1994 PLP 1102 (MLD)

Applicant Muhammad Nawaz seeks quashment of proceedings pending against him and co-accused in the Court of Special Judge (Customs & Taxation) Karachi under section 32 of the Customs Act, 1969 punishable under section 156(1)(14)(82) of the said Act. The initial F.I.R. No.10(19) Dv-Inv Misc/91/A dated 24-2-1992 was lodged by Muhammad Saleem, Principal Appraiser, Directorate of Inspection and Training (Customs Central Excise and Sales Tax), Karachi, in which names of Imtiaz Ali Taj, Haroon Rasheed and Abdul Majeed Askani were mentioned as accused with addition of words `concerned staff of Gwadar Customs House' and `concerned staff of Quetta Customs House'. Such members of staff of Customs Houses were thus proposed to be arrayed as accused if and when evidence was collected against them. The F.I.R. pertained to the export rebate claim under SRO No.187(1)/91 dated 10-3-1991 and Import Licence Fee Refund Claim under Public Notice No.22(91) Imp-I dated 9-6-1991 regarding fraudulent exports. After a lengthy investigation not only further F.I.Rs. were registered but separate interim charge-sheets were put up on 9-3-1992 which contained the names of some officers of the Customs Department but not that of the applicant. Final charge-sheets were however, submitted on 10-11-1992 showing applicant as Accused No.1. Because of separate challans submitted against applicant and others, he has filed separate applications seeking quashment of proceedings against him. As the facts and grounds in all applications are identical, I propose to decide same by single judgment. The facts in brief as given in the initial F.I.R. lodged by complainant Muhammad Saleem, who is Principal Appraiser Directorate of Inspection (Customs Central Excise and Sales Tax) Karachi, are, that he received information that 9 consignments comprising 499 bales of Polyester Jacquard Fabrics and wooden glass marbles had been fraudulently shown exported to Dubai from Gwadar Port for the purpose of obtaining custom duty drawback amounting to Rs.2,38,26,071 and import licence fee refund of Rs.22,93,250 total amount being Rs.2,61,19,

321. This amount is reflected in one interim challan while different amounts have been shown in the other interim challans although as mentioned above, the initial F.I.R. was only one whereafter other F.I.Rs. were also registered. Complainant further stated that accused Imtiaz Ali Taj, Haroon Rasheed and Abdul Majeed' Askani, in collusion with the `concerned staff of Gwadar Customs House and Quetta Customs House manipulated to show fraudulent export and received export rebate claims and import licence fee through M/s. Charly Enterprises. The accused managed to file various export shipping bills showing the export of goods to M/s. Sangeeta Traders Dubai UAE. Accused Abdul Majeed Askani acted as Customs Clearing Agent Gwadar for shipment of the goods, whereas accused Imtiaz Ali Taj, Haroon Rasheed and some others were shown as exporters, on the strength of shipping bills, prepared by exporter Haroon Rasheed, and his employee Imtiaz Ali Taj. Applications for export rebate claims were prepared and submitted to the Collectorate of Customs, Quetta, where applicant was at the relevant time serving as Collector of Customs. The allegation further is that the applications were processed and sanctioned by the Customs Officer without proper scrutiny and the checking of authenticity of the documents and because of lack of proper information necessary to be checked prior to sanction, the exporters with the active connivance of the customs officials succeeded in receiving huge amount of custom duty drawback and import licence fee refund. Till submission 'of interim charge-sheets on 9-3-1993, name of applicant was not mentioned as an accused, but on 10-11-1992 when final charge-sheets were submitted, he is shown as Accused No.1. Applicant has challenged the proceedings against him and has sought quashment thereof. I have heard Mr. Rana M.. Shamim, learned Advocate for the applicant, and Mr. Abid S. Zuberi, learned Advocate appearing for the State. The main contentions raised by applicant's learned Advocate are as under:

(a) Under section 223 of the Customs Act, 1969 read with Customs General Order No.21 of 1988 dated 27-9-1988, applicant was bound to sanction 80% of the amount of claim within 72 hours of the filing of the claim, after a proper claim complete in all respects had been filed and the. remaining amount of drawback/rebate found acceptable was payable within next one month; (b) Under section 185A(1)(a) of Customs Act, 1969, cognizance of the case could be taken by the Special Judge upon a report in writing made by an `Officer of Customs' or by an `Officer Incharge of a Police Station' or by `any other officer specially authorised in this behalf by the Federal Government'. Muhammad Saleem, Principal Appraiser, who lodged the report was not either of these and therefore, on the basis of such report no cognizance could have been taken by the Special Judge. To support this point reference is made to the Charter of Function of complainant as enumerated in SRO-723(1)/84, dated 19-8-1994 and the Customs-General Orders (C.G.Os.) 19/74, dated 25-10-1974, 15/75, dated 23-2-1975, 26/75, dated 26-7-1975 and 6/75, dated 28-5-1976; (c) Because the complainant Muhammad Saleem was not a Customs Officer and could not lodge. report, all that was required of him was that on coming to know of the commission of any offence under the Customs Act or an attempt or likelihood of an attempt of any such offence, he should. have given information thereof in writing to the officer incharge of the nearest Customs House or Customs Station or if there was no such Customs House or Customs Station, to the Officer-Incharge of the nearest Police Station. To support this point learned .Advocate referred to the provisions of sections 3 and 4 of the Customs Act which lay down the appointment of Officers of Customs and their powers and SRO-95(1)/83, dated 12-2-1983; (d) On.- allegations in the F.I.R. no offence under section 32 of the Customs Act is made out against applicant; (e) Under section 197(1)(2) of Cr.P.C. sanction to prosecute the applicant was to be obtained from the President of Pakistan and because such sanction is not obtained, no cognizance could be taken by the trial Court. Similarly, because a protection is provided to the applicant under section 217 of the Customs Act for anything which is done or intended to be done in good faith in pursuance of this Act or the Rules, he cannot be prosecuted; (f) The only evidence collected against applicant during investigation, has come through P.Ws. Syed Abdul Hameed, M.W. Warsi and Muhammad Arshad Rana, who were all subordinates of applicant, who if believed, should have been made co-accused, as, it is they who had scrutinised. and checked the claims, found them in order and never objected to the payment being made to the exporters and recommended payment to exporters; and (g) Mala fide on the part of the prosecution, particularly the investigating officer. Mr. Abid S. Zuberi, learned Advocate appearing for the State has used the following points:

(a) If a prima facie case is established, jurisdiction of this Court under section 561-A of Cr.P.C. is not to be invoked but it should be left to the decision of trial Court; (b) The Investigating Officer Muhammad Saleem had the authority and power to lodge F.I.R. and investigate the case; (c) Even if it is assumed that Muhammad Saleem was not authorised to register the F.I.R. it shall have no bearing on the trial of the case; (d) Under section 223 of the Act, all officers of Customs and other persons employed in the execution of this Act were bound to follow the orders, instructions and directions of the Board; and (e) There was no mala fide on the part of 1.0. but even if some aspect of the investigation reflects mala fide, that by itself would be no ground for quashment of proceedings. While elaborating these points Mr. Zuberi has argued that under clause 6 of C.G.O. No.21 of 1988 dated 27th September 1988, all rebate and duty drawback claims are mandatorily to be subjected to normal scrutiny, required in such cases and no aspect of the scrutiny and examination of these claims could be neglected on the pretext of expeditious disposal. According to the learned Advocate clause 1 of the said C.G.O. which provides that at least 80% of amount of claim would be paid within 72 hours of the filing of the claim, is subject to clause 6 which requires not only normal scrutiny but also that no aspect of scrutiny and examination is to be neglected on the pretext of expeditious disposal. It has been pointed out that the applicant was on notice when he received the letter dated 2-1-1992 of the Directorate of Inspection (Customs Central Excise and Sales Tax) South Zone, in which it was specifically mentioned that detailed investigation into the export of Polyester Fabrics to Dubai through Gwadar Port was being made and that no rebate may be sanctioned to the exporters till the matter is finalised by the Directorate. Despite having knowledge of the investigation,, as communicated through said letter, the applicant sanctioned rebate claims on 8-1-1992 which prima facie establishes a case against him. The learned Advocate has also referred to the statements of P.Ws. S. Abdul Hameed, Deputy Collector, and M.W. Warsi, Assistant Collector, who have shown mala fides of the applicant. The learned Advocate has further contended that because a prima facie case is established, the prosecution cannot be throttled on vague grounds of mala fide as argued by applicant's learned counsel. In support of these contentions reliance is placed on (i) A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; (ii) Sindh Quality Control Board of Drug and another v. M/s. Pioneer Liberations, Karachi and others 1993 SCMR 1177, (iii) Anwar Hussain Sani v. Sarfaraz Ahmad and 2 others PLD 1971 SC 669, (iv) Emperor v. Khawaja Nazeer Ahmad AIR 1945 Privy Council 18 and (v) Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR

599. The learned Advocate referred to the letter dated 11-1-1992 addressed by the applicant to Mr. Afzal Aamir Shah, Director of Inspection, intimating the latter that 100% payment of drawback claim has already been made to some of the exporters and 80% payment to others. By this letter the applicant tried to be clever and he asked for the clue to be provided to the Collectorate regarding the nature of information so that the matter is also investigated at his end. Mr. Abid S. Zuberi's contention in respect of this letter is, that there was no occasion to address such a letter when the applicant had knowledge of letter dated 2-1-1992 that an investigation in respect of the fraudulent export was under way and yet he sanctioned the rebate claims but to save his own skin he addressed letter dated 11-1-1992. Mr. Zuberi has pointed out that if the applicant was not bound by the letter dated 2-1-1992, what objection he had to withhold remaining 20% of the claim. According to the learned Advocate a prima facie case is established against the applicant and in the circumstances interference by this Court in its inherent jurisdiction is not called for. In support of this contention learned Advocate has referred the case of Ghulam Muhammad v. Muzzamil Khan and 4 others PLD 1967 SC

317. Mr. Zuberi then argued that the irregularity in investigation does not vitiate the proceedings or affect the jurisdiction of the trial Court. He referred to the provision of Section 185-A(1)(b) of the Customs Act and argued that even if Muhammad Saleem was not competent to lodge the report, a report could be lodged by anyone. He has pointed out to the Customs Rules and Notifications, 1983 and has attempted to show that the complainant Muhammad Saleem who is a `Principal Appraiser', is an `Officer of Customs' although word "Principal Appraiser" is not included in the definition. He has also referred to the provisions of section 3(d) of the Customs Act which lay down that for the purpose of this Act the Board may by notification in the official Gazette appoint in relation to any area specified in the notification "any person to be an Officer of Customs with any other designation". The learned Advocate by referring to all these Provisions has suggested that even if there is any irregularity in filing the report by Muhammad Saleem, Principal Appraiser, the same is curable under section 537 of Cr.P.C. In support of this contention the learned Advocate has relied on (i) Walizar and another v. The State PLD 1960 Kar. 204, (ii) The State v. Sohail Ahmad and 4 others PLD 1990 FSC 29, (iii) Noorul Islam v. The State 1986 SCMR 1836, (iv) H.N. Rishbud and another v. The State of Delhi AIR 1955 SC 196, (v) The Crown v. Mehar Ali PLD 1956 FC 106 and (vi) Muhammad Hanif v. The State 1991 PCr.LJ 1795. The learned Advocate then argued that under section 223 of the Customs Act the applicant was bound to obey the instructions of the Board and he was required not to sanction the claims after he was informed through letter dated 2-1-1992 that because of investigation in the case of fraudulent export the claims should not be sanctioned. In support of this learned Advocate has referred to the case of Indus Auto Mobile (Pvt.) Limited v. Central Board of Revenue and 2 others PLD 1988 Kar.

99. It is then argued that no sanction for the prosecution of applicant under section 197, Cr.P.C. was required in view of the case Federation of Pakistan v. Zafar Awan Advocate PLD 1992 SC 72 (Shariat Appellate Bench) whereby the decision of Federal Shariat Court, which declared the provisions of section 197, Cr.P.C. and section 6(5) of Pakistan Criminal Law Amendment Act, 1958, as repugnant to `Injunctions of Islam' has been upheld. It is also argued that mere registration of F.I.R. by a person other than the one authorised under law to do so, would not matter much because registration of F.I.R. is not a condition for investigation of a case. In support of this contention learned Advocate referred to 1989 PCr.LJ 1921. Referring then to alleged mala fide on the part of complainant, the learned Advocate argued that at the trial, it has to be proved by the applicant that action taken against him by complainant was either to hurt him or benefit himself (complainant). Reference in this respect is made to the judgment reported in PLD 1974 SC

