The applicant Syed Nazir Hussain Shah has filed this application under section 561-A, Cr.P.C. For quashment of proceedings pending against him before the learned Special Judge, Central III, Karachi, in Criminal Case No,4 of 1997.
2. The first information in this case was entrusted to Mr. Basharat Mahmood Shahzad, Assistant Director, F.I.A. S.I.U., Islamabad for investigation. It was registered on 16-2-1997. This F.I.R. No,2 of 1997 was lodged by Shaikh Naseer Ahmed, Sub-Inspector/Additional S.H.O. F.I.A. S.I.U., Islamabad.
3. Briefly stated that case of prosecution is that Asif Ali Zardari, Ex-M.N.A./Federal Minister for Environment and Foreign Investment, by abusing his official position, as holder of Public Office in collusion with the then Managing Director, P.I.A., the then Deputy Collector Customs, Air Port Karachi, namely Nazir Hussain Shah (applicant herein) and others by abusing their official position as Public Servants intentionally deviated from the settled procedures/rules relating to the export/airlifting of huge consignment comprising eight big wooden packages, without paying/realizing the prescribed duties/taxes and freight charges leviable thereon. The said consignment was cleared by one Mr. Paul John Keating of 15 Grove Road, Luton Bedford Shire, on the basis of the authority letter dated 2-5-1996, given by Wajid Shamsul Hasan, ex-High Commissioner of Pakistan at London. By this authority letter Mr. Paul John was authorised to collect the personal affects received from Pakistan on P.I.A. Flight No,PK-787 on 25-4-1996 under airway bill No,214-01-635012. Wajid Shamsul Hasan was not legally authorised in any manner to issue such an authority letter in the name of Mr. Paul John Keating for clearance of the consignment in question, which virtually contained personal affects of Asif Ali Zardari. Wajid Shamsul Hasan, therefore, abused his official position as public servant in the capacity of High Commissioner of Pakistan at London and thereby caused wrongful loss to the Government exchequer by deriving wrongful gain to himself and other concerns. Thus, the accused prima facie committed the offences of cheating, criminal breach of trust, abuse of official position, smuggling, evasion of customs duty etc. Under sections 409, 420, P.P.C. Read with section 109, P.P.C. And under section 156(1)(8)(14) of the Customs Act, 1969 read with section 5(2) of Act II of 1947. It was on the basis of these facts that Sheikh Naseer Ahmed, Sub-Inspector/Additional S.H.O. F.I.A S.I.U., Islamabad, lodged F.I.R. On 16-2-1997, containing the particulars mentioned hereinabove.
4. The applicant and co-accused named herein are at present facing trial under sections 409, 420, P.P.C. Read with section 109, P.P.C. And section 5(2) of Act II of 1947, in the trial Court named hereinabove.
5. The applicant moved an application under section 249-A/265-K, Cr.P.C. For his acquittal. The trial Court by its order dated 21-11-1998 declined to grant the prayer of applicant.
6. I have heard Mr. A.Q. Halepota, and Mr. Abdul Haleem Pirzada, the learned counsel for the applicant and Syed Mamnoon Hasan, the learned Deputy Attorney-General, for the State. In this matter, pre-admission notice was issued to the learned Dy.A.-G. With the consent of both the parties, this matter was finally heard and it is disposed of by this judgment.
7. It is argued by Mr. A.Q. Halepota, that the applicant, being Deputy Collector Customs (Preventive) posted at the airport at the relevant time, did not violate any provision of the Customs Act or Rules.'
No case under section 156(1)(8)(14) of the Customs Act, 1969, was, therefore, sent-up against him in the Court of Special Judge, Customs and Taxation, Karachi.
8. It is further argued that the applicant had merely endorsed a letter received from Foreign Affairs Division, Islamabad and sent it to the Collectorate of Customs Exports and Rebates, Customs House, Karachi. Since the matter relating to the airlifting of this consignment was to be dealt with by the said collectorate and not by the preventive collectorate of which the applicant was the Deputy Collector at the relevant time. It is submitted that no illegality whatsoever was committed by the applicant as neither any duty was payable on the personal household goods sent to United Kingdom nor any of the provisions of the Customs Act, 1969 were violated.
