MR. AJMAL MIAN, C.J.--(1). By this common judgment, we intend to dispose of the above five criminal appeals which have been filed with the leave of this Court against the judgment dated 27.1.1994 of a learned Judge of the High Court of Sindh at Karachi in Criminal Miscellaneous Nos.
1195 to 1199 of 1993 allowing respondent's above miscellaneous applications under section 561-A, Cr. P.C. For quashing the proceedings pending before the Special Judge (Customs and Taxation), Karachi under section 32 of the Customs Act, 1969 (hereinafter referred to as the Act), arising out of F.I.R. No. 10(19) Dn-Inv-Misc/91/A, dated 24.2.1992 lodged by Muhammad Saleem, Principal Appraiser, Directorate of Inspection and Training (Customs, Central Excise and Sales Tax) and further F.I.Rs. Lodged.
2. The brief facts are that the above F.I.R, was lodged by aforesaid Muhammad Saleem, Principal Appraiser, on the basis of information received that nine consignments comprising 499 bales of Polyester Jacquard Fabrics and wooden glass marbles had been fraudulently shown exported to Dubai from Gawadar Port, for the purpose of obtaining customs duty drawback amounting to Rs.
2,38,26,071 and import licence fee refund of Rs. 22,93,250, total amount being Rs. 2,61,19,321. The above amount is reflected in one interim challan while different amounts have been shown in other interim challans. In the above F.I.R., it was stated that accused Imtiaz Ali Taj, Haroon Rasheed and Abdul Majeed Askani in collusion with the concerned staff of Gawadar Customs House and Quetta Customs House managed to show fraudulent export and received export rebate claim and export licence fee through one firm, namely, Charly Enterprises. It was further alleged that the accused managed to file various export shipping bills showing the export of goods to M/s. Sangeeta Traders, Dubai UAE. Accused Abdul Majeed Askani acted as Customs Clearing Agent, Gawadar for shipment of the goods, whereas accused Imtiaz Ali Taj, Haroon Rasheed and some Others were shown as exporters on the strength of shipping bills, prepared by Haroon Rasheed and his employee Imtiaz Ali Taj. Applications for export rebate claim were prepared and submitted to the Collectorate of Customs, Quetta, where the respondent at the relevant time was serving as Collector of Customs. It was further alleged that the aforesaid applications for claim of custom duty drawback and refund of the licence fee were processed and sanctioned by the Customs Officer without proper scrutiny and the checking of authenticity of the documents and because of lack of proper information necessary to be checked prior to sanction, the exports with the active connivance of the Customs Official succeeded in receiving huge amount of customs duty drawback and import licence fee refund. It seems that till the submission of interim charge-sheets on 9.3.1993 the name of the respondent was not mentioned as an accused, but on 10.11.1992 when final charge-sheets were submitted he was shown as accused No. 1. Thereupon, the respondent filed the aforesaid criminal miscellaneous applications under section 561-A, Cr. P.C. Which were allowed inter alia on the grounds:-
(i) That under subsection (2) of section 185-A of the Act the Special Judge had to proceed with the trial of accused, but such jurisdiction is subject to his having received report under clause (a) of subsection (1) thereof and in no other case.
(ii) That the respondent could not be tried for offence under section 32 of the Customs Act because that section pertains to trial of the exporters or importers who have made either misdeclaration or misrepresentation.
(iii) That section 217 of the Act protects actions taken by certain officers/public servants.
(iv) That till the interim challans Were submitted on 9.3.1992 there was no evidence with prosecution to include respondent's name in the column of accused, and that it was long thereafter when statements of P.Ws. S. Abdul Hameed and M.W. Warsi were recorded after more than six months of the F.I.R, that the respondent was shown in the final challan as accused No. 1; and
(v) That the Investigating Officer acted mala fidely.
After having concluded as above the following order was passed by the learned Judge in Chamber "In appropriate cases, this Court can exercise jurisdiction under section 561-A, Cr. P.C. As the powers of this Court are coextensive with powers of trial Courts under section 265-K or 249-A of Cr. P.C.
Case of applicant is one of such cases, where, instead of directing him to approach the trial Court for his acquittal, jurisdiction under section 561-A, Cr. P.C. Can be exercised if it appears that continuance of proceedings would amount to abuse of process of Court:- As a result of above discussion, I am of the considered view that continuance of proceedings against the applicant would be abuse of process of Court. The applications are allowed and proceedings pending against him in the Court of Special Judge (Customs and Taxation), Karachi are hereby quashed. The applicant is on bail is discharged of his bail bonds. Before parting with this judgment, I must record a note of appreciation for the learned Advocates, whose assistance, enabled me to arrive at the above conclusion." Against the above judgment petitions for leave to appeal were filed in which leave was granted inter alia to consider the following points:-
(i) Whether in view of Notification No. S.R.O. 95(I)/83 dated 12.2.1983, issued under section 3 of the Act, Muhammad Saleem, Principal Appraiser, was an officer of the Customs and authorised to lodge the F.I.R.?
