1. WAJIHUDDIN AHMED, J.---Pursuant to a directive of the Central Board of Revenue (C.B.R.), based on a secret information of the Directorate General of Intelligence and Investigation, a scrutiny was conducted regarding certain reported trade frauds and misuse of the export rebate facilities. In the result, inter alia, it was found that M/s. Ruby Enterprises, M/s. Lala Adnan Enterprises and M/s. Mehran Exports, Karachi, had exported 40 consignments from Pakistan, which were declared to contain embroidered maxis, embroidered sarees and men's shirts but in reality such consignments consisted wholly of second hand clothing. The relevant eight containers were consigned to M/s. Altaf Trading Company, London. However, when the goods reached Colombo the referred containers were off loaded and transshipped to Dubai, reaching there on 25-9-1986. The consignments remained lying at the Dubai Port for almost a year and were finally removed to the shed meant for disposal through auction.
2. Allegedly, when the consignors came to know that an investigation had been initiated they made an attempt to further transship the consignments to Somalia. Accordingly, M/s. Capri Corporation filed a transshipment bill on 9-12-1987 for 35 out of the aforesaid 40 consignments. It is claimed by the customs that fake invoices were produced for such purpose, the party taking delivery of 1693 packages, which were then dispatched to Ajman for transshipment to Somalia. Before, however, the packages could be sent to Ajman, the Deputy Director (Customs Intelligence and Investigation), who had gone to Dubai during the course of the investigation process got such packages examined and surveyed through M/s. Independent Surveyors of Dubai in the presence of the Vice-Consul of Pakistan in Dubai, the Director General of Ports and Customs, the Port Supervisor and a representative of M/s. Capri Corporation aforementioned. Each package was found to contain eight and in some cases nine to ten bundles of T-shirts/shirts and each bundle generally contained ten second hand nylon T-shirts in different sizes, designs and colours. These shirts are stated to have been of a very poor quality and the value of each was estimated at Dh.1.00 Pak. Rs,5 at the time). The remaining 399 packages were, got examined on 15-12-1997 by the referred Deputy Director (Customs, Intelligence and Investigation), again through M/s. Independent Surveyors of Dubai, in the presence of the Pakistan Vice-Consul in Dubai and the Port officials. Such packages also contained like material as above viz. Second hand clothing. While the above goods remained lying uncleared at Dubai for almost a year, M/s. Capri Corporation had already remitted the export value of the consignments in foreign exchare to the consignors in Pakistan. In pursuance of the receipt of foreign exchange, M/s. Lala Adnan Enterprises, Ruby Enterprises and Mehran Exports, Karachi, filed rebate claims in the Customs House, Karachi. Upon processing and sanctioning of the claims, cheques of Rs,54,59,984, Rs,68,24,980 and Rs,27,29,992 were respectively issued to the said consignors. During the course of investigation it was revealed that M/s. Ruby Enterprises and Mehran Exports, Karachi, were the sole proprietorship concerns of Magh.An Mal son of Ninu Mal whereas Lala Adnan Enterprises was registered in the name of Yahya Aziz son of Abdul Aziz. It was further found that the entities of these firms were used by Dharamdas and Munir Mushtaq in connivance with the ostensible owners of such firms and the customs staff. Thus, in his confessional statement Murshad, Manager Shipping of M/s. M.M. Isphani Limited, disclosed that after the relevant eight containers were diverted to and reached Dubai, such kept lying there with the result that Munir Mushtaq was contacted by the shipping manager. Munir Mustaq informed that clearance of the cargo was delayed due to misplacement of bank documents and that the needful would soon be arranged. Since no progress followed, Murshad again contacted Munir Mushtaq, who said that they would be sending one Noor Muhammad to Dubai to resolve the issue but, despite such assurance, no action was taken. Likewise, Zahoor Bawany, who acted as the rebate agent, revealed in his confessional statement that he received the three rebate claims from Munir Mushtaq and submitted the same in the Customs House for secrutiny and sanction. Zahoor Bawany further stated that on receipt of the cheques he usually delivered the same in the office of Munir Mushtaq. Maghan Mal in his statement recorded during the course of investigation, indicated that the firm of Mehran Exports was established by him at the behest of Seth Goband whereas Ruby Enterprises was launched, in 1985, at the instance of Seth Dharamdas, adding that, in relation to the National Bank of Pakistan account of the latter firm, he was introduced by Seth Dharamdas.