9. Mr. A.Q. Halepota, further submitted that in this case the role of each accused was examined by the Ministry of Interior as well as Ehtesab Cell during the preparation and submission of reference to the Chief Ehtesab Commissioner, wherein the name of the applicant was categorically dropped from the list of accused. He referred to the relevant portion of a report in this regard. This report is filed as Annexure 'K' to the main application. The role of the applicant was also thoroughly examined by F.I.A. And in this regard Mr. A.Q. Halepota referred to report dated 29-5-1997 which was forwarded by Mr. Yameen Khan, Deputy Director, F.I.A., C.B.C., Karachi, to the F.I.A. Headquarters at Islamabad. This report was examined by the F.I.A. Headquarters and the name of the applicant was suggested to be kept in column 2 of the Challan. Since the evidence against the applicant was weak and insufficient the name of the applicant was put in column 2. This report is filed as Annexure 1' to the main application. Despite this report, the learned trial Judge did not grant the prayer for acquittal then made by the applicant, with the result that he had to seek indulgence of this Court by way of quashment Application No,334 of 1994. It is submitted by Mr. A.Q. Halepota that during the pendency of the above application, moved by the applicant under section 561-A, Cr.P.C.
The Investigating Officer submitted a supplementary challan before the trial Court on 6-11-1998, changing the status of the applicant in column No,2 of the said challan from accused "sent up for trial" to "accused not sent up for trial". Mr. A.Q. Halepota, read the relevant portion of the said supplementary charge-sheet. This supplementary charge-sheet is filed as Annexure 'M' to the main application. In view of this supplementary charge-sheet, the earlier application for quashment was not pressed by Mr. Abdul Haleem Pirzada, the learned counsel, who appeared for the applicant and on 16-11-1998 he was allowed to move a fresh application for acquittal before the trial Court in view of the changed circumstances.
10. Mr. A.Q. Halepota, submitted that a fresh application moved by the applicant also met with the same fate and the learned trial Judge by his order dated 21-11-1998 rejected the prayer for acquittal made by the applicant. It was submitted by Mr. A.Q. Halepota, that the applicant did not commit any offence .Whatsoever. It was in these circumstances that the supplementary charge- sheet was filed by the F.I.A. In the trial Court stating therein that entire case of the prosecution concerning the involvement of accused Syed Nazir Hussain Shah has been examined by the Ministry of Interior, Law and Justice Division as well as by F.I.A. Headquarters, Islamabad and it has been found that he has not contravened the provision of any law in the instant case. This is the reason why the applicant's name was put in column No,2 of challan as one 'not sent up for trial'.
This being the position it was assiduously argued by Mr. A.Q. Halepota, that the case against the applicant is bound to end in acquittal and it will serve no useful purpose to permit the prosecution to continue against the applicant. Mr. A.Q. Halepota, submitted that in fact continuation of such prosecution against the applicant amounted to abuse of process of Court.
11. Mr. Abdul Haleem Pirzada, who also addressed this Court, submitted that the prosecution earlier submitted a supplementary charge-sheet Annexure 'C' in the trial Court, wherein the name of AVM Farooque Umer was dropped and the name of the accused Muhammad Nawaz Tiwana, the then Managing Director, P.I.A. And'that of his Special Assistant Sikandar Ellahi were included in the said supplementary charge-sheet in column No,2 thereof. The perusal of the said supplementary charge-sheet showed that the Ministry of Interior, after thorough investigation deleted the names of Muhammad Nawaz Tiwana and Sikandar Ellahi from the list of accused. In view of these directives from the Ministry of Interior, Jalal Khan, Inspector, F.I.A., S.B.C., Karachi, placed the names of Muhammad Nawaz Tiwana and Sikandar Ellahi in column 2 of this supplementary challan "as not sent up for trial". Mr. Abdul Haleem Pirzada submitted that proceedings in the above criminal case were quashed and Muhammad Nawaz Tiwana and Sikandar Illahi were let off by this Court vide orders passed in Criminal Miscellaneous Application No,225 of 1997. This order was passed on 1-11-1997 by Mr. Justice Zakir Hussain K. Mirza (as he then was). It is, thus, forcefully argued by Mr. Abdul Haleem Pirzada that the case,of the applicant is almost identical to that of Muhammad Nawaz Tiwana and Sikandar Illahi as the F.I.A. Has also filed supplementary charge-sheet (Annexure 'M') in the trial Court holding that the applicant did not contravene any provision of law and consequently put his name in column 2 of the said supplementary charge-sheet as an accused 'not sent up for trial". Mr. Abdul Haleem Pirzada, submitted that the proceedings pending against the applicant in the trial Court in the above case also ought to be quashed on the principle of consistency.
