an officer in-charge of a police station for the purposes of any inquiry or investigation under the Act. In this view of the matter , the FIA is a police force for all legal and practical purposes.
21. The legislature has used two terms in section 5 of the FIA Act, i.e. "inquiry" and "investigation", but has not defined them. These terms are ordinarily taken as synonymous but in law they are distinct. The Black' s Law Dictionary defines "inquiry" as "(a) a question someone asks to elicit information; (b) the act or process of posing questions to elicit information." On the other hand, it describes "investigation" as "the activity of trying to find out the truth about something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into certain facts, as by a legislative committee, or a systematic examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method." The Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code" or "Cr .P.C."), defines the two terms as follows in section 4(1):
(k) "Inquiry" .- "Inquiry" includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.
(l) "Investigation" .- "Investigation" includes all the procee dings under this Code for the collection of evidence conducted by a police- officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
22. The diction of section 5(1) of the FIA Act and the context in which the terms "inquiry" and "investigation" appear in it indicates that the legislature also intended to give them different meaning. In Adamjee Insurance Company Ltd. v. Assistant Director , Economic Enquiry Wing (1989 PCr.LJ 1921 ) a Divisional Bench of the Sindh High Court stated: "We are inclined to hold that the fact that the respondent did not record the FIR upon the receipt of written complaint containing allegation of commission of a cognizable offence, does not render the initiation of the inquiry illegal. We are in respectful agreement with the view expressed in the above-cited Privy Council case namely , that an investigation may commence even without recording FIR. We may also point out that subsection (1) of section 5 refers to two terms, i.e. 'inquiry' or 'investigation'. The use of these two terms in the above sub-section indicates that they connote two dif ferent meanings. In our view inquiry can be termed as the first step towards investigation."
23. In exercise of the powers conferred by section 9(1) of the FIA Act the Fede ral Government has framed the Federal Investigation Agency (Inquiries and Investigations) Rules, 2002 (the "FIA Rules), which the Agency has to follow in the performance of its functions. Rule 4 prohibits action on anonymous and pseudonymous complaints and empowers the Deputy Director or an officer above that rank to ascertain the identity of the complainant or informer and verify genuineness of the complaint or information when it is against a public servant. Rule 5(1) enjoins that the FIA shall obtain prior permission of the authority stipulated in the table given in that sub-rule to initiate inquiry against an accused public servant. Rule 5(2) states that unless the public servant is caught as a result of a trap arranged by the FIA under the supervision of a Magistrate of the First Class, a criminal case shall not be registered against him without the prior permission of the authority mentioned in that sub-rule. In Universal Cables Industries Limited v. Federation of Pakistan and 3 others (PLD 2020 Sindh 601) a Divisional Bench of the Sindh High Court held that the FIA cannot undertake fishing/roving inquiry or investigation against a public servant. For the sake of completeness it may be added that Rule 10 enjoins that after the completion of investigation if the case is found fit for prosecution, the Agency shall submit it to the Federal Government for sanction if required under section 197 Cr .P.C.
24. It is important to point out that section 156 of the Customs Act lists the offences punishable under the Act and prescribes the punishment therefor . Section 3 of the FIA Act read with Item No.10 of the Schedule thereto expressly empowers the FIA to inquire into and investigate those offences. Further , SRO 913(I)/86 dated 5.10.1986 issued under section 6 of the Customs Act confer s powers of seizure and arrest contemplated by section 161(2) thereof on all police officials. The FIA being a police force in terms of section 5 of the FIA Act is also competent to exercise those powers. In Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881 ), on a secret information, the FIA officials stopped a passenger at the Lahore Airport Immigration Check Post when he had booked his luggage and obtained boarding card for a flight to Dubai. His lugga ge was off loaded and searched and PKR 50,00,000/- were recovered. Consequent thereupon a case under section 156(l)(8)(81)(82) of the Customs Act, 1969, read with section 5 of the Prevention of Corruption Act, 1947, was lodged. It was argued that4 5 6 7 8 the FIA was not competent to register the FIR but the Hon'ble Supreme Court of Pakistan disagreed. Besides referring to SRO 913(I)/86 dated 5.10.1986, supra, it held: "[T]he Federal Investigation Agency Act, 1974, has interacted with a variety of other laws, including the Customs Act, 1969. Thus, broad-based powers have been conferred by section 3 of the Act on the Federal Investigation Agency for inquiry into an investigation of large array of offences, specified in the Schedule to the enactment. Such, inter alia, include offences under the Prevention of Corruption Act, 1947 and under section 156 of the Customs Act, 1969, each the subject-matter of the current FIR. Besides, under section 5 of the same Act, members of the Agency throughout Pakistan, for the purposes of inquiry and investigation under the Act have been accorded such powers, including powers relating to search, arrest of any person and seizure of property and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to investigation of offences under the Code of Criminal Procedure or any other law for the time being in force."