3. Maghan Mal further said that Dharamdas, Munir Mushtaq and Abdul Qadir (allegedly an employee of Munir Mushtaq) made it known to him that they would be exporting garments in the names of the said two firms and that in return they would pay him a sum of Rs,2,00,000. In like statement, Yahya Aziz, of Lala Adnan Enterprises, maintained that Dharamdas had asked him to establish an export firm in the name of his son viz. Adnan and, accordingly, Yahya Aziz came up with Lala Adnan Enterprises. Yahya Aziz stated that he never handled any documents pertaining to the firm under reference and that Dharamdas and Munir Mushtaq used to contact him and get his signatures on different documents. On the foregoing premises, demandcum show-cause notices, dated 6-10-1989, were issued to the persons above named as also to the Customs Staff, allegedly conniving with them, by the Collector of Customs (Preventive). Here we are concerned with Munir Mushtaq alone and in so far as he was concerned no reply to the show-cause notice was submitted by him and all that he sought for, through an application dated 5-11-1989, were the statement containing the particulars of the 40 consignments aforesaid, a statement of particulars of the cheques allegedly issued, the survey and customs reports collected by the Deputy Director deputed to visit Dubai and the memo.
4. Prepared for drawing samples from the consignments of the 399 packages at Port Rashid, Dubai.
5. Strikingly, this gentleman did not submit any reply whatsoever to the specifies, elaborately detailed in the show-cause notice. According necessary hearing to those noticed, as above, the Collector of Customs (Exports) ordered the referred three sums, representing duty drawbacks, to be recovered, inter alia, from Munir Mushtaq. A penalty of Rs,25,00,000 was imposed on Dhramdas and Munir Mushtaq whereas another penalty of Rs,5,00,000 was levied on Maghan Mal and Yahya Aziz, the penalties having reference to clause (14) of section 156(1), of the Customs Act, 1969. No action, however, against the Customs officials was taken, purportedly, as they were facing trial before the Court of Special Judge (Customs and Taxation), Karachi, and it was proposed to proceed against them in the light of the Court order, as and when such order was passed. Regarding compensatory rebate, amounting to Rs,1,47,87,456, obtained on the excerpt of the said goods, the matter was postulated to be left for consideration by the State Bank Authorities.
6. There were two other cases of a similar nature in which like investigation in like background was conducted. The first of these is covered by the show-cause notice dated 23-2-1989 to M/s. Munir Mushtaq, Dharamdas, Khalid Masood, Muhammad Umar, Muhammad Ibrahim etc. And the allegedly conniving Customs Staff. The firms involved this time were M/s. Faisal International and M/s. Confidence Products, both of Karachi. Allegedly fake and dubious exports were made to M/s. I.A.A. Archital in Holland. Transfer of Pakistani currency illegally to foreign countries was claimed to be involved, also in this regard and upon receipt of the foreign currency back in Pakistan various export incentives in the shape of rebates of customs duty, excise duty and compensatory rebate were to be sought. As a sequel, ostensible export worth US $14,06.500 in the name of M/s. Faisal International and of alike amount in the name of M/s. Confidence Products was effected. However, consignments worth US $29,920 and US $ 29,040, respectively, could not be dispatched whereas the twenty consignments, actually shipped, were to go to Holland A/C Capri Corporation, P.O. Box No,1414, Dubai, and the same were loaded per S.S. Lanka Asitha, destined for Rottardam. The destination was, much as above, changed at Colombo and the goods, instead, were unloaded at Dubai. Because the consignments remained uncleared at Dubai, the Customs Authorities of the UAE served several notices to the consignee. No response coming through the goods, found to be worthless, were auctioned on 11-3-1987. Even so. The sale proceeds of the purportedly exported but uncleared goods had already been remitted to Pakistan which enabled the parties to claim the necessary rebates, such, at the time, consisting of customs duty at 18%, excise duty at 1.50% and compensatory - rebate of the State Bank of Pakistan at 10%. The following collections were accordingly made:- "Customs Duty. Excise Duty, Corn. Rebates M/s. Faisal International Rs,38,95,288 Rs,21,69.909 M/s. Confidence Products Rs,38,68,094, Rs,64,668 Rs,77,63,382. Rs,64,668Rs,21,52,751 Rs,43,22.660 In course of time the investigation revealed that Muhammad Umar son of Abdur Rahman of M/s. Faisal International and Ibrahim Isma il son of Ismail of Confidence Products were used as tools. It was Seth Dharamdas who had instructed the said two persons for opening the firmscurrent accounts. The two explained in their statements under section 164, Cr.P.C. That they had prepared the shipping bills for the alleged exports on the directive of their employer, Dharamdas. They were to receive compensation for the work done by them at the rate of 1.5% to 2% of the invoice value.
