323/2014 Cr.Misc. M. WAQAR MANNOO S/O M SADIQ MANNOO (Appellant) V/S FED OF PAK THROUGH MINISTRY OF COMMERCE & ORS (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar
Order Date: 04-JUN-18
(a) Imports and Exports (Control) Act (XXXIX of 1950)--- ----Ss. 3, 5-A(8), 5-B(1)(2)(7)---Export (Quality Control) Order, 1973, S.4(a)(b)---Criminal Procedure Code (V of 1898), Ss.265-K & 561-A---Quashing of complaint, application for---Application under S. 265-K read with S. 561-A, Cr.P.C., filed by applicant/exporter for quashing of complaint was dismissal by Special Commercial Court---Complaint was received from a foreign buyer that applicant/exporter, despite having received advance payments, had neither delivered the goods nor refunded the amount---Respondent/Trade and Development Authority (Authority), lodged a complaint to the Special Commercial Authority through Assistant Director for contravention of S.4(a)(b) of Exports (Quality Control) Order, 1973---Applicant/exporter, had challenged the authority of said Assistant Director to lodge such a complaint only on the sole ground that it was filed without proper authorization in terms of S.5-B(1)(2) of the Imports and Exports (Control) Act, 1950---Trial Court dismissed the application which had been impugned in the application---Said authorization was not filed, when detailed parawise comments/reply to application of exporter was filed---Same was only an irregularity which should have been taken care of by obtaining even a fresh authorization, as soon as objection was raised, or authorization should have been placed on record, but that had not been done by the Authority---Conduct of Authority, in pursuing the complaint was that, the element of corruption in the office of Authority could not be ruled out---Grievance of foreign buyer against the applicant/exporter was still intact, since it had not been decided on merits by the Commercial Court, nor dropped by Trade Development Authority, who was under statutory obligation to ensure protection to the foreign buyer from any hardship, cheating and fraud on the part of the exporters in Pakistan---Commercial Court under the scheme of prosecution under Imports and Exports (Control) Act, 1950, was the Court of Session and proceedings were to be governed by Criminal Procedure Code, 1898---Complaint filed by the foreign buyer with the Authority on which enquiry was conducted, had assumed the status of FIR---Applicant/exporter as a result of enquiry was prima facie charged with the offence triable by the Sessions Court---Statutory duty was of the Authority to pursue the case diligently to the logical end---Status of Assistant Director was that of Investigating Officer, who after inquiry had to file challan in the Commercial Court to be prosecuted by the Public Prosecutor---Wilful and mala fide failure of Assistant Director in not filing the basic document of his authorization, had adversely affected the case of foreign buyer as the protection given to the foreign buyer, was taken away---Act of prosecutor could not prejudice the case of an aggrieved party in absence of notice to him---Foreign buyer, should have also been taken into confidence and fully informed about steps taken by the Authority---Buyer was actual the sufferer---Authority was directed to file fresh complaint within 15 days from the date of receiving present order under intimation to the foreign buyer. (b) Constitution of Pakistan--- ----Art. 10-A---Right to fair trial---Scope---Guarantee of a fair trial and due process in terms of Art. 10-A of the Constitution was not limited to the person facing proceedings of civil nature or criminal charge, but was equally extended to complainant party.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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