12. Syed Mamnoon Hasan, the learned Dy. A.-G. Frankly stated that he was unable to controvert the above factual position and submitted that this Court may pass any appropriate order as it deemed fit.
13. I have carefully considered the submissions made by the learned counsel for the parties. I have also gone through the documents placed on record. In this case the trial Court examined a diplomat namely Nisarullah Baloch. He has categorically stated that he had received a reply (Exh.
32) from applicant Nazir Shah regarding this consignment that it was not his duty to handle the exports and that Nazir Shah had made it clear to him that he had nothing to do with the consignment hence it may be sent to A.C. Exports to be dealt with. Mr. Abdul Rashid Baloch, who was a customs officer was also examined by the trial Court. He admitted that accused Nazir Shah had nothing to do with the export of unaccompanied baggage and that in his view no customs duty was leviable on the export of household articles and food stuff as declared in this particular case. The perusal of letter (Annexure 'T') to the main petition, which was written by Dr. Ashfaque Ahmed Tunio, Deputy Collector, Customs Headquarter w the Deputy Director F.I.A., S.B.C., Karachi, during investigation, showed that no customs duty, sales tax or central excise duty was leviable on the export of household goods. The copies of SR0.607(1)/95, dated 4-7-1995 and SR0.714(1)/95, dated 20-7-1995, which are attached to this letter confirm the contents of said letter. The name of the applicant was dropped from the list of accused while the matter was being processed for reference to Chief Ehtesab Commissioner. The applicant's role was thoroughly examined by F.I.A., Ministry of Interior and Ministry of Justice and Law Division, Government of Pakistan and it was found that the applicant did not contravene any provision of law. He was, therefore, not sent up for trial, vide supplementary charge-sheet Annexure 'M'. There is force in the argument of Mr. Abdul Haleem Pirzada, that the case of the applicant was identical to that of Mr. Muhammad Nawaz Tiwana, the then Managing Director, P.I.A. And his Assistant Sikandar Illahi, proceedings against whom were quashed by Mr. Justice Zakir Hussain K. Mirza (as he then was). The perusal of the order dated 21-11-1998, passed by the learned trial Judge showed that the case of the said Muhammad Nawaz Tiwana was a bit distinguishable. The distinguishing features of Muhammad Nawaz Tiwana's case were, however, not so significant, as to warrant denial of relief sought by the applicants. I am of the considered view that applicant is entitled to the same treatment on the principle of consistency. The applicant is customs officer. He was only concerned with customs duty and other duties legally recoverable by the Customs Department.
14. Admittedly, no customs duty, sales tax and excise duty were leviable on personal affects, which were to be airlifted by P.I.A. The Investigating Agency, i,e, F.I.A., Ministry of Interior and Ministry of Justice and Law found that the applicant did not contravene any law. In such circumstances the continuation of proceedings against the applicant would be abuse of process of Court. In this view I am fortified by a decision reported in case of Hamida v. State PLD 1973 Karachi 478. It may be advantageous to reproduce the observations made by (late) Chief Justice Tufail Ali A. Rehman at page 482 of the said report: "Now while I agree that the most usual case which would call for quashment under section 561-A, Cr.P.C. Would be a case where the allegations constitute no offence at all, that section in its own terms does not state anything of the kind. Indeed as I understand that section it purports to give no new powers to the High Court but reaffirms an inherent power already existing to give effect to any order under this code or to prevent abuse of process but it does not I think follow that whenever such an allegation exists, however, flimsy the evidence which supports it and, however, transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of a trial often prolonged in such matter, I cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassm ent of accused persons whose acquittal is in any way certain and this would be an abuse of process of the Court and that in any event under section 561-A an order to quash the proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the farce of a trial which can result in an acquittal only."
15. In the circumstances, I do not agree with the learned trial Judge that the closure of the case against the applicant would amount to throttling of prosecution case.
16. Consequently, this application is allowed and the proceedings pending only against the applicant in Criminal Case No,04 of 1997 of F.I.A. S.I.U., Islamabad, are hereby quashed. The applicant is on bail. His bail bonds are discharged. Under these circumstances, M.A. No,3519 of 1998 and M.A. No,3260 of 1998 have become infructuous and are dismissed.