151. He has argued that even if there was some mala fide on the part of I.O., that by itself would not vitiate either the trial or the jurisdiction of the trial Court. Mr. Rana M. Shamim replying to above contentions of learned State counsel argued that the only evidence in the case against applicant is, that. in spite of having received letter, dated 2-1-1992, whereby he was restrained from sanctioning rebate claims of exporters named in the said letter, he acted in hot haste and sanctioned the rebate on 8-1-1992. :n this respect it is argued that the letter, dated 2-1-1992 was put up before applicant on the said date alongwith a dump of other correspondence when he came to work in his office for the first time after a long leave and he only initiated that letter and passed it on to his subordinates, namely, P.Ws. Abdul Hameed, Deputy Collector of Customs, and M.W. Warsi, Assistant Collector, Customs, for scrutiny who both gave nothings and recommended the sanction of drawback claims. These two witnesses have now been made star prosecution witnesses against applicant when, in fact, if what they stated in their 161, Cr.P.C. statements could be worthy of any credence, these witnesses should also have been made co- accused, because, but for their noting and recommendation, applicant would not have sanctioned the claims of the exporters. It is then argued that whatever acts performed by the applicant were in good faith and his such acts are saved by section 217 of the Customs Act and section 3(20) of General Clauses Act, 1893. The learned Advocate then argued that the judgment of the Federal Shariat Court and upheld by the Supreme Court, declaring provisions of section 197 of Cr.P.C. as repugnant to injunctions of Islam, would not be attracted in the case of the applicant, for whose prosecution the sanction under section 197 of Cr.P.C. was necessarily to be obtained. The contention of the learned Advocate is that because the case was registered prior to the date fixed by the Supreme Court (30-6-1992), by which date law was to be suitably amended, required sanction had to be obtained and absence of sanction to prosecute him, would amount to prosecuting the accused without lawful authority. Arguments of the learned counsel and the case-law referred by them are perused. Under section 223 of the Customs Act read with Customs General Order dated 27-9-1988 the applicant was bound to sanction the rebate claims within 72 hours after the papers were referred to him. The letter dated 2-1-1992 issued by the Directorate of Inspection (Customs Central Excise and Sales Tax) South Zone which did not point out to any fraud or misrepresentation by the exporters, could not alter the statutory obligation of the applicant to sanction the rebate claims within 72 hours. The letter dated 2-1-1992 was put up before applicant in routine, which he initialled and referred to his subordinates P.Ws. Syed Abdul Hameed and M.W. Warsi for scrutiny and assessment. He being the Collector of Customs, could not scrutinise each and every case individually but had to rely on the nothings made by his subordinates who were Senior Officers of the Customs Department. I deem it necessary to refer some of the nothings of these witnesses:

"Kindly see a letter No.10(19)Dv-Misc/91/05, dated 2-1-1992 placed opposite at pages 100, 99 received from Directorate of Inspection (Customs Central Excise and Sales Tax) South Zone, Karachi regarding investigation into the export of Polyester Fabrics to Dubai through Gwadar Port under claim for Rebate. The Director is requesting that no rebate should be sanctioned in the cases detailed and further requesting for supply of copies of the required shipping bills bearing Examination reports. (Sd.) 8-1-1992 Rana Muhammad Arshad Inspector Incharge Rebate Section." "A confidential reference from Directorate of Inspection, Karachi regarding export of Polyester Fabric to Dubai may kindly be seen. The Director has reported that on receipt of credible information, the Directorate carried out preliminary investigation which revealed that consignments of Art Silk Fabrics as enumerated in the Director's letter have been exported through Customs House, Gwadar to Dubai under claim of rebate during December, 1990 to October, 1991. In view of the above the Director in 2nd para. of his letter has requested that no rebate should be sanctioned to the above exporters. He has neither reported any discrepancy in the exports nor intimated the nature of complaint /information. I have checked from the record and found that cases at Serial Nos.1 and 2 of the list 100% payment has been made to the exporters. In cases at Serial Nos.3 to 50, the provisional payment of 80%. of the claim have been made as per practice of the Collectorate, subject to final payment after check of value by valuation check Committee. The factual position may be intimated to the Director and A.C. Gwadar may be directed to supply copies of shipping bills containing examination reports to the Director of Inspection. The Director may also be requested to intimate the specific complaint so as to enable this Collectorate to investigate at its level also (Sd.) 8-1-1992 A.C. Rebate M.W. Warsi." "Foregoing note may kindly be perused. The Directorate General of Intell. has already sent a contravention report in Cases Nos.1 and 2 of M/s. Nadia Traders and the reports are under scrutining. As regards the rest of the cases we may intimate the factual position to Director of Inspection and request him to convey specific complaint/information etc. Submitted please. (Sd.) 9-1-1992 Syed Abdul Hamid." These and various other notings by P.Ws. Abdul Hamid, Rana Arshad and M.W. Warsi, form part of record of these quashment applications. Underlining at some portions is mine, to highlight the recommendations made by the P.Ws. The letter dated 9-1-1992, addressed by applicant to the Director of Inspection for supply of relevant/requisite information was also drafted by P.W. M.W. Warsi and agreed to by P.W. Abdul Hamid and thereafter approved by applicant. The witnesses, namely, M.W. Warsi and Rana Muhammad Irshad recommended after due scrutiny the sanction of rebate claims on the basis of which applicant sanctioned the claim. No ill-will or mala fide has been shown against the applicant nor it is shown that he was in connivance with the exporters and had for ulterior motive sanctioned the claim which under law he could not do. The report in this case has been lodged by Muhammad Saleem who was Principal Appraiser and is not included in the definition of the Officers of Customs authorised to lodge the F.I.R. Such complaint which is lodged by an incompetent person could not have been made basis of challan of the applicant. Sections 3 and 4 of the Customs Act read with SRO-95(1)/83 dated 12-2-1983 clearly mention the functions of a Customs Officers and their authority to lodge the complaint. Complainant Muhammad Saleem, in my view, was not an officer authorised to lodge the F.I.R. and investigate the case. Some provisions of law may be referred in this respect:

