This criminal appeal has been directed by the Federal Government through Director Intelligence and Investigation (Customs, and Excise) under section 185-6 of the Customs Act, 1969 against the order dated 7-6-1995 of the Special Judge Custom Lahore by which the respondent has been acquitted from the charge in the F.I.R. No,316 registered on 29-6-1994 at Police Station - Ghoiki District Sialkot under section 156(1)9, 14, 77, 81, 82, 178 of Customs Act, 1969.
2. Brief facts of the prosecution case are that a secret information was received by the Assistant Director Intelligence and Investigation (Customs and Excise) Lahore that M/s. Kadri Traders imported 1255 bales of rubber-V belts from China through Sambrial Dry Port which were being got cleared by misdeclaring the quantity/length of rubber-V belts in connivance with the customs staff of dry port Sambrial in consideration of wrongful monetary gains from them. When the information was received the consignment had already arrived at the Sambrial dry port and was in process of clearance. A special team after the receipt of the information was constituted and also deputed for surveillance at and around the customs dry port Sambrial. On 16-6-1994 at about 4:20 p.m. two containers bearing Nos,MLCU-262754 and MMMU-3509790 loaded on tractor trailers were intercepted by the 2nd team near the Octroi Post Wazirabad Road, Sialkot andwas brought to the Customs Intelligence Office, for verification. On verification it was found that the Customs staff of the dry port duly authenticated the entries by completing the assessment. As a result, customs' duty and other taxes, amounting to Rs,15,01,108 were paid in the National Bank of Pakistan Sambrial Dry Port Booth vide Customs Cash Nos,106 and 107 dated 19-6-1994 which were actually deposited on 16-6-1994. On examination of the contents of two containers, the total quantity Of rubber-V belts of sections A, B, & C was found to be 4304358 inches. In other words there was an excess quantity of 8,31,479 inches as compared to the declared quantity in the aforesaid Exchange Control Copy of bill of entry of said containers alongwith tractor trailers and their contents, were, therefore, seized under the relevant provisions of the Customs Act for further investigation. While the matter was in process of preliminary enquiries, on the morning of 18-6-1994 information was received that a container loaded on a tractor trailers was lying parked near the factory area opposite Rana Chemical, Sialkot which was in fact a port of this very consignment and special team of Customs Inelligence intercepted the container and found rubber-V belts of Camel Brand of China origin having the total quantity measuring 812448 inches. Driver of the tractor trailer could not, produce import documents thereof. Therefore, the goods were seized of and it was found that this trailer was part of the earlier trailer and was having dry port Gate Pass No,2691 dated 16-6-1994 alongwith other vehicles already seized and it was also brought into notice of the Customs Intelligence Office Gujranwala. The management of Sambrial Dry Port was contacted to obtain the relevant documents regarding the bill of entry. The attested copies of the various documents were produced by the authorities which are listed in the challan and it was found that bill of entry has been tampered with by the officials. Akhtar Javaid Assistant Collector Customs of Sambrial Dry Port produced the original bills of entry dated 4-6-1994 which was found tampered with and also showed that an amount of Rs,15,01,108 was deposited in the National Bank of Pakistan Sambrial Dry Port booth. It also showed about the deposit of Rs,22,27,382 while Custom Cash No,108. All these deposits are dated 19-6-1994 as per the bank stamps. The allegations against the respondent is that the documents produced by the respondent were found false which were manouvred in order to save the skin of the Customs Authorities and the imports and the fraud has been committed by causing a loss to the public exchequer of an amount of Rs,22,27,382. Challan was submitted after the completion of the investigation iii the Court of learned Customs Judge. Respondent moved an application under section 265-K, Cr.P.C. which was decided through the impugned order and the respondent was acquitted from the charge finding that there was no likelihood of the conviction of the respondent in the criminal case in hand. This appeal has been directed against the said order.