25. In Khalid Mehmood' s case, supra, the apex Court also nixed the contention that the FIA being an organization neither qualifies as an "appropriate officer" under section 2(b) nor as the "officer of customs" under section 2(o) of the Customs Act so it' s officers were not competent to exercise any power under that Act. It held: "[A]s to the specific powers conferred by the FIA Act per sections 3 and 5 thereof, such do not appear to be in any manner restricted by the Customs Act, and the correct position seems to be that the FIA enactment being later in time, the new dispensation introduced by it is a graft on the Customs Act but only so far as it goes. Thus, even if an officer of the FIA does not qualify as an 'appropriate officer' for seizure of goods under section 168 of the Customs Act, he manifestly qualifies for so doing under section 5(I) etc. of the FIA Act."
26. Both the Customs Act and the FIA Act are special laws. It is the duty of the court to interpret them harmoniously and prevent a conflict. In Syed Mushahid Shah and others v. Federal Investigation Agency and others (2017 SCMR 1218 ) the Hon'ble Supreme Court held that in the event of conflict between two special laws the later in time will generally prevail over the other . However , this presumption is not automatic and while making any determination the court should also take other factors into consideration, including the object, purpose and policy of both the enactments and the legislature' s intention. In Federal Government Employees Housing Foundation and others v. Malik Ghulam Mustafa and others (2021 SCMR 201) it was held that the doctrine of implied repeal should not be invoked mechanically .
Legality of the FIA 's raid in the present case
27. The Petitioners challenge the FIA's jurisdiction to intercept Consignment No. FCSI-HC-84 on a number of grounds. I agree with their contention that the customs authorities, subject to section 3 and other provisions of the Customs Act, have exclusive power to determine and collect the duties and taxes leviable on any goods or class of goods, imported and exported. The said Act provides a complete mechanism to assess the value of goods and check untrue statements. The FIA cannot examine the legality of the assessm ents approved by the customs hierarchy unless, as we shall see in the later part of this judgment, the Board has sanctioned a formal inquiry or investigation under section 217(1) of the Customs Act. It follows that the FIA cannot search or seize any property or arrest a person at will for filing an untrue statement. If no such inquiry is pending , in exceptional circumstances it may invoke section 185-A of the Customs Act and make a complaint to the Special Judge. In the present case, the FIA's raid was justified on the ground that there was information that the offence of smuggling (within the meaning of section 2(s) of the Customs Act) was being committed. The FIA has concurrent jurisdiction with the customs authorities to prevent it. Khalid Mehmood' s case cited above fully supports this view .
28. The Petitioners also rely upon sections 6(2) and 80 of the Customs Act for their challenge to the FIA's action.
Section 6(2) bars the other authorities from interfering in the functions of an officer of customs in the places notified under section 9. Admittedly , the FIA did not conduct the raid within the precincts of the dry port so the said provision is inapplicable.
29. Section 80 of the Customs Act casts a duty on the officer of customs to check the goods declaration when it is presented to him and satisfy himself regarding the correctness of the particulars of import, including declaration, assessment, and in case of the Customs Computerized System, payment of duty, taxes and other charges thereon.
It also empowers such officer to re-examine the goods and take other steps for the correct levy and collection of9 duties and taxes. The language and intent of section 80 clearly shows that it applies before the goods are cleared.
It cannot be invoked in the instant case as the goods had left the dry port when the FIA took the impugned action.
30. The Petitioners are very critical of the order of Respondent No.8 regarding joint re-examination of the goods and the proceedings held in pursuance thereof. I agree with Khawaja Haris Ahmed that it was not necessary for the FIA to request Respondent No.8 because it had a number of alternatives. To my mind, Respondent No.8 did not commit any wrong by acceding to that request as he merely helped another law enforcement agency which is even otherwise the duty of every law abiding citizen. The Petitioners have failed to persuade me that they have been prejudiced by this course.
