2000 PLP (C (PLC(CS))

Laws Cited

Representation

• Abdul Ghafoor Mangi for Appellant (in Appeal No.653-R of 1997).
• Syed Ijaz Hussain Shah for Appellant (in A.673-R of 1997).
• M. Javed Aziz Sandhu for Respondents alongwith Zulfiqar Ahmed, Second Secretary, CBR, Faiz Ahmed, Assistant Collector of Customs, Quetta and Syed Zafar Ali, Deputy Superintendent.
• Date of hearing: 31st August, 1998.
• 14. Mr. Abdul Ghafoor Mangi, Advocate, who represented Mumtaz Ali Changezi appellant, contended that since a criminal case on the same allegations was pending against the appellant in the Court of Special Judge Customs, Karachi, the departmental proceedings should have been deferred as the decision of the departmental enquiry was likely to influence Special Judge Customs; that the appellant had made request for the supply of copies of statements of witnesses and documents which were to be relied upon by the prosecution, but the appellant was not provided with those copies; that the‑ Inquiry Committee based its finding on the report of the Investigating Officer and the Inquiry Committee did not apply its independent mind; that the complainant was not examined in the presence of the appellant and, thus, the appellant was deprived of the right of cross‑examination; that the appellant made request to the Inquiry Committee for summoning those witnesses whose statements had been recorded behind his back but his request was not granted; that it was not the responsibility of the appellant to prove the purchase of Polyester Fabrics (Jacquard) from various firms and to further prove payments to those firms; that the receipts of the transport companies had been brought on record but the same were not duly considered; that the, appellant was not the Appropriate Officer' under the Customs Act and it was not his duty to check the documents; that the provisions of sections 13 to 19 of the Public Servants (Enquiries) Act, 1850, had been violated; that under section 2(b) of the Customs Act‑all functions were to be performed/conducted by the Appropriate Officer and vide SRO No.806, dated 20‑9‑1984, Inspectors had been declared as Appropriate Officers, hence, it was not the‑ responsibility of the appellant to check the goods and prepare documents; that any instructions or notifications having no backing of law were not required to be followed and the general office orders could not override the provisions of Act; that notification which is not published in the Gazette and nor supported by any Act, has no legal value; that in this case burden of proof was shifted to the appellant which was contrary to law; that Saeed Ahmed Baluch, Sa'adat, Zafar Ali, Qaiser Baig and Naseer Baluch stated in their affidavits that the Inquiry Committee never called them and similarly Abdul Ghafoor, Incharge, CIA, stated that he never contacted the Inquiry Committee; that the appellant was not permitted to examine his witnesses although he had made such a request to the Inquiry Committee; that jurisdiction of the appellant was spread over a vast area, having various stations, and, thus; it was not possible for the appellant to remain stationed at Gwadar Port all the times; that the appellant had seen the Shipping Bills in routine which were brought to him by other Customs officials duly filled in; that there were that the charge on the basis of which the appellant was dismissed‑ from service was not mentioned in the charge‑sheet; that there was no direct or circumstantial evidence' to prove that the appellant had abetted .the commission of fraud; that the departmental brief was not supplied to the appellant which caused prejudice to the appellant in his defence; that the report which had not been shown to the appellant could not legally be used against him; that the appellant did not know that Khalid Aziz, Inspector, was on leave during the relevant dates as he was not the leave sanctioning authority; that the appellant had pointed out serious irregularities while processing the case but those were not taken notice of; that Standing Order No. l of 1987 was confined to goods sent by bail or NLC; that the appellant was in a junior position and in the hierarchy of Department there were Collector, Deputy Collector, Assistant Collector, Superintendents, Deputy. Superintendents and Inspectors and it was the Collector who could pass an order for the payment of rebate and in the instant case the Collector had passed such an order who had ignored the directions of the Director‑General, Customs (Inspection and Training) and the CBR; that there was no oral or documentary evidence against the appellant to show that he had aided or abetted in the preparation of false Shipping Bills in this case. The learned counsel also drew our attention to sections 25 and 107 of the Pakistan Penal Code containing definitions of "fraudulently" and "Abetment" and argued that the case of appellant was not covered under those definitions.
• There existed two Jetties; Naval Jetty and Fish Harbour Jetty. It was certified by the Judge Advocate‑General vide letter, dated 8‑6‑1992 (Annexure 26, page 339) that the facility of Naval Jetty had never been extended to any personal organization for any commercial/private use except by the Belgium firm working on Mini Port Project. Similar answer was given by LES Enterprises S.B.B.M. ET SIX CONSTRUCT on 14‑6‑1992 that they never extended any facility to third parry for loading of commercial cargo from Gwadar Fish Harbour Jetty and that the firm used two cranes which had the capacity to lift load of 500 K.G., for handling its own machinery and material. Some evidence has been brought on record to show that certain goods were brought on Gwadar Port and unloaded. On this basis, it was argued that Gwadar Port was operational. As certified by the Judge Advocate‑General, they had allowed the Belgium firm which was working on Mini Port Project, the facility of using Naval Jetty for bringing the goods. Principal Officer Mercantile Marine Department, Ministry of Communications, Government of Pakistan, stated in letter, dated 13‑4‑1992 (Annexure 22, page 334) that Gwadar Port commenced accepting country crafts for loading and discharging at Jetty since last one and a half month only. According to him, AI‑Ameeni and Al‑Anwari could carry 185 and 345 bales respectively and in case some bales were loaded on deck, which was not generally done, those could carry additional load of 60 and 115 bales respectively. The maximum number of bales 245 and 460 could be loaded on Al‑Ameeni and Al‑Anwari. The loading of 733 and 799 bales on Al‑Ameeni on 15‑6‑1991 and 11‑7‑1991 and 1535 bales on AI‑Anwari on 27‑7‑1991 was an impossibility. Document (Annexure‑K, page 578) brought on the record by Mumtaz Ali Changezi appellant, would show that 29 tons of steel was brought on container for LES Enterprises S.B.B.M. ET SIX CONSTRUCT, Fish Harbour and Mini Port Project, on 5‑5‑1991. One thousand tons of cement had been brought to Gwadar on 25‑11‑1989, for the said Belgium firm (Annexure L). Shipping Bills (Annexures M and N, pages 580‑581) show activity of one crane weighing about 30 tons, and equipments for wick drain driving weight about 14 tons. For these articles, permission had been given to the Belgium firm for the use of Naval Jetty. Documents (Annexure , pages 545 to 577) (32 in number) indicate that Toyota Cars and Pick‑up had been unloaded at Gwadar on different dates in the year 1990 by different individuals during the period when there was craze for the import of second hand Japanese Cars, for the purpose of saving custom duty and then making profits by sale of those cars. Port of shipment has been mentioned as Dubai. Those small cars could be brought even in the boats, which could be unloaded without Jetty. There is no indication from the Bills of Entry that the cars had been brought on different dates by different persons on vessels/country crafts. It would not show that the Gwadar Port was operational on the dates relevant to this case.

Headnotes / Summary

Judgment & Decree