3. Preliminary objection has been raised by the learned counsel for the respondent that there is no proper appeal before this Court inasmuch as the learned Advocate who has filed the appeal was not competent to do so and under section 185-F any person including the Federal Government aggrieved by the order can file an appeal in this Court. It is contended that the Federal Government had not authorised the learned counsel or the appellant to file an appeal as according to the learned counsel for the respondent under section 185-G of Law Officer appointed under the Ordinance is only competent to conduct the proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government. He contended that the Law Officer has not filed the appeal as Mr. Zahid Farani who originally filed an appeal was not appointed as Law Officer. The Deputy Director and Director Intelligence were not competent to file appeal. In such circumstances, direction has been issued by the Customs General Order, 1984 that before filing the appeal against the acquittal, the Department has to consult with the Law Department and only then the appeal can be filed. Also relied upon S.R.O. 388-(1)82 dated 22-4-1982 that the Director was not entitled to file appeals in case under Customs Act as well. On merits learned counsel for respondent has contended that the respondent has signed by performing his duties and duty of the appellant was not to physically veiify the items as it had already been verified by the appraiser, thus the other officials had not committed any offence. Copies of the statements supplied to the respondent recorded by the Investigating Officer do not find mention the name of the respondent as one of the accused. It is a case of no evidence and the learned trial Judge has rightly acquitted the appellant on this ground hence appeal is liable to be dismissed on merits as well.
4. Learned counsel for the appellant has supported this appeal on merits that there is sufficient evidence to connect the respondent with the commission of the crime.
5. I have heard the learned counsel for the parties and also perused the record. Before I proceed further it will be proper to take notice of the preliminary objection of respondent that the appeal was not filed by a competent person and it is liable to be dismissed. Mr. Zahid Farani learned Advocate has filed this appeal and the power of attorney shows that he was authorized to file the appeal by the Deputy Director Intelligence and Investigation (Customs and Excise).
6. Mr. Khan Muhammad Virk learned Advocate who has appeared on behalf of the respondent has also filed power of attorney and has argued on behalf of the appellant. To resolve this issue it will be necessary to reproduce section 185-F of the Customs Act and subsection (2) of section 185-G which are reproduced hereunder:-- "185-F. Appeal to Special Appellate Court-1(1) Any person, including the Federal Government aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 may subject to the provisions of Chapters 31 and 32 of the Code, within 60 days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code." Subsection (2) of section 185-G: "A Law Officer appointed under the Central Law Officers Ordinance, 1970 shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings so required by the Federal Government."
The main contention of the learned counsel for the respondent is that appeal on behalf of the Federal Government can only be filed by a Law Officer appointed under the Central Law Officers Ordinance, 1970 and only he is competent to conduct the proceedings before a Special Appellate Court on behalf of the Federal Government. The earlier decision referred to by the learned counsel for the respondent reported in 1986 PCr.LJ 136 does not fully supports the contention of the learned counsel for the respondent in which the Court came to the conclusion that an Advocate can be nominated for the purpose of filing of appeal and unreported case cited were not found helpful to the arguments of the learned counsel for the respondent in the above said reported cases. The appeal in hand has been filed by the Deputy Director and it seems there has been wrongly mentioned in the captioned of the appeal Federal Government. Now the question is whether Deputy Director Intelligence was competent to file appeal or not From the bare perusal of section 185-F, any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 may subject to the provisions of Chapters 31 and 32 of the Code within 60 days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court and to settle this issue it will be relevant to reproduce section 417 of the Criminal Procedure Code which provides filing of appeal against acquittal. Amendment has been made in section 417 of Criminal Procedure Code regarding filing of the appeal against acquittal order, by Act 20 of 1994 dated 14-11-1994 and subsection (2-A) has been added which makes it clear that a person aggrieved by the order of acquittal passed by any Court other than a High Court, may within thirty days, file an appeal against such order. The appeal which is filed under section 185-F of the Customs Act is to be read with subsection (2A) of section 417 of the Criminal Procedure Code and subsection (2-A) provides that any person aggrieved by the order of acquittal can file an appeal hence it is not necessary that appeal can only be filed by the Federal or Provincial Government. It can be filed by any aggrieved person and in the case in hand Director Intelligence and Investigation (Customs and Excise) is aggrieved person who had got registered a case against the accused. He was competent to file appeal the accused is acquitted, due to the induction of subsection (2-A) in section 417, Cr.P.C. which has to be read as section 185-F of Customs Act is subject to the provisions of Chapters 31 and 32 of the Criminal Procedure Code. The other contention raised by the learned counsel for the respondent that the Customs General Order, 1984 issued on 22nd of January 1984 provides that before filing of the appeal the Law Division will have to be consulted, and that S.R.O.