7. Ibrahim Ismail also admitted to have received a sum of Rs,50,000 from Dharamdas on the occasion of his marriage. Dharamdas had got blank cheque books signed by Muhammad Umar and Ibrahim Ismail. The export shipping bills were to be handled by Munir -Mushtaq, as clearing agent.. These persons added that after the shipping bills had been duly typed the same were handed over by Dharamdas to Munir. Mushtaq for due processing. The moneys received in the bank used to he drawn by Dharamdas and made over to Zebate Khan and Wazirzada for transmission abroad. Dharamdas also applied for refinancing of D.M. Group at the Pearl Continental Branch of U.B.L. And there clearly showed himself as the proprietor of Mis. Faisal International and Confidence Products. Another account was also opened by Dharamdas at the Subzi Mandi Branch. Karachi, of the Muslim Commercial Bank and the same was meant to deal with the rebate cheques. The cheque hooks were taken away byDharamdas, as before, after getting the same duly signed in blank. There are other allegations of alike nature as well where Munir Mushtaq was shown involved. Munir Mushtaq had also purchased Plot No,31-A. Sector 23, Korangi Township, Karachi, for the purposes of storage, packing and export of second hand jackets and second hand clothing. Munir Mushtaq, on his part, revealed during the investigation that he had received a full pad of blank shipping bills from Rab Nawaz of Raza Enterprises but processing of the bills was done by his employee, Muhammad, who was paid for the job by Dharamdas. Munir Mushtaq further admitted that majority of the goods in the consignments only comprised a few pieces of maxis, second hand clothing and other second. Hand garments. A more elaborate version of the Foregoing is to be found in the referred-show-cause notice dated 23-21989.
8. An identical case is covered by another show-cause notice dated 21-3-1989 and there too, as in the preceding case. 20 shipping bills were involved and the same Firms of Faisal International and Confidence Products were said to have dispatched fake consignments of garments, again to M/s. I.A.A. Archital, Lelysted in Holland. The persons involved were also more or less the same namely.
9. Munir Mushtaq, Dharamdas, Muhammad Umer, Ismat Ibrahim etc. Along with the conniving Customs officials. Purported exports of Mis. Faisal International and Confidence Products were worth US $ 15,50,800 each, out of which, in either case, consignments worth US $ 34,000 could not be shipped. In identical circumstances, as in the case covered by the notice dated 23-2-1989, the goods, were diverted to Dubai and having lain there un cleared for some time and not containing any trading goods were auctioned by the Dubai Customs. Even, so the parties had promptly arranged for disbursements of the necessary foreign exchange on account of which the following claims were raised, processed and sanctioned:-- "Customs duty Exe. Rebate. Comp. Rebate.
10. M/s. Faisal International Rs,43,65,760 Rs,25,17,222.20 M/s. Confidence Products Rs,43,82,500 Rs,87,48,260Rs,25,18,432.70 Rs,50.35,656.90 Based on like allegations, as in the earlier notice for the previous 20 consignments, the said notice dated 21-3-1989 was issued.
11. For our purposes only Munir Mushtaq is relevant. He entered evasive replies to the said two notices dated 23-2-1989 and 21-3-1989, making a bald. Denial of the allegations. He, however, admitted that he had purchased the above plot but said that he had leased out the same, apparently,- to the alleged offenders. He also said that rebate cheques were conventionally posted to the persons entitled and not made over in the way alleged. Significantly, in his statement, he did not deny the details. As reflected in the show-cause notice nor explained either the statements against him or the other inculpatory material. On the basis of the relevant documentary and other material, including confessional statements, statements under section 161, Cr.P.C. And the connected record, the Collector Customs (Exports) per separate orders-in-original dated 24-8-1993 directed recoveries as under:-- "ORDER-IN-ORIGINAL NO.314/1993
10. It-is hereby ordered that--
(i) a sum of Rs,38,95,288 paid as duty drawback on the export of goods exported in the -name of Faisal Enterprises may be recovered from Dharamdas. Munir Mushtaq and Muhammad Umar: and
(ii) a sum of Rs,38,68,094 paid as duty drawback and Rs,64,668 as excise duty on the goods exported in the name of M/s. Confidence Products may be recovered from Dharamdas. Munir Mushtaq and Ebrahim Ismail.
