2022 PLP 1760 (PTD)

FAHIM AHMED SIDDIQUI, J.

The appellant Director, Directorate of Intelligence and Investigation, FBR, Karachi on behalf of the State has filed this appeal against the acquittal of respondent Malik Abdul Qayyum son of Abdul Hameed Kakar in the Criminal Case No. 37 of 2015 initiated upon FIR No. 149(1)DC1/D.Port/FIU-Hyd-CM/14 for offences punishable under clauses (1), (14) and (14-A) of Section 156 of the Customs Act, 1969. Through the instant appeal, the appellant has impugned the acquittal judgment dated 08-05-2018 passed in the aforementioned criminal case.

2. The factual narration of the case is that upon a credible information, the customs authorities came to know that M/s. Malik Abdul Qayyum Kakar & Co., Ghas Mandi, Hyderabad with the active connivance of their other associates are allegedly involved in the import and fraudulent clearance of Old and Used Concrete Transit Mixture Trucks based on fake Pre-Shipment Inspection Certificate purportedly issued by M/s. Bureau Veritas (Pvt.) Ltd., Karachi. In pursuance of such information, the customs officials, deputed by the appellant, conducted preliminary investigation and they allegedly deciphered 28 numbers of such trucks imported by the aforesaid company which were under Transhipment Permits dated 23-10- 2014 transhipped to Hyderabad Dry Port for clearance from MCC Customs House, Hyderabad by filing of Goods Declaration (GD) and payment of duties and taxes leviable thereon. Subsequently, M/s M.R. Enterprises CHAL No. 2856, Karachi filed GDs along with PSI Certificate and other relevant documents. Meanwhile the Director General sought verification of PSI Certificates from M/s Bureau Veritas (Pvt.) Ltd., Karachi, which were not verified. As such the aforementioned criminal case was initiated against the respondent in respect of mis-declaration and submission of fake and bogus PSI Certificates for the clearance of 28 Old and Used Concrete Transit Mixture Trucks.

3. After submission of the Final Report, the charge was framed against the respondent which was denied by him and he claimed trial. The prosecution was allowed to establish the offence by producing evidence. After recording evidence and completing all the formalities, the learned trial Court concluded that the prosecution remained failed to bring the guilt of the nominated accused (respondent) at home, as such the respondent was acquitted from the charge through the impugned judgment.

4. While pressing the instant appeal, the learned counsel for the appellant has referred paragraphs 'a (i) & (v)' of the Import Policy Order, 2016 and submits that the alleged used Concrete Transit Mixture Trucks fall under the category of construction machinery. According to him the said old and used Concrete Transit Mixture Trucks can only be imported by a company/contractor, who has been awarded a job in a foreign country and after completion of the task, the said contractor/company was entitled to bring such construction machinery to be used in the project under PSI Certificate issued by Bureau Veritas to verify that the same is old and used machinery. He submits that the said pre-shipment certificates were proved fake and bogus as per the report of Bureau Veritas (Pvt.) Ltd., Karachi. In response to a query, he admits that such verification was sought from Bureau Veritas (Pvt.) Ltd., Karachi and not from their counterpart in UAE from where the said imports were made. However, he submits that there is some misreading and non-reading of available evidence i.e. the letter issued to Bureau Veritas (Pvt.) Ltd., Karachi by emphasizing that production of such document is sufficient to establish the prosecution case against the respondent.

5. Khuwaja Shams-ul-Islam, learned counsel for the respondent, strongly opposed the instant appeal. According to him, after a full-fledged trial, the respondent has been acquitted from the trial Court as the prosecution could not bring an iota of evidence against the respondent. He submits that the star prosecution witness is Mr. Naveed Tariq, Asst. Manager, Bureau Veritas (Pvt.) Ltd., Karachi but the prosecution did not call him in the witness box. In the end, he seeks dismissal of the instant appeal.

6. After hearing the arguments, I have examined the entire material available in the record and proceedings. The entire case of the prosecution depends upon the verification of PSI Certificates issued from the Dubai office of Bureau Veritas. It is the allegation against the respondent that the import of 28 numbers of Old and Used Concrete Transit Mixture Trucks was against the policy as the same was done under false and bogus PSI Certificates. For the same, the prosecution has strongly relied upon a letter issued by Bureau Veritas (Pvt.) Ltd., Karachi. During arguments, the learned counsel for the appellant frankly admits that the verification of such letter from Bureau Veritas, Dubai was not sought by the prosecution. This fact was also admitted by all the prosecution witnesses that they have not sought any verification of such letter from the Dubai office of Bureau Veritas. I am of the view that the undue reliance upon the said letter of Bureau Veritas (Pvt.) Ltd., Karachi will not serve the purpose of the prosecution to establish that the PSI Certificates issued in respect of the imported construction machinery were not genuine. It is a fact that Bureau Veritas (Pvt.) Ltd., Karachi is not operating under the municipal laws of Dubai. The proper course was to get such information from the Dubai office of Bureau Veritas from where the said certificates were purportedly issued. Although in the letter of Bureau Veritas (Pvt.) Ltd., Karachi, it is mentioned that the said certificates were not issued from Bureau Veritas Dubai, however, the said letter was silent about the mode of such verification by them. What is more, the person who has issued such letter on behalf of Bureau Veritas (Pvt) Ltd, Karachi was never produced before the trial Court to support his letter and to disclose about his source of information regarding these certificates issued by the Dubai office of Bureau Veritas In these circumstances, it can be said that the prosecution itself has axed the roots of their case; hence the trial Court has rightly acquitted the respondent.

7. The outcome of the above discussion is that the instant appeal bears no merits, as such the same was dismissed through a short order dated 19-02-2020 and these are the reasons for the same. SA/S-106/Sindh Appeal dismissed.