1990 PLP 1588 (MLD)

IMAM ALI G. KAZI, J.‑‑The Customs House, Karachi cleared two imported Toyota cars on 26‑10‑1989 as old used vehicles of 1987 Model. The Appraising Intelligence Branch of the Customs Department received information that in fact the cars cleared by the Customs House as old cars of 1987 Models were brand new cars of 1989 Model. They then started enquiry into the matter. On 30‑10‑1989 one of the cars was seized by the Appraising Intelligence Branch. It appears that the clearing agents who were responsible for the clearance of the said imported cars were required to make up the short levy of custom duty on both the cars which they made up by depositing three pay orders in favour of the Collector of Customs. As the result of investigation referred to hereinabove a first information report was recorded under section 156 (1) (a) (14)(77) of the Customs Act, 1969 on 2‑1‑1990 against the importers and their clearing agents while the proceedings were commenced against both the petitioners by way of departmental proceedings. The Federal Investigation Agency (EE Cell) started an enquiry in respect of import of the said two cars and the Collector of Customs issued directions to both the petitioners to appear before its Assistant Director. The petitioners under orders of the Collector of Customs continued to appear before the officers of the F.I.A. as and when required. Ultimately, it appears that another F.I.R. being F.I.R. No. 14 of 1990 was registered on 23‑2‑1990 implicating the petitioners, importers and clearing agents and two other officers of the Customs by the respondents. The second F.I.R. was registered under sections 156(1)(40) and (82) of the Customs Act, 1969 (Annexure `E'). The petitioners were arrested in the case and were released on bail by the F.IA. The petitioners were allowed bail by the Special Judge (Customs) Karachi in that offence as well. During the hearing of the bail application the prosecution informed the Court that the petitioners were also to be prosecuted under section 5(2) of Act II of 1947 read with sections 420, 468 and 471, P.P.C. On the premises based on the aforementioned background the petitioners have now filed the present petition under Article 199 of the Constitution and prayed as under: "(i) To declare that respondents have no authority in law to investigate the case pertaining to two vehicles which are subject‑matter of F.I.R. No.SI/MISC/2270/89‑AIB Customs House, Karachi with learned Special Judge (Customs), Karachi. (ii) To quash F.I.R. No.14/90 lodged by respondent No.2 with learned Special Judge (Customs) Karachi. (iii) Mandatory injunction directing respondents to refrain from taking action pursuant to F.I.R. No.14/90 lodged by them or taking any steps or holding any enquiry/investigation in respect of two vehicles which are involved in F.I.R. No.SI/MISC/2270/89 A.I.B. in any manner whatsoever. (iv) To grant any other/better relief which this Hon'ble Court may deem fit and proper in the circumstances of the case." Mr. Raja Qureshi, learned counsel for the petitioners has mainly contended that the petitioners cannot be subjected to enquiry by different agencies under two different F.I.Rs: relating to the same offence as it will amount to putting the petitioners under double jeopardy. He has mainly relied on the judgment of a DB of this Court passed in C.P.No. D‑117/1988. Mr. Raja Qureshi, learned counsel has not been able to point out any authority which could in fact indicate that the respondents, the officers of the F.I.A., cannot investigate the case so as to entitle them to grant of the first prayer in the petition. By their second prayer the petitioners seek quashment of the second F.I.R: The petitioners can quite conveniently seek such relief by filing an application under section 561‑A Cr.P.C. Such a remedy being available in law as an effective and alternate remedy, the present petition on that ground is barred by Article 199 of the Constitution itself. The third prayer is merely a consequential prayer to the second prayer. The judgment of the D.B. of this Court passed in C.P.No.D‑117/88 cannot be relied on for the purpose of the present petition as it is based on altogether different facts. In that case two final reports were filed by two different prosecuting agencies in two different Courts and the Court merely ordered stay of proceedings in one Court till the case before the other Court was decided. Mr. Raja Qureshi, Advocate for the petitioners laid stress on the provisions contained in Article 13(a) of the Constitution of Pakistan and section 403 of the Criminal Procedure Code and argued that the petitioners cannot be prosecuted for the same offence more than once. In the present case the petitioners were not named in the F.I.R. filed by the Appraising Intelligence Branch of Customs but are being dealt with departmentally and can only be punished for misconduct which will not amount to a conviction for an offence. The well‑established principle of common law nemo. debet bis punire pro uno delicto embodied in section 403 of the Criminal Procedure Code is not attracted in the case as the petitioners are being dealt with departmentally and there is no likelihood of being sent up for trial under the first F.I.R. We are fortified by our view on such point by the case reported in 1978 p PCr.LJ

262. So far as the second F.I.R. is concerned, it is still at the stage of investigation as stated by Mr. Raja Qureshi and the petitioners have not been prosecuted for any offence under that F.I.R. "To prosecute" according to its meaning given in legal thereasus means: Prosecute (Charge) verb accusare, arraign, bring action against, bring before a Court, bring suit, bring. to justice, file a charge, file a claim, prefer a claim, prefer charges, proceed against civilly, proceed against criminally, sue, summon, take one to Court." In short prosecution of a person commences only when proceedings before a Court of law are initiated against him. No ground has been shown to exist to enable this Court to stop investigation of offences under that F.I.R. The bar contained in Article 13(a) of the Constitution can at best be attracted when a person is actually prosecuted more than once for the same offence. The facts of the present case as disclosed do not attract such a bar. Such a view of the matter was taken in the case reported in P L D 1980 SC

6. From the facts stated above, it is absolutely clear that the apprehension of the petitioners that they are being prosecuted for more than once for the same offence is not well‑founded. For the foregoing reasons, we see no force in the petition, which dismissed in limine. M.B.A./M‑1118/K Petition dismissed.