11. A penalty of Rs,25,00,000 (Rupees twenty-five lakh) is imposed each on Dharamdas and Munir Mushtaq under section 156(1). Clause (14) of the Customs Act, 1969. A penalty of Rs,5 lakh (Rupees five lakh) is hereby imposed each on Muhammad Umer and Ibrahim Ismail under section 156(1).
12. Clause (14) of the Customs Act.
13. 1969."
14. "ORDER-IN-ORIGINAL NO.315/1993
10. It is hereby ordered that:
(i) A sum of Rs,43.65,760 paid as duty drawback on the export of goods exported in the name of Faisal Enterprises may be recovered from Dharamdas, Munir Mushtaq and Muhammad Umar; and A sum of Rs,43,82,500 paid as duty drawback on the goods exported in the name of M/s. Confidence Products may be recovered from Dharamdas, Munir Mushtaq and Ebrahim Ismail.
11. A penalty of Rs,25,00,000 (Rupees twenty-five lakh) is imposed each on Dharamdas and Munir Mushtaq under section 156(1), clause (14) of the Customs Act, 1969. A penalty of Rs,5 lakh (Rupees five lakh) is hereby imposed each on Muhammad Umer and Ibrahim Ismail undersection 156(1).
15. Clause (14) of the Customs Act. 1969,"
16. As regards the Customs officials, similar orders were passed as in the case first-mentioned above, besides meting out identical treatment with reference to the compensatory rebate, having nexus with the State Bank of Pakistan.
17. Against the three sets of the orders-in-original Munir Mushtaq preferred appeals before the C.B.R.
18. His main contention was that the proceedings were conducted improperly by the Collector of Customs and that he was not provided an opportunity of cross-examining the witnesses cited against him. The Member, ('.B.R. Hearing the appeals opined that Munir Mushtaq did not submit any reply/due reply to the show-cause notices, nor specifically and squarely repudiated the allegations against him nor asked for examination/cross examination of any witnesses, In this background, the adjudication proceedings were found to be in order and the three orders-in-original were upheld by the C.B.R. However, the learned member deciding the appeal noted that a long time was taken by the Customs to decide the matters, that even after such inordinate delay it took an order of the Sindh High Court, obtained by the informer to have the matters taken up, that the allegedly offending Customs officials were left untouched on the basis of improper assumptions of facts and law and that even the State Bank of Pakistan was not duly communicated with the orders so as to make recoveries of the compensatory rebates in each case. The relevant observations, being more or less, common in the three orders and culled from one such order, are reproduced hereunder:-- "11. This case was detected in 1989 and the show-cause notice was issued on 16-10-1989. However the adjudication order has been issued on 24-7-1993 which is after an inordinate delay. This was the largest case involving serious export rebate fraud involving collusion of Customs officials. The officers up to the level of Assistant Collector were suspended and also proceeded against in the Court of Special Judge (Customs and Taxation) and the then Collector was made on O.S.D. For many years. It was therefore to be expected that the adjudication proceedings after the issue of show-cause notice would have progressed with utmost speed and completed expeditiously.
19. Unfortunately such has not been the case. It is most unfortunate that this case was adjudicated only upon direction received from honourable Sindh High Court where the informer in this case filed a writ petition on the delay in the adjudication of this case.