(ii) That even if the F.I.Rs. Were defective, the same would not vitiate the trial once cognizance in respect of alleged offence has been taken by the Special Judge properly.
(iii) That the ordinary course of trial would not have been deflected through filing of above miscellaneous applications.
3. At the leave stage the respondent had appeared in person and contended that in view of S.R.O.
No. 723(I)/84 Muhammad Saleem was not an Authorised Officer or competent authority to file F.I.R.
4. The above appeals were fixed today for hearing. As the respondent has to appear in person a notice at his Islamabad address given by him inter alia before the High Court in the title of the above miscellaneous applications was sent, but the same has been returned undelivered with the following remarks:- Muhammad Nawaz son of Kh. Ghulam Sadiq, Resident of House No. 33, Street No. 38, F-6/1, Islamabad.
Since there is no other address supplied by the respondent on. Which he can be served with the notice and as it was his obligation to have furnished the proper address, we hold that service of the notice is deemed to have been validly effected.
5. In support of the above appeal Mr. Fakhruddin G. Ebrahim, learned Counsel for the appellant has invited our attention to section 185-A of the Act and contended that in terms of above provision the learned Special Judge (Customs and Taxation), Karachi had taken cognizance of the cases competently and, therefore, the impugned judgment is not sustainable. It will be advantageous to reproduce above section 185-A of the Act, which reads as follows:- " 185-/4.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force, a Special Judge may, within the limits of his jurisdiction, take cognizance of any offence punishable under this Act-
(a) upon a report in writing made by an officer of customs or by an officer-in-charge of a police station or by any other officer especially authorised in this behalf by the Federal Government; or
(b) upon receiving a complaint or information of facts constituting such offence made or communicated by any person; or
(c) upon his own knowledge acquired during any proceeding before him under this Act or under the Prevention of Smuggling Act, 1977.
(2) Upon the receipt of report under clause (a) of subsection (1), the Special Judge shall proceed with the trial of the accused.
(3) Upon the receipt of a complaint or information under clause (b), or acquired in the manner referred to in clause (c) of subsection (1), the Special Judge may, before issuing a summons or warrant for appearance of the persons complained against, hold a preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint, or direct any Magistrate or any officer of customs or any police officer to hold such inquiry and submit a report, and such Magistrate or Officer shall conduct such inquiry and make report accordingly.
(4) If, after conducting such inquiry or after considering the report of such Magistrate or Officer, the Special Judge is of the opinion that-
(a) there is no sufficient ground for proceeding, he may dismiss the complaint, or
(b) there is sufficient ground for proceeding, he may proceed against the person complained against in accordance with law.
(5) A Special Judge or a Magistrate or an Officer holding inquiry under subsection (3) may hold such inquiry, as nearly as possible, in accordance with the provisions of section 202 of the Code of Criminal Procedure, 1898."
6. A perusal of the above-quoted section of the Act indicates that by virtue of subsection (1) thereof a Special Judge is competent to take cognizance of any offence punishable under the Act:-
(a) upon a report in writing made by an officer of customs,
(b) upon receiving a complaint or information of facts constituting such offence made or communicated by any person, or
(c) upon his own knowledge acquired during any proceeding before him under the Act or under the Prevention of Smuggling Act, 1977.
Whereas under subsection (2) it has been laid down that upon the receipt of report under clause
(a) of subsection (1), the Special Judge shall proceed with the trial of the accused. It may further be observed that under section (3) it has been provided that upon the receipt of a complaint or information under clause (b) or acquired in the manner referred to in clause (c) of subsection (1), the Special Judge may, before issuing a summons or warrant for appearance of the person complained against, hold a preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint, or direct any Magistrate or any Officer of customs or any police officer to hold such inquiry and submit a report, and such Magistrate or Officer shall conduct such inquiry and make report accordingly.
7. It may also be noted that under subsection (4) of section 185-A of the Act if, after conducting such inquiry referred to in subsection (3) or receipt of report of such Magistrate or Officer referred to in subsection (3) the Special Judge may dismiss the complaint or may proceed with the matter.
Whereas subsection (5) of the above quoted section makes the provisions of section 202 of the Code of Criminal Procedure applicable for the purpose of holding an inquiry in terms of subsection
(3) thereof.
8. Mr. Fakhruddin G. Ebrahim has also invited our attention to S.R.O. (I)/83 dated 12.2.1983 issued in exercise of power conferred by section 3 of the Act and in supersession of the notification on the subject issued under the aforesaid section, whereby the Central Board of Revenue was pleased to appoint inter alia :- "(2) The Deputy Collectors, Assistant Collectors, Principal Appraisers, Appraisers, Superintendents, Deputy Superintendents, Inspectors of Preventive Service and Preventive Officers, Examiners, Inspectors and officers of Ministerial Department, in the respective Customs House and the Collectorate, to be officers of Customs for those areas." On the basis of above notification it was urged by him that the Principal Appraiser is an officer of the customs in terms of clause (a) of subsection (1) of above quoted section 185-A. His further submission was that the learned Special Judge was competent to take cognizance even on receipt of complaint or information of facts constituting the offence made or communicated by any person in view of clause (b) of subsection
(1) of section 185-A and therefore, even if it is to be assumed that Muhammad Saleem was not an officer of customs in terms of above clause (a) of sub section (1) of the above section, the cognizance could have been competently taken by the learned Special Judge by treating the above F.I.R, as information in terms of above clause (b) of subsection (1) of the above section.
