1. ' This order will govern the disposal of above-noted two special criminal revision applications filed by accused/applicants Shahid Ali and Sajid Hassan Khan respectively. Both the accused/applicants had filed applications under section 265-K, Cr.P.C. For their acquittal before the Special Judge, Customs and Taxation, Karachi, on the ground that there is no possibility of their conviction on the basis of the material and evidence collected by the prosecution in the case against them. The case of the prosecution as disclosed in the F.I.R. In brief is that Nihal Ahmed c/o Aftab Ahmed of P.E.C.H.S. Karachi had imported a consignment of Blow Molding Unit in which they had declared the value of the consignment as Rs,1,59,148 C&N. The Customs House detected that the valuation declared by the consignee was highly under-invoiced and they determined the value of the goods as Rs,8,70,000 C&N. Accordingly a case of misdeclaration of value under section 32 of the Customs Act, 1969 was registered against the importer. While the above case against the importer was still going on, the machinery imported by him was auctioned under section 82 of the Customs Act, 1969 for Rs,56,000 to one Nadeem by the auction staff of the Customs House, Karachi under a misdescription. Accordingly another complaint was lodged against seven accused including the present petitioners It was alleged in the F.I.R. That the auction staff of the Customs House namely Muhammad Ayub, Principal Appraiser, Sajid Hassan Khan,, Examining Officer and A.M. Shahid, Examining Officer, were asked to furnish the auction sheet in proof of the auction of the above goods but auction sheet was found missing. The copy of the auction sheet which is normally forwarded to the K.P.T. For purposes of delivery of the auction goods was also not on record.
2. However, during the investigation a copy of the delivery order signed jointly by Sajid Hassan Khan, Examining Officer and Gulzar Khan, outdoor clerk of K.P.T. Were obtained by the Investigating Agency which revealed that the goods actually put to auction was Electric Heat Toiriveal Coil Blowers' and not the Blow Molding Machine, which was delivered to the auction-purchaser. It is also stated in the F.I.R. That Muhammad Ilyas and Gulzar Khan, outdoor clerks of the K.P.T. Were directly involved in giving delivery of the goods other than that which was put to auction. It is also alleged that Adnan Junaid and Company, who were the Customs auctioneers were also allegedly involved in the transaction to the extent that they had prepared the delivery order and got it signed by Sajid Hassan Khan. Accordingly the clerk of the K.P.T., the Bidder, the Auctioning Officer and the clerk of the auctioneer Shahid Ali were made accused persons in the F.I.R. Although the above accused were challaned in the Court on 27-2-1984 but till today no formal charge has been framed against any of the accused persons mentioned in the challan or in the F.I.R. It is also worth mentioning here that two of the accused persons namely Muhammad Ayub and A.M. Shahid who were the Principal Appraiser, and Examining Officer of the Customs respectively and were accused in the above case have been let off by the predecessor in the office of the present Presiding Officer of Special Court, Customs and Taxation, Karachi by his order, dated 19-4-1986. In the aforesaid order the learned Judge, Customs, considered in detail the material collected by the Investigating Agency against all the accused and upon examination of the same reached the conclusion that there was no possibility of the conviction of Muhammad Ayub and A.M. Shahid in the case and he accordingly acquitted them under section 265-K, Cr.P.C. The present applicants, thereafter, filed applications under section 265-K, Cr.P.C. In the light of the observations made in the order, dated 19-4-1986 before the Special Judge and prayed that they may also be acquitted under section 265-K, Cr.P.C.
3. In the like manner. However, the Presiding Officer, took the view that no case for acquittal of applicants under section 265-K, Cr.P.C. Is made out. The trial Judge while rejecting the applications of applicants made following observation:- "From perusal of the F.I.R., charge-sheet and the prosecution evidence the position which emerges is that accused Shahid Ali had prepared the delivery order in respect of Blow Moulding Machine wherein he had misdescribed the machine and the said delivery order was signed by accused Sajjad Hassan Khan whereby he allowed the auction of Blow Moulding Machine under the description of some other machine. In view of the above it cannot be said that there is no possibility of the aforesaid two accused persons being found guilty and in my view it is not a fit case for decision under section 265-K, Cr.P.C. Accordingly I reject the aforesaid applications under section 265-K, Cr.P.C."
4. ' From reading of the above observations of the learned Judge it is quite clear that he proceeded on the assumption that there was misdeclaration of the Blow Moulding Machine in the auction proceedings. This conclusion by the learned Presiding Officer is contrary to the finding of his predecessor who while acquitting Muhammad Ayub and A.M. Shahid in the case held that the delivery order prepared by the auctioneer was strictly in accordance with the auction proceeding and that there was no discrepancy in so far delivery order was concerned but against that delivery order a wrong machine was delivered by the staff of K.P.T. It will thus be seen that the predecessor in the office of the present Presiding Officer of the Customs Court took the view that the material did not support the accusation against Muhammad Ayub and A.M. Shahid as the auction proceedings were correctly held in respect of machine which was correctly described in the delivery order. That finding of the learned Judge, dated 19-4-1986 has not been challenged by the prosecution in any proceedings and, therefore, it will be binding on every stage of proceedings on his successor. Apart from it the material which was collected by the prosecution agency, against all the accused persons was reviewed in detail in the order dated 19-4--086 and this material reveals no case as against Shahid Ali the applicant in Special Criminal Revision No, 4 of 1988 and, therefore, in my view in so far this applicant is concerned the trial Court should have acquitted him under section 265-K, Cr.P.C. Without any hesitation.
5. ' In so far the other applicant Sajid Hassan Khan is concerned, suffice it to say that his case is almost at par with that of Muhammad Ayub and A.M. Shahid who were acquitted under section 265-K, Cr.P.C. On 19-4-1986 by the trial Judge on the ground that there was no possibility of their conviction in the case. There is no reason why the same colsideration also should not apply in the case of applicant Sajid Hassan Khan, against whom the case alleged is of lessor gravity than that which was alleged against the accused who were acquitted under section 265-K, Cr.P.C. I accordingly allow both the revision applications and acquit both the applicants, namely Shahid Ali and Sajid Hassan Khan, under section 265-K, Cr.P.C. The bail bonds executed by them stand discharged. The R&P of the case may be sent back to the Special Judge, Customs, Karachi. .