12. The adjudication order passed by Collector is unique. A show-cause notice was issued to the accused persons who included the Customs officials. It was therefore, required that the Collector (Exports) would pass order in respect of each of the accused persons. However, the adjudication order is silent about the Customs officials to whom the show-cause notice was directed. Collector (Exports) has merely indicated that the case against the Assistant Collector. Mr. Jalal Shah, was withdrawn from the Court of Special Judge (Customs and Taxation) and the case against the remaining Customs officials is still before the Special Judge (Customs and Taxation), Karachi. The Collector (Exports) has thus conveniently abdicated his role and has not adjudicated upon the case in respect of the accused Customs officials. The adjudication proceedings before the Collector and the Challan before the Special Judge (Customs and Taxation) are different proceedings. The decision of the Collector (Exports) ordering recovery of Government dues and imposition of penalty on certain accused persons in fact substantiates this position. The Customs officials to whom show-cause notices were issued are like the other accused persons and the Collector (Exports) had to adjudicate the case in respect of these Customs officials. The case is remanded to Collector (Exports) to adjudicate the case in respect o the Customs officials to whom show-cause notices were completed within two months.
13. The case was detected in 1989. The order of Collector (Exports) regarding recovery of Government dues reveals that Government dues have not been recovered so far. This is unfortunate as being a most serious case recovery of Government dues should have been completed expeditiously. I direct Collector (Exports) to pay personal attention to the recovery of the Government dues and to monitor the position constantly till Government dues are realised.
14. The order by Collector (Exports) indicates that even though show-cause notice in this case was issued on 16-10-1989, the case having been detected much earlier. State Bank of. Pakistan Authorities were not intimated the huge fraud which had led to fraudulent payment of Rs,1,47,87,456--as compensatory rebate to the accused persons. Collector (Exports) will pursue the matter with the State Bank of Pakistan Authorities to ensure that the relevant amount is realised expeditiously. "
20. It is regrettable that uptil now neither, as stated by the learned Standing Counsel, any recoveries have been made nor the Customs officials have been proceeded against nor the Special Judge (Customs and Taxation), Karachi, has concluded the proceedings nor any progress has been made at the level of the State Bank of Pakistan. These facts in themselves, speak volumes of how matters of vital public interest are being attended to in the relevant quarters. In the result, sources of State revenue are not only shrinking out even drying up. It has now become axiomatic that while the Revenue is becoming poorer by the day the revenue staff is continuously attaining higher levels of prosperity, albeit, ostensibly, ill-gotton.
21. Be that as it may, against the referred orders of the C.B.R. Munir Mushtaq preferred Constitutional Petitions Nos. D-551 of 1994 and D-791 of 1994, but each was dismissed in limine by the High Court of Sindh the first on 21-4-1994 and the second on 4-5-1994.
22. Against such dismissals leave petitions were brought in this Court and leave was granted in one case on 5-7-1994 and in the other on 2-4-1995. The operative part of the first leave granting order, because the second is based on the first, is as under:-- "Leave to appeal is granted to examine the evidentiary value of the afore stated statements in the proceedings under the Customs Act and also to consider whether or not the respondent No,1 in proceedings under section 32(2) of the Customs Act, 1969 and under section 156(1) clause (14) of the Customs Act was legally justified to rely on the statements recorded by the Magistrate under section. 164, Cr.P.C. And by the police during the investigation in the criminal case."
23. We have heard these matters at some length, Mr. Fakhruddin G. Ebrahim, the learned Senior Advocate Supreme Court appearing for the appellant, has referred us to the following passage, occurring in Federation of Pakistan v. Sardar Ali, PLD 1959 SC (Pak.) 25:-- "It appears to us that the full import of the amendments made in the law was not realised by the Customs Authorities or even by the Central Board of Revenue. In view of the new law placing a definite onus on the possessor of this type of goods, clearly such a person is entitled to an opportunity of not only being heard but of adducing evidence, if necessary, to discharge that onus.