31. The Petitioners have made some insinuations against Respondent No.5 and his contingent by pleading that Consignment No. FCSI-HC-84 remained in their custody for a long time at an unknown place. Inasmuch as they have not placed on record any evidence in this regard, I must not make any comments. They may raise this issue at an appropriate stage.
32. The scope of section 217(1) of the Customs Act needs deliberation. Now I turn to it.
Scope of section 217(1) of the Customs Act
33. Section 217(1) grants various prote ctions to the Federal Government and the public servants performing functions under the Customs Act. It reads as under:
217. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceeding shall lie against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules and notwithstanding anything in any other law for the time being in force no investigation or enquiry shall be undertaken or initiated by any governmental agency against any officer or official for anything done in his official capacity under this Act, rules, instructions or directions made or issued thereunder without the prior approval of the Board.
34. At the very outset, it is pertinent to point out that Article 5(2) of the Constitution unequivocally states that it is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan to obey the Constitution and the law - which, as observed by Hamoodur Rehman J. in Government of West Pakistan and another v. Begum Agha Abdul-Karim Shorish Kashmiri (PLD 1969 SC 14), includes all that is treated as law in this country, including the judicial principles laid down by the superior courts from time to time. In President Balochistan High Court Bar Association and others v. Federation of Pakistan and others (2012 SCMR 1784) the Hon'ble Supreme Court of Pakistan held that loyalty to the State and obedience to the Constitution and the law is mandatory for every citizen. In Muhammad Yasin v. Secretary, Government of the Punjab, and others (2007 SCMR 1769) it was held that "public functionaries are duty bound to act within the framework of the Constitution and the law ... It is the command of the Constitution by virtue of Article 5(2) read with Article 4 that everybody whosoever must act in obedience of the Constitution to perform/discharge their duties in accordance with law."
35. Rule of law does not admit the notion of absolute immunity from accountabilit y. In Ch. Zahur Ilahi v. Zulfikar Ali Bhutto and 2 others (PLD 1975 SC 383) the Hon'ble Supreme Court held that the immunity provisions must be construed strictly because "immunity is in the nature of an exception to the gene ral rule that no one is above the law." It is well settled that nobody howsoever high can claim immunity from prosecution for a criminal act. In Brig.
(Retd) Imtiaz Ahmad v. Government of Pakistan and 2 others (1994 SCMR 2142 ) the Hon'ble Supreme Court ruled that is the responsibility of the public functionaries to explain and justify their acts as it is a bulwark against oppression and corruption. There is no immunity when the matter concerns commission of a crime or fraud.
Relevant excerpt is reproduced below: "... we find that the trend of judicial authority as noticed in Mohtarma Benazir Bhutto case is against any such immunity from accountability as is being claimed for the petitioner , particularly when the matter concerns the commission of a crime or fraud. It was held in Mohtarma Benazir Bhutto case that the capacity of the petitioner as Director , Intelligence Bureau, was that of head of the department. We can find nothing in those observations, and no provision of law was cited, to justify the equivocation of the Director with the Prime Minister or a Minister . Also, we do not know of any law nor was any cited conferring immunity against criminal prosecution upon a public10 servant like the petitioner . We discounten ance the contention that such immunity exists. To hold otherwise would amount to this that the Director , Intelligence Bureau, is not only above the law but law unto himself. He was the holder of a public office and the questio n that the criminal courts will be called upon to determine, if after due investigation, the petitioner is challaned to stand his trial, will be whether he had committed criminal breach of trust in his capacity of Director ."
The apex Court further said: "To the very unusual assertion that the petitioner is not an ordinary man, we shall be content to recall, for the benefit of all concerned, the following observations of Wilmot, C.J. in that historic case Wilkes v. Wood (1769) 19 St. Tr. 1406 : 'The law makes no difference between great and petty officers; thank God, they are all amenable to justice'. Then, the question being of the misappropriation of public money and misuse of public power , we do not think that any question of violation of Article 13 of the Constitution can arise at this stage."