No,388(I)82 dated 22-4-1982 provides that Deputy Director Intelligence and Investigation (Customs and Excise) has no power, to file appeal, these are internal arrangements of the Department which cannot prevail over the provisions of basic law as is held in PLD 1999 Lahore 109. The rules framed by the executive authorities cannot prevail over the basic law hence preliminary objection raised by the learned counsel for the respondent is not sustainable and I hold that the appeal has been filed by the Deputy Director Intelligence and Investigation who is authorised to do so under section 417 subsection (2-A), Cr.P.C. The other contention that only Law Officer can file appeal it is not clear in this case as the appeal has not been filed by Federal Government.
7. As far as merits of the case are concerned, the respondent admittedly was posted as Assistant Collector Customs ' at Sambrial at the time of release of the consignment from the dry port. He admittedly. had signed the bills of entries and had allowed the release of the goods and thereby deprived the public exchequer of an amount of Rs,22,27,382 through miscalculation of the consignment and the respondent being as Assistant Collector was the highest authority at the time of appraiser of the goods which were found in excess than the examined goods so calculated by the Customs authorities and prima facie was responsible for the commission of the offence by the Customs Authority in ,connivance with the importers. The other allegation against him as mentioned in the challan is that he tried to mislead the Intelligence Officials when the fraud by the importers through submitting bill of entry contrary to the items in the container after allowing of the Customs Officials including the importers for the release of the goods was detected by giving a wrong certificate with tampered bill of entries to show deposit of the customs duty. In such circumstances when the respondent himself admits the consignment of the bills of entries and was responsible officer posted at Sambrial at the time of the release of the goods, the prosecution evidence prima facie is sufficient to connect the respondent with the commission of the crime. The argument of the learned counsel for the respondent that the statements recorded under section 161, Cr.P.C. do not find mention the name of the respondent was not sufficient for his acquittal by the learned trial Judge in the case as under section 265-F of the Criminal Procedure Code the Public Prosecutor can request the Court for the recording of the statement of any person acqainted with the facts of the case. The name of the respondent is mentioned alongwith his role which is supported by the oral as well as the documentary evidence. The trial Court has wrongly given importance to the concession made by the then Public Prosecutor by not opposing the certain grounds of the application. The Court is bound to decide the case on merits by the perusal of the record and orders cannot be passed on the concessional statements made by the Public Prosecutor. Order of acquittal passed by the learned trial Court is illegal and unlawful which is set aside by accepting this appeal and case is remanded for decision on merits after trial.
8. Before parting from this judgment I am constrained to say that this is very sad that the occurrence in this case had taken place in the year 1994 and due to the acquittal of the respondent the record of this case remained attached with this appeal which was filed in 1995. The pendency of this appeal has not only benefited the respondent but also has benefited the co- accused. All of them were involved in a heinous criminal offence. The case was liable to be decided on merits which could not be decided due to the above said reason even to the extent of the remaining accused. I, therefore, direct the learned trial Court to conclude the trial of this case within 4 months. Office is directed to immediately send back the record of this case to the learned trial Court.