24. This opportunity has in fact been denied to the respondents in the present case. After the receipt of a notice from the Assistant Collector to show cause and the submission by them of a written explanation together with certain receipts and vouchers, an Intelligence Officer appears to have been deputed .o make an ex parte enquiry in order to verify whether the defence raised was true or not. Certain witnesses were apparently examined by the Intelligence Officer behind the back of the respondents who had no chance of cross-examining them to elicit facts in their own favour. The statements made by those witnesses were not even put to the respondents at any stage and we have it on the authority of the learned counsel for the respondents that for the first time they became aware that any such statements had been recorded by a departmental officer, during the pendency of the writ proceedings in the High Court. We feel not a little disturbed that pre-judicial action could be taken by the Customs officers in a matter touching valuable rights to property as well as the personal liberty of the subject, on the basis of a private inquiry in which the person concerned was not allowed to participate. It does not appear from the documents on record, although the allegation finds a place in the affidavit of one of the officers of the Department, that the Collector either conceded a right of audience or the right to establish their defence by evidence to the respondents. The Collector's order, on the contrary, appears to have been based on certain departmental reports and a consideration of the initial written statements submitted on behalf of the respondents. In our opinion, the failure to follow the correct procedure envisaged by the amended law, vitiated his order". (Emphases supplied)
25. Reliance has also been placed on Akbar Adil v. Republic of Pakistan PLD 1962 Karachi 362, where Wahiduddin Ahmed, J, speaking for the Bench, and drawing upon the observations of their Lordships in Sardar Ali's case, recorded as under:-- "There is not the slightest doubt in our minds that the impugned order offends the principles of natural justice; In the case before the Collector of Customs serious allegations were made against the petitioner and it was his duty to give him not only an opportunity of personal hearing but also to furinsh him with the report of the officers made against him in order to provide an opportunity to cross-examine them. Therefore, the impugned order ordinarily was liable to be quashed."
26. The cited cases are clearly distinguishable. In the first place, the newly inserted section 177-A, in the then applicable Sea Customs Act, 1878, spoken of in Sardar Ali's case casting burden of proof on the offender himself had already been amended, when such precedent case was decided and secondly, ever since, the Sea Customs Act itself stands substituted by another statute viz. The Customs Act, 1969. Our attention has not been drawn to any dispensation, under the current legislation even remotely analogous to section 177-A ibid. Thus also in such matters, as were in contemplation hi Sardar Ali's case, the onus stood shifted to where the same originally belonged namely, the Customs Authorities. Much the same way, in Akber Ali's case there were allegations of mala fides against the Customs staff and the petitioner had claimed that the allegedly undeclared foreign exchange had been planted on him. Observations in the two cited cases, therefore, had some nexus with the said circumstances. Even so, due opportunity of hearing and furnishing of the necessary particulars from which the allegations, mating from the Customs, directly arise still remain a requirement of such proceedings notwithstanding the fact that the proceedings at best are of a quasi-judicial nature. However, such rule, as reflected in the precedent cases, above- referred, though applicable, does not seem to have been violated. Thus the allegations against the appellant and his associates were in all details fully reflected in the three show-cause notices, that are the foundations upon which these proceedings rest. It, therefore, became incumbent upon the appellant to specifically and pointedly meet at least such allegations as were expressly directed against him. Not only that, the appellant was required also, in line with the principle in Article 122 of the Qanun-e-Shahadat to disclose such facts, pertaining to the transactions, as happened to be "especially" in his knowledge. None of these was done. In relation to the first case of the purported exports by Ruby Enterprises, Lala Adnan Enterprises and Mehran Exports, Karachi, the appellant did not bother so much as even to file a written reply what to say of squarely meeting the allegations against him. On the contrary, the appellant only sought for supply of such documents and material from the Customs as would, probably, imply his actual role and effective participation in the transactions. In such circumstances, where the appellant did not even duly enter defence and merely participated in the proceedings, apparently, to watch his interest in the matter there was hardly any fault in the procedure adopted by the Collector of Customs. No rule of natural justice nor of judicial propriety touching procedure was, in the circumstances, violated.
27. In relation to the other similar case, covering Faisal Enterprises and Confidence Products, while something in the way of reply may have been filed, though we do not know for sure whether the same was actually filed, the fact remains that the purported reply, placed on our record, is totally evasive and little beyond a bare denial, which does not serve the purpose of the ex facie offending transactions, where the appellant was himself the shipping agent of the consignments involved.
28. The appellant, in the circumstartes, could hardly pass on responsibility upon an employee, as maintained and get away with the acts of commission and omission of his own, or at the very least, his father's firm.