36. In Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823), while considering the scope of the immunity afforded to the Prime Minister under the Constitution, the Hon'ble Supreme Court observed that "neither the Constitut ion nor any law can possibly authorize him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts. Even a Prime Minister is under clause (2) of Article 5 of the Constitution bound to obey the Constitution and the law as that is the basic obligation of every citizen." In Abdul Rehman Malik v. Synthia D. Ritchie and others (2020 SCMR 2037 ) the apex Court held that the "immunity provided to the President, a Governor , the Prime Minister , a Federal Minister , a Minister of State, a Chief Minister and a Provincial Minister is confined to the exercise of powers and performance of functions of their respect ive offices and for the acts done or purported to be done in exercise of powers and performance of their official functions. The President or the Governor can only escape prosecution on a criminal charge during incumbency in the office. Since the law does not authorize holder of any office, howsoever high to commit a crime or do anything inconsistent with law, even the limited functio nal immunity cannot be pressed into service to hold the process of law in abeyance."
37. The following observations made by this Court in Khawaja Muhammad Sharif v. Federation of Pakistan and 18 others ( PLD 1988 Lahore 725 ) while interpreting Article 248 of the Constitution are also instructive: "The immunity granted under Article 248 cannot cover acts which are mala fide, initiated in bad faith, or prompted by bad motive. If the act purporting to be done in exercise of powers or performanc e of functions is so farfetched or unrelated to the issue at hand, the immunity cannot apply . The act done or purporting to be done must bear such close and intimate relation to the duty or the function, so that the person concerned can lay a reasonable claim, but not a pretended claim that he did it in the exercise of powers or performance of functions given to him by the Constitution. The personal immunity from legal action does not place the acts of the President or the Governor , done or purporting to be done in pursuance of their power and duties under the Constitution, beyond the scrutiny of the courts. See G.D. Karkare v. T.L. Shevde (AIR 1952 Nag. 330); approved in K.A. Mathialagan v. The Governor (AIR 1973 Mad. 198 at 219). As pointed out by K. Veeraswamy , C.J., in the latter case, what the Constitution establishes is the supremacy of law and not of man, however highly placed they may be. In Gnanamani v. Governor of Andhra (AIR 1954 Andh. Pra. 9), the Court held that though the immunity provided by clause (1) of Article 361 of the Indian Constitution gave full immunity , but only so long as the person was not guilty of dishonesty or bad faith."
38. Section 217(1) of the Customs Act has to be construed in the light of the above principles. It has two parts. The first contemplates immunity for the acts done or intended to be done in good faith in pursuance of the Act or the Rules made thereunder . The second part, on the other hand, regulates the procedure. The Customs Act does not define the expression "good faith" so we may have recourse to other sources. According to the Black' s Law Dictionary , it means "a state of mind consisting honesty in belief or purpose; faithfulness to one's duty or obligation; observance of reasonable commercial standards of fair dealing in a given trade or business; or absence of intent to defraud or to seek unconscionable advantage - also termed bona fides ." The Online Legal Dictionary by Farlex says that it is "an abstract and comprehen sive term that encompasses a sincere belief or motive without any malice or the desire to defraud others. It derives from the translation of the Latin term bona fide, and courts use the two11 terms interchangeably ." In order to further understand the meaning of the expression "good faith" we may refer to section 52 PPC which says that "nothing is said to be done or believed in 'good faith' which is done or believed without care and attention." In Brijendra Singh v. State of U.P. and others (AIR 1981 SC 636) the Supreme Court of India held that "the expression [good faith] has several shades of meaning. In the popular sense, the phrase 'in good faith' simply means 'honestly , without fraud, collusion, or deceit; really , actua lly, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme'. (See Words & Phrases, Permanent Edition, Vol. 18A, page 91). Although the meaning of 'good faith' may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting 'good faith' is conditioned by the context and object of the statute in which this term is employed. It is a cardin al canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour , light and content from the context."
39. The public functionaries are obligate d to discharge their duties honestly . The protection of the first part of section 217(1) of the Customs Act is not available where fraud, colourable exercise of power or bad faith is demonstrated. The phrase "in pursuance of this Act or the Rules" is also significan t. Inasmuch as it is well settled that the legislature cannot permit any wrongdoing, a dishonest or fraudulent act cannot be covered by that expression.