We may now refer to S.R.O. No. 723(I)/84 dated 19.8.1984 relied upon by the respondent at the leave granting stage which reads as follows:- "Notification No. S.R.O. 723(I)/84, dated 19th August, 1984.-In exercise of the powers conferred by sections 3 and 4 of the Customs Act, 1969 (IV of 1969), and in supersession of its Notification No. S.R.O. 97(I)/83, dated 12th February, 1983, the Central Board of Revenue is pleased to authorise the officers of the Directorate of Inspection (Customs and Central Excise), specified in column (2) of the Table below to exercise the powers and discharge the duties of the officers of Customs under the provisions of the said Act specified in column (3) of the said table:- No. Officers Provisions Of the Customs Act, 1969
1. Director , Deputy Director and Assistant DirectorSections 26, 91, 92, 161, . 162, 163, 165, 166, 167, 168(1), (3), (4), 171, 174, 198 and 199.
2. Principal Survey Of ficer. All sections mentioned. At Serial No., 1 except section 163.
3. Survey Of ficer. All sections mentioned at S. No. 1 except sections 26 and 163."
9. It may be observed that even if we were to ignore the above S.R.O. 95(I)/83 dated 12.2.1983 the fact remains that by virtue of clause (b) of subsection (1) of section 185-A, the learned Special Judge could have taken cognizance as the above complaint could have been treated as an information.
10. Then it was contended by Mr. Fakhruddin G. Ebrahim that once the cognizance was taken by a competent Court any irregularity prior to the taking of cognizance would not vitiate the proceedings. In support of above contention, he has relied upon cases of Noorul Islam v. The State (1986 SCM R 1836), State through Director-General, Pakistan Coast Guards, Turbat v. Sabro and another (1992 PCr.LJ 1795) and Zubair Alias Nana v. The State (1992 PCr.LJ 2127). In the first case this Court while declining the petition for leave to appeal in a case arising out of Prohibition (Enforcement of Hadd) Order (4 of 1979) held that illegality committed in course of investigation could not affect competence and jurisdiction of the Court. In the above case the offence was investigated by a police officer who was not a designated officer for the purpose of Article 21(b) of the aforesaid Order, but it was held that the above irregularity did not vitiate the trial. In the second case Munawar Ahmed Mirza, Chief Justice of the High Court of Balochistan (as his Lordship then was) held that lodging of an F.I.R, with the Special Court Customs by the Commandant of Battalion instead of Authorised Officer would not vitiate the trial. In the above third case it was urged that the police had no power to investigate the offence under the Prohibition (Enforcement of Hadd) Order (4 of 1979), but the above contention was repelled and the bail was refused by the learned Single Judge of the High Court of Sindh.
11. The above judgments support Mr. Fakhruddin G. Ebrahim's above contention.
12. As regards the merits of the case, Mr. Fakhruddin G. Ebrahim has invited our attention to the order dated 27.5.1993 passed by the same learned Judge rejecting the respondent's bail application by observing inter alia as under:- "Applicant was a Collector of Customs at Quetta at the relevant time when the claim for refund of customs duty and the sales tax commonly known as duty drawback were filed. He was put on guard through letter dated 2.1.1992 and was specifically requested that no rebate should be sanctioned to M/s. Cocerl Export House till the matter was finalised. In spite of such letter having duly been received by the applicant on 6.1.1992, he sanctioned the claim of the exporters and released 80% of such claim resulting into a very huge loss to the Government exchequer. But for the hasty action of the applicant, such loss could not have been caused. This circumstance alone would disentitle the applicant to grant of bail irrespective of the fact that the offence with which he is charged is punishable to imprisonment for three years, lt would be presumed under the circumstances that he was in collaboration with the main accused for whom the allegation is that no export was made at all from Gawadar Port and yet huge amount of duty drawback claimed was sanctioned to them." We would not like to comment on the merits of the above observation nor we would like to pre-empt the jurisdiction of the learned Special Judge (Customs and Taxation) on the other points found favour with the learned Judge in Chamber, as we are inclined to hold that it was not a fit case in which the learned Judge in Chamber should have invoked inherent jurisdiction of the High Court under section 561-A, Cr. P.C. Directly even before the prosecution produced its evidence. The case involved defraudation of Crores of rupees of public money. It was a fit case in which the prosecution should have been given full opportunity to produce its evidence before any conclusion could have been recorded. We, therefore, allow the above appeals, set aside the judgment under appeal and remand the case to the learned Special Judge (Customs and Taxation), Karachi with the direction to proceed in the matter from the stage at which it had stopped.