29. Coming now to the salient features of the case against the appellant even though the appellant has been shown to be the driving force behind the contravening activities of Ruby Enterprises, Lala Adnan Enterprises and Mebran Exports, Karachi, and even though the appellant functions as a clearing agent, the appellant had studiously avoided to figure as the clearing agent for the disputed exports of the said three firms. Still the events, as they have unfolded, indicate that it was the expertise of the appellant, as a professional clearing agent, upon which the others drew for making unlawful gains to themselves and causing unlawful loss to the revenue. While specific roles were assigned to the appellant in respect of the demonstrably fake and fraudulent transactions of as many as a total five firms in these two appeals, the appellant cared to explain nothing. All of this is to be considered in a legal background, where the proceedings were quasi-judicial in nature, as distinguished from collateral proceedingsbefore the Special Judge, un disputably filling the character of criminal proceedings. As regards criminal proceedings also, an accused person has to plead 'not guiltyand claim a trial before a full-fledged trial takes place. The appellant did not consider it worth his while to even effectively repudiate what was so forcibly alleged against him and what ex facie was corroborated by a series of similar transactions in which the appellant figured as also by the in culpatory confessions of the appellant's own associates. Needless to add that with or without specific denials of the allegations against him the appellant was always at liberty to ask the Collector to make available for cross-examination all or any of the persons who had made the statements under section 164, Cr.P.C. Implicating the appellant. He did not do so nor did he offer himself as a witness to contradict what, allegedly, he had stated before the Customsinvestigatory personnel, clearly admitting his role as clearing agent in respect of the consignments pertaining to the firms of Faisal Enterprises and Confidence Products. May it be stated here that even if, upon the facts and circumstances, the ratio in the cases of Sardar Ali and Akbar Adil applied to the appellant's case confessional statements, envisaged by section 164, Cr.P.C. And qualifying under Articles 38 and 39 of the Qanun-e-Shahadat, whether of an in culpatory or exculpatory nature and one's own statement to the Customsinvestigators, are definitely higher in value and weight than mere statements of third parties recorded by an Investigating Officer of the Customs, as was the position in Sardar Ali's case. Confessional statements even when they are retracted, if corroborated, have evidentiary value of their own and can surely be notified to those concerned for explanation and if warranted can even be relied upon in collateral quasi-judicial proceedings. While a third party, being proceeded against in such collateral proceedings, may question the effectiveness, relevance and even propriety of such confessional statements and may even insist upon the production of those making such statements and seek their cross-examination, such an affectee cannot, without raising a proper challenge at the outset, just turn round at the appellate or a still higher stage to question the validity of his own implication therein, solely on the ground that the confessors were not voluntarily produced to depose against him directly in the collateral quasi-judicial proceedings of an adjudicatory nature. Nothing, therefore, turns on the purely technical pleas advanced by the appellant. Significantly, we have not even been informed as to whether the other alleged associates of the appellant have raised any challenge to the findings of the Collector against them, as upheld in appeals by the Board for if they had raised such a challenge such would have been dealt with. On its own merit but if those others are waiting in the wings to take advantage of the technicalities, in a more remote role of the appellant than their own, they do not deserve the satisfaction or the advantage of the appellant's succeeding solely on technicalities and against the justice of the case.
30. It is one of the essentials, at this stage, to attend to the various irregularities and even illegalities, which have surfaced pertaining to the conduct of this and the ancillary proceedings. Thus the Secretary, Board of Revenue, and the Collector of Customs (Exports), Karachi, would report with two monthstime as to what action, in line with the observations of the Board, has so far been taken against the Customs officials notified through the three notices involved in these proceedings. Like report as to what departmental inquiries have been conducted against such officials and with what results. In the event none of this has been done, explanations would be submitted within a period of two weeks, mentioning the maximum time frame within which the needful would now be accomplished. Correspondingly, the C.B.R., the Collector of Customs and the State Bank of Pakistan would report, within a month's time, regarding the recoveries made so far from the offenders, and, in case of non-realisations of the whole or part of the same, the reasons for the non-realisations. In the event of outstanding recoveries, the C.B.R., the Collector of Customs and the State Bank of Pakistan would ensure that the needful is done within a month's time with reports of compliance submitted to this Court. Like query would be raised from the Special Judge (Customs) as regards the delay in the conclusion of the proceedings before him, at the same time explaining the causes of delay. In the event the proceedings have not yet concluded, the Special Judge would take steps to complete the same within three months of the date of communication of this order which will be forwarded to him, to the State Bank of Pakistan, the Secretary, C.B.R. And the Collector of Customs (Exports) by the Registrar of this Court. The Registrar would also ensure that this matter is put up before the Court upon the expiry of each period of time, visualized above irrespective of the fact whether a report in terms has or has not been received but with an office note of progress achieved in the meantime.
31. In view of the above, there is no merit in either of these appeals which are dismissed.