40. In order to qualify for the protection under section 217(1) of the Customs Act, in addition to good faith, the public servant must also establish that he was acting within the scope of the authority conferred upon him by the Act, rules or departmental instructions. Here, one may usefully refer to the jurisprudence developed under section 197 Cr.P.C. which stipulates that no court shall take cognizance of the offence committed by the judges and certain public servants while acting or purporting to act in discharge of their official duties except with the previous sanction of the Government. In Phanindra Chandra Neogy v. The King (PLD 1948 PC 273) the Privy Council approvingly cited the following excerpt from Gill v. The King, [(1948) L.R. 75 1.A. 41], which explained the expression "official duty": "A public servant can only be said to act or purport to act in the discharge of his official duty, if the act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act : nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be, whether the public servant, if challen ged, can reasonably claim that what he does, he does in virtue of his of fice."
41. In Syed Ahmad v . The State [PLD 1958 SC (Pak) 27] the Hon'ble Supreme Court of Pakistan held: "The rule that for the application of section 197 Cr.P.C., a valid test might be that the act alleged against the public servant should lie within the scope of his official duty, and that he should be able to claim reasonably that what he did, he did in virtue of his office, was laid down by the Privy Council in Gill's case (75 1.A. 41). This principle has been cited with approval in a number of important cases decided subseque ntly. Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted, for the purpose of the protection afforded by section 197 Cr.P.C. in a sense wider than that covered by the precise acts which the official is authorized by the law or other instrument governing the matter to perform. The act must therefore be one connected with the performance of those duties, and in order that the question should at all arise whether this act should be allowed to be made the subject of a criminal charge, it must be in excess of the exact duties in question. Yet, it must be also an act reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, reasonable person might assume that he could or might act in that way. That in our view is the sense in which the statement of the Privy Council in Gill's case, viz., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood."
42. Similarly , in Muhammad Abbas v. The State (PLD 1981 SC 642) the apex Court held that the offences like taking of bribe, forgery , misappropriation, breach of trust committed by a public servant while holding public office do not fall within the purview of his "acting or purporting to act" as public servant. Hence, protection of section 197 Cr.P.C. is not available.
43. In a nub, the scope of immunity under section 217(1) of the Customs Act is limited. It is conditional upon the existence of "good faith" and to the "acts done in official capacity" which are questions of fact that cannot be decided without recording evidence. In Iftikhar Hussain and others v. Government of Pakistan and others (2001 PCr.LJ 146) a Divisional Bench of this Court held that this plea is in the nature of defence which can be taken into consideration at the prope r stage. Consequently , in The Director General (Intelligence and Investigation Inland Revenue), Islamabad and 2 others v. The Addition al Sessions Judge-IV , West Islamabad, and 4 others ( 2021 PTD 1585 ) the Islamabad High Court held: "And as every citizen has a right to due process and fair trial, when a claim is made by a citizen that a public official is involved in an offense causing legal injury to such citizen, both, the citizen and the public official have a right to due process and fair trial and to have their rights and liabilities determined in acco rdance with law. Consequently , no public official can claim protection against investigation or prosecution. In view of Article 10A [of the Constitution], it is only the procedure to be followed in conducting investigation and prosecution of public officials that can be regulated by statutory provisions."
44. The second part of section 217(1) of the Customs Act is regulatory . It ordains that prior approval of the Board is required for initiation of inquiry or investigation by any governmental agency against an officer or official for anything which he has done in official capacity. This would obviously include the FIA but the above provision has to be harnessed with the FIA Rules of 2002 which envisage "inquiry" and "investigation" as two separate regimes.
Hence, in my opinion, the FIA must seek sanction of the Board at two stages - initially to undertake the inquiry and then to register criminal case against the officers of the customs. In both the instances the request would be forwarded through the authority specified in Rules 5(1) and 5(2) respectively .
45. It must be noted that both section 217(1) of the Customs Act and Rule 5 of the FIA Rules use the word "shall".
Ordinarily the provisions containing this word are considered mandatory but in Province of the Punjab through Conservator of Forest, Faisalabad, and others (2021 SCMR 328) the Hon'ble Supreme Court of Pakistan held that "the ultimate test is the intent of the legislature and not the language in which the intent is clothed. The object and purpose of enacting the provision provide a strong and clear indicator for ascertaining such intent of the legislature. The intention of the legislature must govern and this is to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other . This exercise entails careful examination of the scheme of the Act in order to discover the real purpose and object of the Act." In Province of the Punjab v. Murree Brewery Company Limited and another (2021 SCMR 305) the apex Court approvingly cited following principles laid down on this issue by the Indian Supreme Court in May George v . Special T ehsildar and others : "a) While determining whether a provision is mandatory or directory , somewhat on similar lines as afore-noticed, the court has to examine the context in which the provision is used and the purpose it seeks to achieve; b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons af fected by the application of such provision; c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things; d) As a factor to determine legislative intent, the court may also consider , inter alia, the nature and design of the statute and then which would flow from construing it, one way or the other; e) It is also permissible to examine the impact of other provisions in the same statute and the consequence of non- compliance of such provisions; f) Phraseology of the provisions is not by itself a determinative factor . The use of the words 'shall' or 'may', respectively would ordinarily indicate imperative or directory character , but not always; g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not;12 h) The Court has to give due weightage to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise."
