MR. JUSTICE FAIZ MUHAMMAD QURESHI.-(1). Applicant Muhammad Afzal son of Muhammad Ahsan is seeking relief under section 561-A, Cr. P.C. To quash the criminal proceedings initiated against him under F.I.R./Crime No. REG. SRZ/12923/86, dated 3.3.2000 under section 32 of the Customs Act, 1969, punishable under clause (14) read with clauses (77), (81) and (82) of section 156(1) of the Customs Act, 1969, pending before Special Judge, Customs and Taxation at Karachi and has further prayed that the applicant be set at liberty.
2. Brief facts of the case are that the applicant is running a business under the name and style of M/s. Zahra Industries (Pvt.) Limited having Office/Factory on Plot No. 46, Block 7, Federal "B" Area, Karachi.
3. On 3.2.2000, complainant Abdul Samad Siddiqui, Principal Appraiser, Collectorate of Customs (Exports), Custom House, Karachi, lodged the F.I.R, which reads as follows.- "A credible information was provided to this Collectorate by Special Monitoring Team Headquarters Artillery 5 Corps that Zahra Industries (Pvt.) Limited (Exporters), Street 46, Block 7, F.B. Area, Karachi with the connivance of Customs Staff of Collectorate of Customs (Exports) has succeeded in obtaining issuance of cheques amounting to Rs. 36,54,731 on account of rebate claims filed by them in the year 1986. Duplicate of which were again filed in the year 1993. The subject rebate claims were not sanctioned during 1995 by the then competent Customs Authorities of the Collectorate as the same were not permissible to the exporters in terms of the conditions as laid down in C.B.R. C. No. 3(95)-SS(Cr)/78, dated 9th February, 1980. Prima facie, there seems to be a racket involved in the instant matter aiming to draw duty drawback through unlawful means and with the connivance of Customs Staff causing loss to the national exchequer. Preliminary inquiry conducted by this Collectorate has confirmed the narrated aspect. The accused persons are not being nominated at this stage as the identification (sic). Liability and role of all persons involved in this racket requires thorough investigation. An investigation in the matter is being launched for the identification of partners in crime/finance beneficiaries. F.I.R, is lodged accordingly, investigation is in progress."
4. It has been stated by the learned counsel for the applicant as well as learned counsel for the respondent that interim challan has been submitted before the Court of Special Judge, Customs Taxation and Anti-Smuggling, Karachi. On query, the learned counsel for the applicant has placed before this Court the bail order passed by Court of Special Judge, Customs Taxation, Karachi and the present applicant Muhammad Afzal is on bail.
5. Mr. Khawaja Shamsul Islam, learned counsel for the applicant has enthusiastically argued that F.I.R. No. REG: SR2/12923/86, dated 3.3.2000 is liable to be quashed as it is a case of double jeopardy and according to him the contents of F.I.R, and the judgment passed in Constitutional Petition No. D- 1209 of 1988 (M/s. Zahra Industries Limited through Managing Director v. Government of Pakistan, Central Board of Revenue through Additional Secretary, reported in 1993 CLC 1659) are same and the bone of contention as raised by the complainant in F.I.R. No. REG: SR2/12923/86, dated 3.3.2000 and the Constitutional petition decided by a Division Bench of this Court is same; he has further argued that the appl^ant, in this way is being punished twice, when this issue has already been thrashed out by a Division Bench of this Court and the matter has been reported in 1993 CLC 1659; learned counsel for the applicant has further argued that the applicant cannot be subjected to double punishment.. In support of his contention, Mr. Khawaja Shamsul Islam, learned counsel for the applicant has referred Article 13(1) of the Constitution of Islamic Republic of Pakistan (1973), section 403, Cr. P.C. And section 26 of General Clauses Act; he has also referred so many documents annexed with the present criminal miscellaneous application he has drawn my attention on those documents and has also drawn my attention on section 32 of the Customs Act.
He has argued that it is a case of civil liability and the coercive methods are being adopted by respondent by launching criminal proceedings in the shape of F.I.R. No. REG: SR2/12923/86, dated 3.3.2000; no offence is made out; no show-cause notice under section 32 of Customs Act was issued by respondent to the applicant he has referred the documents in this regard at page 141 Annexure "H/21" and page 145 Annexure "H/23". According to Mr. Khawaja Shamsul Islam, the sections defined in the F.I.R, are not applicable and the conditions have not been complied with; he has also referred the document at page 93 Annexure "H", wherein the conditions are mentioned. He has also referred the documents at pages 97, 99, 103 being Annexures "H-l", "H-2" and "H-4" and at page 135 Annexure "H-20"; he also referred so many documents. He has submitted that the suit for damages was also filed by the applicant on 2.3.2000 against the respondent. He has further argued that this Court has got inherent powers under section 561- A, Cr. P.C. To quash F.I.R. No. REG: SR2/12923/86, dated 3.3.2000 and to save the applicant from double torture, agony and harassm ent at the hands of respondent. Mr. Khawaja Shamsul Islam, learned counsel for the applicant has argued that he needs not to move application under section 265-K, Cr. P.C. Before the trial Court and has moved this application under section 561-A, Cr. P.C. Straightaway before his Court and has invoked the inherent jurisdiction of this Court. In this regard he has placed reliance on PLD 1992 SC 353; 2000 SCMR 122; 1985 SCMR 257; 1993 SCMR 187-189, 1998 SCMR 873-880 and 1997 SCMR 1503 + 1507.
