2008 PLP 1974 (YLR)

MUHAMMAD KHALID ALVI, J.

Muhammad Abdullah petitioner seeks bail after arrest in case F.I.R. No.1, dated 13-3-2007 for offences under sections 32, 32-A, 14, 14-A, 156 (1) Customs Act registered at Police Station Investigation and Prosecution Branch Customs House Multan.

2. Precise allegation against the petitioner, according to the F.I.R. and the investigation conducted by the Investigating Officer is that period during 13-6-2006 to 20-11-2006 petitioner had been working as Examining Officer at Air Freight Unit, Multan. During the course of audit of the period between January, 2005 to November, 2006 it transpired that petitioner had been furnishing reports of examination which were incorrect and were mala fide in connivance with the imports and the Clearing Agents, as a result thereof huge amount of revenue was evaded and loss to the national exchequer was caused.

3. Learned counsel for the petitioner contends that according to section 2 (o) of the Customs, Act, 1969, Officer of the Custom is defined as given in section 3 of the Customs Act. Petitioner falls in category (g) of section 3 of the Act. It is further submitted that according to section 2(pa), "person" has been defined which includes a company, an association, a body of individuals whether incorporated or not. It is thus contended that petitioner being an Officer of the Customs is a different entity from the "person" defined in Clause (pa). Petitioner is being charged to have abetted the commission of offence under section 32-A of the Customs Act. It is contended that according to section 32-A only "any person" can be said to have committed an offence/fraud. Petitioner being not a person as defined in Clause (pa) of section 2 and being a separate entity as "Officer of the Customs", cannot be said to have committed any offence under section 32-A. To further strengthen his arguments he has referred to sections 193 to 217 of the Customs Act to contend that "person" and "officer of the Customs" have been separately dealt with for the purposes of filing appeal. Relies on a judgment of the learned Customs, Excise and Tax Appellate Tribunal reported as PTCL 1998 CL 76 (Sardar Mohammad Ch. v. Collector of Customs, Central Excise, Faisalabad) and a judgment of the Sindh High Court reported as 2004 PTD 2987 (Director, Directorate General of Intelligence and Investigation, Customs and Excise, Karachi v. Messrs. Al-Faiz Industries (Pvt.) Ltd., Karachi and another).

4. On the other hand, learned counsel for the Department contends that section 2 of the Act deals with the definition of various phrases/words used in the Act. Every definition from Clause (a) to Clause (y) starts with a word "means" except Clause (pa) and (bbb) which starts with the word "include". It is thus submitted that definition of person given in the said clause includes the categories of person defined in the said clause and also other person whether natural or legal. However, Clause (bbb) is irrelevant of the purpose of this case. Petitioner being a natural person can be said to have abetted the commission of fraud within the meaning of section 32-A of the Customs Act.

5. I have considered the contentions of the learned counsel for the parties.

6. When the statute defines certain words or phrases used in the said statute I and the definition starts with the word "means", then, even if, the said word or phrase has any other meaning, the same cannot be imported except the one which is described in the definition itself. Meaning thereby that the definition restricts the meaning of that word or phrase to the one which is provided by the definition clause. However, if the definition starts with the word "includes" then scope of the word or phrase being defined thereafter is enlarged i.e. not only the meanings given in the statutes but also all other possible meanings of the said word and phrase can be adopted including those which are provided by statutes.

7. There is no denying the fact that petitioner is an Officer of the Customs Department within the meaning of section 2(o) read with section 3 (g) of the Act. At the same time it cannot be said that he has no other capacity of natural human being i.e. a "person". The definition given in Clause (pa) merely includes certain special categories as well within the meaning of person, it does not exclude the other natural and legal persons from the definition of "person" for the purpose of Act. The use of word "includes" amply clarifies that the other persons who can be legally termed to be a "person" would also be deemed to be persons for the purposes of this Act. The offence allegedly having been committed by the petitioner was in his dual capacity; one as an Officer of the Customs and the other as a natural person. Therefore, it can be safely concluded that if the petitioner has committed any offence, he cannot be excluded on the ground that he is an "Officer of the Customs" and not a "person". According to the record available, during the period 13-6-2006 to 20-11-2006, there are certain examinations conducted by the petitioner which does indicate that they were not in accordance with law. The offences with which the petitioner is charged fall within the prohibitory clause of section 497, Cr.P.C, therefore, I do not find any merit in this application, which is accordingly dismissed. H.B.T./M-152/L Bail refused.