2021 P T D 1732
[Balochistan High Court]
Before Abdullah Baloch, J
The COLLECTOR CUSTOMS, through Additional Collector Model Customs
Collectorate, Quetta and others
Versus
ABDUL ZAHIR and others
Customs Appeals Nos.5 of 2016 and 2 of 2018, decided on 23rd October, 2020.
(a) Customs Act (IV of 1969)---
----Ss.32, 156(1)(14), 156(1)(86), 156(1)(95- A), 156(1)(96) & 211--- Customs Rules, 2001,
Rr. 101 & 102---Mis -declaration ---Failure to give information regarding offence ---
Dishonestly issuing a security---Failure to maintain record ---Appreciation of evidence ---
Delayed FIR ---Scope ---Department assailed the acquittal of respondents by the Special
Judge Customs ---Alleged forgery was committed in the month of July 2008 but the FIR was
lodged with a delay of four years ---Entire case of the prosecution rested upon Goods
Declarations and E -Forms, wherein allegedly forgery and tampering was committed by the
accused in their capacity as Exporters/Clearing Agents, but the prosecution had failed to
produce the document s in the trial court in order to establish charges of forgery and
tampering ---Investigating Officer had admitted that it was the duty the Customs Authorities
to keep original documents in the office ---Non-production of relevant and essential
documents in t he trial court had rendered the entire case of prosecution as doubtful and
nothing was left to make reliance for awarding conviction and sentence to the accused ---
Prosecution had failed to establish the charge through concrete and solid evidence, which fact itself was admitted by its own witnesses ---Appeals against acquittal were dismissed, in
circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S.154---Information in cognizable cases ---Scope ---Main purpose of lodging FIR is to set
criminal law in motion and to bring on record firsthand information about the occurrence of a crime and to provide a sound basis for carrying out investigation in the right direction excluding the possibility of fabrication of any false story.
(c) Criminal Procedure Code (V of 1898) ---
----S.154---Information in cognizable cases ---Delayed FIR ---Condonation of delay--- Scope --
-Delay in lodging the FIR can only be condoned when such delay has been adequately
explained.
(d) Appeal against acquittal ---
----Once the accused is acquitted of the charge by the Court of competent jurisdiction, double
presumption of innocence is attached with such order, which cannot be reversed until and unless it is proved that the order of acquittal is perverse, fanciful, capricious or contrary to record.
Syed Ikhlaq Ahmed Shah for Appellants (in both Appeals).
Muhammad Rahim Mandokhail for Respondents (in Custom Appeal No.05 of 2016).
Mirwise Bazai for Respondent (in Custom Appeal No.05 of 2016).
Date of hearing: 16th October, 2020.
JUDGMENT
ABDULLAH BALOCH. J. ----This common judgment disposes of Custom Appeals
Nos.05 of 2016 and 02 of 2018 filed by the Collector Customs Quetta, against the judgments dated 31st March 2016 and 15th March 2018 passed by learned Special Judge Customs/Se ssions Judge Quetta ("trial Court"), whereby acquitting the accused (respondents)
namely Abdul Zahir son of Jamal -ud-Din, Sarwar son of Jalandar, Muhammad Abbas Yousaf
son of Muhammad Yousaf, Javed Iqbal son of Saif -ur-Rehman, Babar Shehzad son of
Saifulla h and Khawaja Muhammad son of Gul Baran.
2. Facts of the case are that on 14th September 2012, the Complainant Akhtar Ali,
Inspector Customs, lodged FIR No.05- Cus/Cont/DP/NLC/EXP/2012 at Custom Dry Port
NLC Quetta, under Sections 32, 192 and 21 punishable under Clauses (14), (86), (95- A) and
(96) of section 156(1) of the Customs Act, 1969 read with section 3(1) of Import and Export (Control) Act, 1950, Export Policy Order, 2008 -2009, Rule 101 punishable under rule 102 of
Customs Rules, 2001, against the ac cused (respondents) Abdul Zahir, Sarwar, Muhammad
Abbas Yousaf, Javed Iqbal, Babar Shehzad and Khawaja Muhammad, with the averments that the accused (respondents) being Exporters and Clearing Agents filed Goods Declarations (Bill of Export) through their c learing agent Messrs Frontier Enterprises, Quetta and got
cleared exported 24000 M. Tons of rice valuing US$ 1,53,00,000/ - against E -Form as
detailed in the FIR. However, the status of said E -forms was got confirmed from the
concerned Bank i.e. Sonheri Bank Ltd. Main Branch Shahra -e-Iqbal, Quetta, who vide its
letter dated 20th July 2012 has reported that Form -E appearing at S.No.1 has not been
certified by the Bank. Besides, E -Forms appearing at S.Nos.2 to 4 were issued for
US$290000, US$270000 and US$420000. Furthermore, the original record pertaining to above GDs have been kept by the concerned clearing agent/exporters and they are reluctant to hand over the same despite repeated requests made by the concerned staff posted at NLC Dry Port, Quetta. However , the Exporters/Clearing Agents were issued notices under section
26 of the Customs Act, 1969. In response the clearing agent Messrs Frontier Enterprises submitted copies of E -Form and other related documents vide its letter dated 4th September
2012. Where as comparison of the computerized Data Entry Record pertaining to E -Forms
appearing at S.Nos.2 to 4 it reveals that by way of forgery/mis -declaration, the value of said
B-Forms were tampered and mis -declared the same in the GDS by adding a digit "0" and got
cleared/exported rice valuing US$2900000, US$2700000 and US$4200000 respectively by
the accused (respondents) being exporters and clearing agents. Besides, E -Form appearing at
S.No.1 has also not been certified by the bank, whereas export of rice valuing US$55,00,000
has been got cleared by the said exporters/clearing agents presenting fake and forged E -
forms. The exporters/clearing agents are obligated to maintain such requisite documents as well as relevant record as required to be maintained in terms o f Section 211 of the Customs
Act, 1969, but they have failed to maintain and furnish the same as also committed an offence of forgery. Since, the exporters/clearing agents could not justify the declaration, thus it is established that the exporters with th e active connivance of the clearing agents have mis -
declared the consignments on the basis of fake and forged documents and got declared/exported huge quantity of rice to Iran evading payment of legitimate foreign exchange to the tune of US$ 1,43,20,000/ - Export Development Surcharge Rs.34,01,000/ -
and withholding tax Rs.1,36,04,000/ -.