6. On the other hand Mr. Shaiq Usma ni, learned counsel for the respondent, at the very outset, put forward a very fair proposal that the trial Court be directed to conclude the trial within two months and if the same is not concluded the trial Court be directed to assign the reasons as to why the trial has not been concluded within two months but the said proposal was not accepted by the learned counsel for applicant.
7. Mr. Shaiq Usmani, learned counsel for applicant has submitted in nutshell the facts and background of the case that is not a case of civil liability; it is not a case of double jeopardy and during the investigation it was found that somewhere there is a wrong and he referred sections 26 and 105-A of the Customs Act and he has also read section 561-A, Cr. P.C. Mr. Shaiq Usmani, learned counsel for the respondent has argued that on 2.3.2000 the suit for damages was filed before this Court by the applicant; since the challan has been submitted before the Court of Special Judge, Customs Taxation and Anti-Smuggling, Karachi, the present applicant, firstly, should approach the trial Court under section 265-K, Cr. P.C. Mr. Shaiq Usmani, learned counsel for the respondent has also placed reliance on 2000 SCMR 122-124 and PLD 1992 SC 353-361.
8. Mr. Shaiq Usmani, learned counsel for the respondent, while citing the case of Mi raj Khan v. Gul Ahmed and others reported in 2000 SCMR 122, relevant page at 124, has argued that in the aforementioned authority, the F.I.R, has been quashed whereas in the instant case the proceedings are pending trial before the Special Judg, Customs, Taxation and Anti-Smuggling, Karachi, as the challan has been submitted and according to Mr. Shaiq Usmani the main consideration to be kept in view would whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of law or not. He has also cited the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 553-56 wherein the Honourable Supreme Court held that whether the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special inherent jurisdiction "the writ jurisdiction under Article 199 of the Constitution is one of them." The basic rule was laid down by this Court in well- known case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and it was ruled that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of trial found guilty they have a right to be declared as "honourably acquitted by competent Court". On the other hand, if the evidence against the accused discloses a prima facie case then "justice clearly requires that the trial should proceed according to law". According to Mr. Shaiq Usmani, learned counsel for the respondent, the power given by section 561-A, Cr. P.C. Can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the Procedural Statute. According to him, in both cases, the present applicant should approach the trial Court for redressing his grievance. While arguing the case, Mr. Shaiq Usmani, learned counsel for the respondent has invited my attention on the case of M/s. Zahra Industries Ltd. Through Managing Director v. Government of Pakistan Central Board of Revenue through Additional Secretary reported in 1993 CLC 1659 which was cited by learned counsel for applicant; the learned counsel for the respondent has submitted that a Division Bench of this Court has accepted the Constitution petition and declared the impugned order to have been passed without lawful authority and to be of no legal effect and called upon Assistant Collector of Customs (Export Rebate), Karachi to pass fresh order on the application of the petitioners in accordance with law and, therefore, nowhere the case becomes a case to double jeopardy in the light of CL. 124 Vol. XXI, P.T.C.L., 200S (Case Laws) decision of a Division Bench of this Court, reported in 1993 CLC 1659.
9. Finally, Mr. Shaiq Usmani, learned counsel for the respondent has contended that Criminal Miscellaneous Application No. 126 of 2000, under section 561-A, Cr. P.C. Is not maintainable and is liable to be dismissed.
10. Mr. Ziauddin Nasir, learned Standing Counsel for the State has placed before this Court an unreported case, namely C.P. No. 1627 of 1999 decided by this Court on 21.5.1998, wherein it has been held that "It appears that the petitioner alongwith other co-accused have been challaned before the learned Special Judge (Customs and Taxation) to face trial under section 156(1)(14)(77)
(81)(82) of Customs Act and other provisions of Sales Tax Act. The prosecution, at this stage cannot be throttled from proceedings against the accused. Admittedly, there are serious allegations of defraudment of the taxes against the accused. In rebuttal, Mr. Khawaja Shamsul Islam, learned counsel for applicant has drawn my attention on Annexure "F" at page 87 and has also referred sections 211 and 185 of the Customs Act and further placed reliance on PLD 1980 Kar. 49, PLD 1999 Kar. 121, PLD 1997 Lah. 633 and 1999 SCMR 654.
11. I have heard Mr. Khawaja Shamsul Islam, learned counsel for applicant, Mr. Shaiq Usmani, learned counsel for the respondent and Mr. Syed Ziauddin Nasir, learned Standing Counsel and with their assistance have gone through the material available on record and documents annexed thereto.
12. Learned counsel for applicant, Mr. Khawaja Shamsul Islam has made relentless efforts to persuade me to invoke the jurisdiction of this Court under section 561-A, Cr. P.C. When the applicant has another remedy available with him. Learned counsel for applicant has attempted to invoke the inherent jurisdiction under section 561-A, Cr. P.C. As alternative or an additional jurisdiction.