46. A study of section 217(1) of the Customs Act and Rule 5 of the FIA Rules shows that the purpose of these provisions is to provide the customs officers a congenial environment for discharge of duties and protect them from harassment and undue litigation. Therefore, I hold that they are mandatory .
47. So far as the present case is concerned, I have already held that the FIA is not competent to question the assessment of the value of the goods imported by Respondent No.11. However , there is allegation of smuggling as well. In the circumstances, the proper course for the FIA was to register the complaint under Rule 3 of the FIA Rules - which it did - and invoke section 5(5) of the FIA Act to preserve the case property . Immediately thereafter it should have applied to the Board for permission to initiate inquiry against the Petitioners and carried out all subsequent proceedings in accordance with the law discussed above. Inasmuch as Respondents No. 11 & 12 were private persons, there was no bar in proceeding against them in the meanwhile.
48. I might have quashed the Impugned FIR and directed the FIA to start denovo from the stage of registration of Enquiry No. 425/2021. However , this cannot be done because Respondents No. 11 & 12 are also nominated as accused and it is valid qua them. The learned amicus curiae, Khawaja Haris Ahme d, Advocate, has rightly pointed out that FIR cannot be partially quashed. In Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 SC 401) the Hon'ble Supreme Court held that partial quashing of FIR is a legal impossibility .
Disposition
49. In view of the above, this petition is decided in the following terms: i) The FIA shall immediately apply to the Board for permission to hold inquiry against the Petitioners and other customs officials, if any. The said request shall be made through the competent authority under Rule 5(1) of the FIA Rules of 2002 and the Board shall decide it through a speaking order within thirty (30) days. ii) In case the Board accords approval, the FIA shall hold denovo inquiry against the Petitioners and other customs officials, if any , and af ford them full opportunity to defend themselves. iii) The FIA would require separate (second) approval from the Board in terms of Rule 5(2) of the FIA Rules of 2002 if it concludes that it needs to prosecute the Petitioners. iv) If the Board declines approval for inqui ry or prosecution, the Petitioners may make an application before the trial court for acquittal. v) The case of Respondents No.11 & 12 is distinguishable from the Petitioners so the FIA can proceed against them independently . Nevertheless, they shall also be entitled to move the trial court for acquittal if no incriminating material is collected qua them. vi) The Petitioners' prayer for quashing of the Impugned FIR is declined. The issue adumbrated in paragraph 31, above, is left untouched. The Petitioners and/or Respondents No.11 & 12 may raise it before the trial court at an appropriate stage if so advised.
50. Before parting with this judgment I would like to acknowledge and appreciate the able and valuable assistance rendered by the amicus curiae , Khawaja Haris Ahmad, Advocate. {{FOOTNOTE}} Statement of Objects and Reasons of the Customs Bill published in the Gazette of Pakistan, Extraordinary , Rawalpindi, on the 20th June, 1968. Preamble of the Customs Act, 1969. The words "fee and charges" were inserted by the Finance Act, 2007. Najib A. Choudhry , Customs Law of Pakistan, 31st Edition (2020), p. 1 18 Black' s Law Dictionary , 11th Edition, p. 946. ibid, p. 989. Emperor v . Khawaja Nazir Ahmad (AIR 1945 PC 18). PLJ 2002 Fed. St. 9211 2 3 4 5 6 7 This view was followed in S.M. Ali Zaman Gardezi and another v. Federation of Pakistan and others (2021 PTD 1788 ). Khalid Mehmood v . Collector of Customs, Customs House, Lahore ( 1999 SCMR 1881 ). Mohtarma Benazir Bhutto v . The President of Pakistan (PLD 1992 SC 492). Black' s Law Dictionary , 11th Edition, p. 836 (2010) 13 SCC 98