3. Pursuant to above FIR, the matter was investigated and the case challan was
submitted in the trial Court to the extent of accused (respondents) Abdul Zahir, Sarwar,
Muhamm ad Abbas Yousaf, Javed Iqbal and Babar Shehzad, while the accused (respondent)
Khawaja Muhammad was declared as proclaimed offender. Thus, charge was framed, which
was denied and the prosecution in order to substantiate the charge has produced the evidence
of six (06) witnesses. The accused (respondents) were also examined under Section 342, Cr.P.C. However, they neither recorded their statements on oath nor produced any evidence in their defence. On conclusion of trial and after hearing arguments, the lear ned trial Court
acquitted the accused (respondents) Abdul Zahir, Sarwar, Muhammad Abbas Yousaf, Javed
Iqbal and Babar Shehzad of the charge, vide judgment dated 31st March 2016. Whereafter, the Collector Customs filed Criminal Appeal No.05 of 2016 against the acquittal of the
accused (respondents).
4. After recording acquittal in favour of above named accused (respondents), the
absconding accused Khawaja Muhammad surrendered him before the mercy of Court, hence the trial also commenced to his extent, which also culminated into his acquittal, vide judgement dated 15th March 2018. Against whom, the Collector Customs filed Criminal Appeal No.02 of 2018.
5. Heard the learned counsel and perused available record. The perusal of record
justifies the impugned acqui ttal orders passed in favour of accused (respondents). It is
evident from perusal of record that the alleged forgery or tampering was committed in the month of July 2008, but it is surprising that the Custom Authorities have kept mum and neither any procee dings were initiated against the accused (respondents) nor the FIR was
lodged promptly, as the delay so caused is expanded on four years rather it was lodged on 14th September 2012. There is absolutely no justification and even explanation for such a long deliberate and intentional delay in registering the FIR. The main purpose of lodging
F.I.R. is to set criminal law in motion and to bring on record firsthand information about the occurrence of a crime and to provide a sound basis for carrying out investigation in the right direction excluding the possibility of fabrication of any false story. In view of the
circumstances of present case, delay in lodging F.I.R. cannot be taken lightly and it casts
serious doubt in the case of the prosecution. It is a settl ed principle of law that delay in
lodging the F.I.R. can only be condoned when such delay has been adequately explained but in the instant case, there is no explanation for the same.
6. It has also been observed that the entire case of the prosecution rest s upon GDs and E -
Forms, wherein allegedly forgery and tampering was committed by the accused (respondents) in their capacity as Exporters/Clearing Agents, but the prosecution has failed to produce the said documents in the trial Court in order to establish the charges of forgery
and tampering. Even otherwise, PW -6 being the Investigating Officer of the case has
admitted in his cross -examination that as per law it was the duty of the Custom Authorities to
keep the original recorded in the office. Thus, non- production of relevant and essential
documents in the trial Court has rendered the entire case of prosecution as doubtful and has nothing left to make reliance for awarding conviction and sentence to the accused (respondents). Even otherwise, the own witnes s of prosecution i.e. PW -5 in his cross -
examination admitted that he had not collected any concrete ocular evidence in the instant case.
7. It has also been observed that all the accused (respondents) excluding the accused
Babar Shehzad are the Clearing Ag ents. The task of Clearance of import/export goods is
being done by the Licensed Agent, while there is no provision of law which empowers or give mandate to a Clearing and Forwarding Agent to check with the Bank the genuineness or otherwise of E -Forms, thus the accused (respondents) cannot be held responsible for such act
of forgery/tampering.
8. The perusal of impugned judgments of acquittal recorded in favour of accused
(respondents), it is crystal clear that the prosecution has badly failed to establish the charge through concrete and solid evidence, which fact itself was admitted by the own witnesses of the prosecution. The trial Court after proper appraisal of material available on record has rightly recorded acquittal in favour of the accused (responde nts). Even otherwise, it is settled
principle of law that once the accused is acquitted of the charge by the Court of competent jurisdiction, double presumption of innocence is attached with such order, which cannot be reversed until and unless it is prove d that the order of acquittal is perverse, fanciful,
capricious or contrary to record, but the perusal of impugned judgments establish the facts that the learned trial Court after proper appreciation of evidence available on record has come to just and pro per conclusion and the impugned judgment is not open for interference
by this Court.
For the reasons discussed hereinabove, the criminal appeals being devoid of merits
are dismissed.
SA/18/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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