Admittedly, no ground for quashing the proceedings and inherent jurisdiction under section 561-A, Cr. P.C. Can be exercised as an alternative or an additional jurisdiction. In the instant case, the present applicant has got alternate remedy available before the trial Court in the wake of the challan submitted by the concerned Authority. Learned counsel for applicant has also referred so many documents and spewed forth diatribe against the respondent; in F.I.R, it is clearly mentioned that the applicant with the connivance of the Custom's Staff of Collectorate of Customs (Export) has succeeded in obtaining issuance of cheques amounting to Rs. 36,54,731 and there are serious allegations not only against the applicant but so also against the Customs Officials and at this juncture the version of the prosecution cannot be stifled; the evidence is yet to be adduced by the prosecution before the trial Court.
13. Reference can be made on a case of Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317 wherein the Honourable Supreme Court has set aside the order of the High Court quashing the proceedings under section 561-A, Cr. P.C. And has held that no ground for quashing the proceedings- Inherent jurisdiction under section 561-A not an "alternative" or an "additional" jurisdiction-Power preserved "in the interest of justice" to redress grievances for which no other procedure is available or is provided by Code-Not to be used to divert ordinary course of criminal procedure-High Court should be extremely reluctant to interfere where charge of a prima facie case has been framed on evidence or accused summoned".
14. The same view has been taken by the Honourable Supreme Court in the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 that a "If prima facie the offence had been committed, the ordinary course of trial before the Court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court".
15. In the case of Soofi Muhammad Anwar v. Mst. Badshah Begum and 6 others 1999 SCMR 1475 wherein the Honourable Supreme Court has held that the version of the prosecution cannot be stifled at initial stage which has yet to come and the High Court by stifling the prosecution had, therefore, proceeded in haste to quash the criminal proceedings by means of the impugned order.
16. Reference can be made in a case of Mohsin Ali and another v. The State 1972 SCMR 229 wherein the Honourable Supreme Court has held that "Quashment of criminal proceedings under section 561-A, Cr. P.C.-Evidence yet to be led in support of accusation made in complaint-Proceedings not quashed under section 561-A, Cr. P.C.".
17. Reference can be made in the case of Marghoob Allah and another v. Shams Din and another 1986 SCMR 303 wherein the Honourable Supreme Court has held that "Powers under section 561-A, Cr. P.C. For quashing of proceedings, were intended to prevent abuse of process of Court but not to stifle prosecution".
18. Reference can be made of a case of Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839-840 wherein the Honourable Supreme Court has held that "Normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A, should not be lightly made, as the same would tend to circumvent the due process of law and reference has been made in the case of Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317.
19. Reference can be made in the case of Muhammad Shafiq and 2 others v. Merajuddin and another 1987 MLD 1518, wherein this Court has held that "Jurisdiction under section 561- A, Cr. P.C.
And section 249-A, Cr. P.C. Neither alternate nor additional-Application under section 249-A, Cr. P.C.
Not moved in lower Court before coming to High Court under section 561- A, Cr. P.C.-Petition dismissed being premature".
20. Further, reference can be made in the case of Khawaja Faisal Karim v. State and others PLD 1996 SC 461-462 wherein the Honourable Supreme Court has held that "Inherent jurisdiction of High Court under section 561-A, Cr. P.C.- Neither alternative nor additional-To be rarely invoked only in the interest of justice for redress of grievance having no other procedure for redress-Provisions of section 561-A, Cr. P.C. Not to be used to obstruct or divert the ordinary course of criminal procedure".
21. Learned counsel for applicant in full enthusiasm and excitement has referred PLD 1992 SC 353, which rather goes against him and the same authority has been cited by Mr. Shaiq Usmani, learned counsel for the respondent. Although the learned counsel for applicant has marshaled a welter of arguments for two days but he has not spoken on the fulcrum of the case and miserably failed to convince the Court as to why he has not approached the trial Court under section 265-K, Cr. P.C. And; why the version of the prosecution be stifled at this juncture when there are serious allegations of defraudment against the applicant and so also against the Custom Officials. There is a set of jargon against the respondent by the applicant and so also there is a set of jargon for applicant by the respondent and all these things are to be thrashed out at the time of trial.
22. The upshot of the above discussion is that the applicant has failed miserably to make out a case for quashment of F.I.R./Crime No. REG: SR2/12923/86, dated 3.3.2000 under section 561-A. In result the Criminal Miscellaneous Application j No. 126 of 2000 is dismissed. S 23. At this juncture, learned counsel for applicant has also prayed that the trial Court be directed to conclude the trial within two months from the date of receipt of judgment of this Court and the learned counsel for the respondent Mr. Shaiq Usmani agreed with the prayer of learned counsel for applicant.
24. The trial Court is directed to complete the trial of the applicant/accused within two months from the date of receipt of this judgment; in the event of failure, the trial Court is directed to assign the reasons and submit report before this Court. However, the applicant will be at liberty to move application under section 265-K, Cr. P.C. Before the trial Court, if and when he feels need.
25. These are the reasons of my short order, dated 19.4.2001