1. The applicant Abdul Qadir is facing trial under section 156(1)(8), Customs Act, 1969 (hereinafter referred to as the Act) in the Court of Special Judge (Customs and Taxation), Karachi. The case against him is that on 30-9-1984, on his arrival from Singapore, by flight No. TG-507 of the Thai Air Lines, his baggage was subjected to usual check up by the custom authorities and 4 V.C.Ps. Were recovered from his baggage. As V.C.Ps. Were banned goods, a case was registered against the applicant by filing F.I.R. And after completion of the necessary investigation he was challaned in the aforesaid Court.
2. Subsequent to framing of formal charge against the accused an application was moved on his behalf praying for his acquittal 'under section 265-K, Cr.P.C. However, his application was dismissed vide order of the trial Court, dated 30-1-1985 Dissatisfied with the said order the applicant has filed the present application under section 561-A, Cr.P.C. Seeking quashment of the criminal Proceeding pending against him in the Court of Special Judge (Customs and Taxation), Karachi.
3. After hearing the arguments addressed at the bar, the quashment application was dismissed by short order, dated 4-3-1986 for reasons to be recorded separately. Following are reasons in support of the short order: It was contended by the learned counsel for the applicant that the V.C.Ps. Recovered from the applicant could not be regarded as smuggled goods, as they are not covered by the definition of "smuggle" under section 2(s) of the Act. Consequently, he argued, the prosecution of the applicant on account of his possession of the said goods was illegal and, therefore, pendency of the criminal case sought to be quashed by this application amounts to abuse of process of law.
4. On the other hand the argument of the learned State Counsel was that V.C.Ps. Are obviously included in "Electrical domestic appliances" which are declared as banned items in the notification issued by the Federal Government and as such prosecution of the applicant in respect of the said goods is quite in order and there is no case for quashment.
5. "(S) 'smuggle' means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon:-- (a)goldbullion, silver bullion stones, currency manufactures of gold or silver or precious stones or any other goods notified by the (Federal Government) in the official Gazette in each case exceeding one thousand rupees in value; (b)any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly,"
6. For the purpose of this case, sub-clause (a) of clause (S) of section 2 hereinabove is relevant. It clearly shows that the goods specified in the said sub-clause or declared by the Federal Government in the notification issued thereunder will be deemed to have 'been smuggled if their value exceeds rupees one thousand and they are brought into or taken out of Pakistan. It would be noticed that V.C.Ps as such do not find mention either in the above sub-clause (a) or in the notification issued by the Federal Government under the said sub-clause. However, both the learned counsel referred to the notification --which was admittedly issued by the Federal Government in Finance Ministry (Central Board of Revenue) in exercise of the powers conferred by section 2 (S) of the Act on 5th October 1973. At serial No. 12 this notification appear the goods described as follows: "Electrial and electro-thermic domestic appliances including air conditioners and refrigerators" The question arises whether V.C.Ps. Are electrical domestic appliances as described above. Although in the opinion of the learned State Counsel they are covered by the above description, yet the learned counsel for the applicant held a different view. According to him reference to Customs Tariff Trade Control Manual would show that electrical appliances fall under para 85.12. (E) whereas musical instruments including T.V. Images etc. Appear at para. 92.11(c) of the said code, therefore, the learned counsel submitted that the V.C.Ps. Which bear relationship with T.V. And musical instruments cannot be held to fall within the description of electrical appliances. Disagreeing with the above argument of the learned counsel for the applicant, the learned State Counsel, submitted that since the V.C.Ps. Are operated by use of electricity, they can be electrical appliances within the meaning of the notification issued by the Federal Government.
7. He further submitted that it would not be proper to refer to the Customs Tariff Control Manual which has no relevance in the instant case, as it contains the rules/ guide-lines for the purpose of levying Custom duties. Thus, from the arguments of the learned counsel for the parties, it appeared that they are at variance as to whether V.C.Ps. Are electrical domestic appliances or not. In view of such dispute the question would arise if this Court could invoke its extraordinary jurisdiction conferred by section 561-A, Cr.P.C. And decide that dispute or trial Court should be left to resolve such controversy in exercise of its ordinary jurisdiction. Since the case in which the above controversy has arisen is pending in the Court of Special Judge (Customs and Taxation), Karachi who is the Court of competent jurisdiction, it lies within his jurisdiction to settle all disputes including the dispute about the interpretation of "electrical appliances" used in the Government notification.
8. As trial Court makes appraisal of the entire material laid before it and, comes to conclusion as to its acceptance or rejection, it is upto that Court to resolve all controversies arising in the case, including those relating to construction of documents and interpretation of legal provisions. Thus, the trial Court having jurisdiction in the case, can decide all disputes of legal as well as factual nature. In other words if the alternate remedy is available to the party, it will not be permissible to invoke extraordinary jurisdiction vested in this Court under section 561-A, Cr.P.C. It has been repeatedly held by superior Courts that jurisdiction under section 561-A, Cr.P.C. Is neither alternate jurisdiction nor is an additional jurisdiction and, therefore, it can be exercised only in exceptional cases when no remedy is available to the party. This is however not the case here.
9. Learned counsel for the applicant contended that so far trial Court is concerned, it has expressed its view in its order under section 265-K, Cr.P.C. And, thus remedy open to the applicant has already been exhausted. I am afraid I cannot endorse this view. Obviously the order under section 265-K, Cr.P.C. Is only interlocutory order. It cannot be regarded as final judgment. After the full material is placed before the trial Court and it has heard arguments of both sides in the light of such material, it will be then alone that it will deliver its final verdict. Again if any party is not satisfied with that decision of the trial Court, the remedy open to him will be to file appeal, and agitate the controversal issues before the appellate Court, therefore, even if this Court proceeds on the assumption that the trial Court has taken the decision on the controversy involved in the case in its order under section 265-K, Cr.P.C. Still the proceeding will not be justified because it will amount to usurping the jurisdiction of the appellate Court which can otherwise re-examine the dispute and take its own decision, thereon. Accordingly if this Court decides the above issue in exercise of its extraordinary jurisdiction under section 561-A, Cr.P.C. It will not only pre-empt the final verdict of the trial Court but will also usurp the jurisdiction of appellate Court which will in ordinary course hear appeal arising from the final judgments of the trial Court.
10. For above reasons, as stated above the quashment application being without merit was dismissed.