2009 PLP 1404 (YLR)

NADEEM AZHAR SIDDIQI, J.

The applicant by filing this special Criminal Revision Application has challenged the order dated 28-11-2008 passed by the learned Special Judge (Customs & Taxation), Karachi dismissing the application under section 265-K, Cr.P.C. filed by the applicant. In short the facts of the case are that F.I.R. was registered on 30-8-1999 with the allegation that S.M. Yousuf & Co. imported 17 consignment of dried cow-hides and cleared the same for home consumption by producing fake invoices with bill of entry and by mis-declaring the transaction value of the import has evaded the tax to the tune of Rs.14,61,

036. During the pendency of the case before the learned Special Judge (Customs & Taxation) Karachi an application under section 265-K, Cr.P.C. was filed, which was dismissed vide impugned order, hence this revision application. Learned counsel for the applicant submits that the learned trial Court has failed to consider the material facts and has erroneously dismissed the application. He further submits that there is no material available on record connecting the applicant with the alleged offence. He then submits that there is no probability of conviction of the applicant and while dismissing the application under section 265-K, Cr.P.C. the learned trial Court has not considered section 25 of the Customs Act, 1969 as well as amnesty granted to the applicant and the order of this Court passed in Reference No.45/2007. He submits that the case is pending since 2003 and keeping the case pending will amount to abuse of process of Court. I have heard the learned counsel for the applicant and perused the record made available before me. The allegation against the applicant is that he has imported 17 consignments and cleared the same by producing fake invoices with Bill of Entry and misdeclared the transaction value of the import to evade the duties and taxes. The order-in-original was also passed against the applicant imposing a penalty of Rs.700,

000. It appears that the applicant has paid the differences of duties and taxes and availed amnesty regarding payment of penalty. During pendency of the appeal against the order-in-original the applicant has claimed exemption of penalty in terms of S.R.O. No.520 (I)/05, dated 6-6-2005, S.R.O. No.(I)/05, dated 7-7-2005 and S.R.O. No.723 (I)/05, dated 1-7-2005, which were allowed to the applicant vide Central Board of Revenue's letter C.No.2 (1) Cus. Jud/2005, dated 3-2-2006. The powers under section 265-K, Cr.P.C. can be exercised at any stage provided that the Court on hearing of the parties has come to the conclusion that there is no probability of the accused being convicted. The accused has to show that even if, the material/ evidence available on record is taken to be true he cannot be convicted. The trial Court in the impugned order has held that prima facie the applicant by filing forged and fake imported documents committed an offence punishable under section 156(1)(14)(77) of the Customs Act, 1969. The trial Court before passing the order has perused the record available with it and has rightly dismissed the said application. Learned counsel for the applicant has failed to show that from the material available on record no case against the applicant has been made out and there is no probability of his conviction. The applicant has claimed amnesty, which is in respect of civil liability of payment of penalty and not from criminal liability of forging and preparing fake invoices. From the perusal of section 156 of the Customs Act, 1969 it appears that most of the offences are adjudicatable by the Customs Authorities under section 179 and some of the offences under Customs Act, 1969 are triable by a Special Judge appointed under section 185 of Customs Act, 1969. There are also some offences which are adjudicatable by the Customs authorities is well as by special Judge. In these offences the customs authorities .and the special Judge have to exercise their jurisdiction independently. There is no bar if both the jurisdictions are exercised simultaneously, as both the jurisdictions are concurrent. As per the trial Court the material is available on record and unless the evidence is recorded the applicant cannot be acquitted under this provision and the parties are entitled to prove their respective case. In view of the above discussion, I do not find any merits in this criminal revision application, which was accordingly dismissed while passing short order dated 3-4-2009. However, before parting with this case, I may observe that the case is pending against the applicant before the trial Court since 2003 and I have been informed that still the charge has not been framed. Learned trial Court is directed to frame the charge immediately and to expeditiously proceed with this case and to dispose of the same within six months in accordance with law. For every adjournment the trial Court will submit its report to this Court. Learned Trial Court is also directed to submit its report regarding delay in trial. This Spl. Cr. Revision Application is disposed of accordingly and these are the reasons of the said short order. H.B.T./M-75/K Application dismissed.