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Criminal Revision No. 2 of 1985, decided on 21^st April, 1985.

‑‑‑Ss. 185‑F & 156(1)(77)‑‑Criminal Procedure Code (V of 1898), S.265‑K‑‑Revision (Criminal)‑‑Quashing of proceedings‑‑Facts alleged by prosecution attracting offence under S. 156(1)(77), Customs Act and trial Court postponing final orders on application under S.265‑K, Cr.P.C. till examination of some material prosecution witnesses to sort out issue‑‑Mere fact that name of applicant not mentioned in statements of witnesses recorded under S. 161, Cr.P.C. but instead name of firm of which applicant was allegedly proprietor, found mention, held, of no avail in circumstances‑‑Revision declined.

Moula Bux and others v. The State 1977 S C M R 292 and Raja Haq Nawaz v. The State P L D 1967 S C 354 ref.

S. Sami Ahmed for Applicants.

This revision application is filed under section 185‑F of the Customs Act, 1969 impugning thereunder order, dated 11‑3‑1985 passed by learned Special Judge (Customs and Taxation), Karachi, whereby he has deferred passing final orders of application under section 265‑K, Cr.P.C. and framing the charge under section 156(1)(77) of the Customs Act, 1969. An abjection was raised that the trial Court was not competent to try the case under the provision of law quoted above for the reason that the relevant facts on which the prosecution based its case, at the most made out a case of evasion of payment of income‑tax in terms of section 50(5) of the Income‑tax Ordinance, 1979. It is further submitted that according to the prosecution a forged certificate of Income‑tax was used alongwith bills of entry by applicant Syed Alimuddin in the Customs Income‑tax Cell on the basis of which imported goods were cleared evading payment of duty to the tune of Rs.84,550.30. This forged certificate was obtained by applicant No.2 Muhammad Rafiuddin Haider, who is Income‑tax Practitioner and provided to applicant No.l.

At the very outset of proceedings before the trial Court, application was filed under section 265‑K, Cr.P.C. on the ground that the trial Court has no jurisdiction. The trial Court passed orders on this application which is impugned herein to the effect that application was premature, hence the learned trial Judge deferred passing of final orders till some necessary evidence was adduced by the prosecution. It is further stated in the said‑ order that the objection raised by the learned counsel could be appreciated only when the prosecution is allowed to produce some evidence. It has further been observed in the impugned order that it was more necessary to have some evidence recorded for the reason that several such cases with similar facts and circumstances had been instituted.

The view taken by the trial Court is correct and this question cannot be sorted out at the very outset of the trial proceedings, till prosecution is allowed to produce evidence of some material witnesses on this particular point.

It was contended by the learned counsel for applicants that the applicants are entitled to premature acquittal on the ground that it is a case, of no evidence. It was submitted that the trial Court did not look into 161, Cr.P.C. statements of witnesses. It was further submitted that in the 161, Cr.P.C. statements of witnesses, name of applicant Syed Alimuddin is not mentioned. I have seen true copies of statements of witnesses namely Muhammad Sultan Khan, Supervisor, Circle 12 Income‑tax Office, Karachi, Afaq, Azam Siddiqui, Income‑tax Officer. Abdul Aziz, U.D.C., Customs Cash Branch, Syed Sarfraz Ahmed, Clearing and Forwarding Agent and Rasheed Mirza. In all these statements name of applicant No.l Syed Alimuddin as such is not mentioned but instead name of the firm is mentioned as Messrs Alim International, Karachi. It is the case of the prosecution that applicant Alimuddin is the Proprietor of the firm. Learned counsel for the applicants in support of his argument cited the case of Moula Bux and others v. The State 1977 S C M R 292. This reliance is misplaced for the reason that the facts of the reported case are distinguishable and there were inherent defects in the evidence of prosecution as identification parade was not held to fix the identity of the persons who escaped from the spot and further recoveries were not made from any appellants. In the instant case as stated above assertion made by the learned counsel for applicants cannot be accepted that it is a case of no evidence.

Secondly on the facts stated in F.I.R., challan and statements of witnesses it can be said that facts alleged by the prosecution do attract offence under section 156(1)(77) of the Customs Act, which contemplates offences of counterfeiting, falsification or alteration of any declaration or statement or document in the transaction of any business relating to the Customs. In any case it is too early and prosecution P must be allowed to produce some, evidence in support of the charge, stifling of criminal prosecution is not allowed and it is necessary that these cases should be examined further to ensure that the course of even‑handed justice has not been prejudiced. In this context reference can be made to the case of Raja Haq Nawaz v. The State P L D 1967 SC 354.

For the facts and reasons stated above impugned order, dated 11‑3‑1985 and framing of charge by the trial Court are hereby maintained and the revision is dismissed. Trial Court is directed to record evidence of material witnesses expeditiously within three months and then pass final orders on application under section 265‑K, Cr.P.C. which shall remain pending till then.

S.G.D. Revision petition dismissed.

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