1. ' By this common order, I propose to dispose of Criminal Miscellaneous Application No,365 of 1996, filed by the applicants Abdul Qadir and S. Sabir Mehdi and Criminal Miscellaneous Application No,366 of 1996, filed by Muhammad Imran and S. Sabir Mehdi.
2. ' The applicants through these Criminal Miscellaneous Applications have sought quashment of F.I.R.
3. No,S1/Misc/1/93, registered against them on 17-3-1993.
4. ' The contents of the F.I.R., lodged by Durrar Aidrus, Examining Officer, Customs House, Karachi, are reproduced hereinbelow:-- "A secret information was received in the Collectorate of Customs (Exports), Custom House, Karachi, that M/s. Hanif & Co., 4-Haroon Centre, Marriot Road, Karachi, have fraudulently received inadmissible amounts of duty drawback/rebate on the export of various consignments declared by them to contain manmade fibre fabric woven printed/printed polyester king palace fabric superior quality width 43"/44" AW/WT 70/75 grams per yard/printed polyester cotton blended fabrics width 32"/33" wt. 70/72 grams per yard vide various bills of export including those mentioned against S.No,4 of this F.I.R. These exports were made to following buyer and destination:- -
(i) Deira Trading Centre, Dubai.
(ii) Deira Trading Centre, Mombasa.
5. ' The exporters filed the bills of export through their clearing agents M/s. Viking Shipping Services, (CHAK No,919) Room No,7, 2nd Floor, Dinar Chamber, West Wharf Road, Karachi. The declaration on the shipping bill for the said consignments indicated that they exported manmade fibre fabric woven printed/printed polyester king palace fabric superior quality width 43"/44" aw/wt 70/75 grams per yard/printed polyester cotton blended fabrics width 32"/33" wt.70/72 grams per yard.
6. However, the secret information has revealed that these exports were fraudulent exports and were designed so to get duty drawback/rebate misdeclaration of description of goods. The secret information so reveals that in fact they had exported rice and declared it manmade fibre fabric woven printed/printed polyester king palace fabric superior quality width 43"/44" aw/wt 70/75 grams per yard/printed polyester cotton blended fabrics width 32"/33" wt. 70/72 grams per yard with a view to drawing inadmissible duty drawback under S.R.O. 187(I) of 1991, dated 10-3-1991. No duty drawback was inadmissible on export of Rice. On receipt of this information the credentials of the exporters were scrutinized and the following facts revealed that these consignments are of fraudulent nature and were despatched to their destinations in the same ship though different bills of export were filed. The N.T.N. No,09-03-2084415 indicated on the shipping bills at the time of export, on verification from I, come-tax Department has also been found as non existent.
7. ' The modus operandi for these fraudulent exports also included the examination staff for endorsing examination reports of manmade fibre fabric woven printed/printed polyester king palace fabric superior quality width 43"/44" aw/wt 70/75 grams per yard/printed polyester cotton blended fabrics width 32"/33" wt. 70/72 grams per yard instead of rice. By way of adopting this modus operandi, M/s. Hanif & Co., its owners and accomplices have caused the loss to Rs,,91,89,986 in shape of duty drawback of customs duty and sales tax. These wilful and syndicated customs fraud, with active connivance of customs examination staff, attracts provisions of section 32 punishable . Under sections 156(1)(1), 156 (1) (14) 156(1) (17) and 156(1) (82) 4ibid). Further, investigation is in progress and other such case files are also being located."
8. ' On 11-6-1998, when this matter came up for regular hearing, it was pointed out to the learned counsel for the applicants that the petition is misconceived and not maintainable as the matter is under investigation and F.I.R. Cannot be quashed at this stage. Mr. Imdad Hussain Kazi, learned counsel for the applicants, in reply, has placed reliance on a Single Bench decision of Peshawar High Court in the case of Atlas Khan and 4 others v. Azam Khan and others (1980 PCr.LJ 1018) and another Single Bench decision of Lahore High Court in the case of Falak Naz v. The State (1990 PCr.LJ 798). In both' the reported cases F.I.Rs, were quashed.
9. ' Mr. Mushir Alam, learned Standing Counsel, for Federal Government, has contended that the application is not maintainable; that the case is still under investigation, therefore, F.I.R. Cannot be quashed and that application under section 561-A, Cr.P.C. May be dismissed.
10. ' I have heard the learned counsel for the applicants and learned State Counsel as well as perused the material available on record.
11. Admittedly, the matter is at investigation stage and case has not been sent up to Court. If the case after investigation is sent up in the Court and applicants are challaned they can avail of the remedy in that event before trial Court under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. As the case may be for their acquittal after proving that the charge is groundless or there is no probability of their conviction. The F.I.R. During investigation cannot be quashed.
12. ' In the case of Ahmed Saeed v. The State (1996 SCM R 186) Hon'ble Supreme Court has held that High Court in exercise of its powers under section 561-A, Cr.P.C. Is not competent to quash the F.I.R.
13. The facts in nutshell of the reported case are that informant Ahmed Saeed lodged F.I.R. No,263 of 1995 under section 408, P.P.C. At Police Station Factory Area, Faisalabad against Rana Muhammad Rafi Khan, who filed application under section 561-A, Cr.P.C. For quashment of F.I.R. The Lahore High Court quashed the F.I.R. In exercise of its inherent powers under section 561-A, Cr.P.C. Informant being aggrieved, preferred appeal before the Hon'ble Supreme Court. The appeal was allowed and the order of the quashment of F.I.R. Was set aside. Their lordships of the Hon'ble Supreme Court have laid down the following dicta:-- "3. We have carefully attended to the arguments raised by the learned counsel for the parties. We feel persuaded to agree with the learned counsel for the petitioner that the High Court, in exercise of its powers under section 561-A, Cr.P.C., was not competent to quash the F.I.R. We find that the investigation was not complete and no challan had been submitted in the Court when petition for quashment of the F.I.R. Was filed in the High Court. The High Court, under its inherent powers, may quash Judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. Since no proceedings were pending in the Court by the time the quashment petition was filed in the High Court, the question of preventing the abuse of any Court did not arise in this case."
14. ' It was further observed that:-- ' "We are afraid that the High Court under section 561-A, Cr.P.C. Could not quash F.I.R. On the ground of mala fide or on the ground that F.I.R. Discloses civil liability..."
15. ' Thus, it is crystal clear that this Court in exercise of its jurisdiction under section 561-A, Cr.P.C.
16. Cannot quash the F.I.R. During investigation.
17. ' Consequently, I see no merit in the present applications under section 561-A, Cr.P.C. And the same are dismissed.