Section 2(aaa)(b) of the Customs Act, 1969 gives the definition of "appropriate officers" as under:

"Appropriate officer in relation to any function to be performed under this Act, means the Officer of Customs to whom such functions have been assigned by or under this Act. `Officers of Customs' means an officer appointed under section 3". SRO-806(11/84: In exercise of the powers conferred by clause (b) of section 2 of the Customs Act, 1969 (IV of 1969), the Central Board of Revenue is pleased to assign the functions of the "appropriate officer", referred to in various provisions of the Customs Act, 1969, given in Column No.2 of the Table below, to the Officers of Customs mentioned in the corresponding entry in Column No.3 of the said Table. The Principal Appraiser shown at Serial No.8 has the powers under section 45 of the Act as shown in Column No.2 of the Table and he did not have the powers to proceed in any matter under section 32 of the Act or to lodge a report in respect of the alleged offences. Chapter II of the Customs Act deals with the appointment of Officers of Customs and their powers." Section 3 of the Act reads as under:

"For the purposes of this Act, the Board may, by notification in the official Gazette, appoint, in relation to any area specified ,in the notification any person to be: (a) A Collector of Customs; ' (aa) A Collector of Customs (Appeals); (b) A Deputy Collector of Customs; (c) An Assistant Collector of Customs; and (d) An Officer of the Customs. The powers and duties of the Officers of Customs defined in section 3 are prescribed in section 4 of the Act. Under SRO-723(1)/84, the Central Board of Revenue authorised the Officers of Directorate of Inspection (Customs and Central Excise) to exercise the_ powers and discharge the duties of the Officers of Customs under the Provisions of Customs Act as are specified in Column (3) the Table appended to the SRO. The Director Inspection (Customs & Central Excise) has the powers to arrest an officer of Customs for whom there is a reason to believe that such person has committed an offence under this Act. But the Director had no powers to restrain the Collector of Customs from examining the case of a duty drawback claim or refund of sales tax as seems to have been done by letter dated 2-1-1992. The simple reason for that is, that Directorate of Inspection is not a part of, but, like a Collectorate, a subordinate office, under the control of Central Board of Revenue. In fact, the Director of Inspection who launched an unauthorised investigation by himself, and not informing applicant about the commission of alleged offence, violated provisions of section 192(1) of the Customs Act. Under section 223 of the Customs Act, 1969, the Officers of Customs employed in the execution of the Act are required to observe and follow the orders, instructions and directions of the Board, provided that such orders, instructions or directions do not interfere with the discretion of the appropriate officers of customs in the exercise of their quasi judicial functions. Assuming that applicant had .full knowledge of contents of letter dated 2-1-1992 of Director of Inspection, and otherwise was not acting on the recommendation of his two subordinates, he was not bound to carry on such instructions in view of his statutory obligations to sanction the claims to the extent of 80% within 72 hours of the filing of claims. As such applicant was under a statutory obligation to sanction at least 80% of the rebate claim after the papers were filed. The letter dated 2-1-1992 of the Directorate of Inspection (Customs Central Excise and Sales Tax) South Zone which was ambiguous and did not give details as to which of the exporters had committed fraud, could not stop the applicant from sanctioning the claim. If the said letter is treated as a restraint on applicant, the two witnesses S. Abdul Hameed who . was Deputy Collector of Customs and M.W. Warsi who was Assistant Collector of Customs would have pointed out to the applicant that the rebate claims in respect of M/s. Charly Interprises was not to be sanctioned as fraud was committed by them in showing the export. These witnesses on the contrary recommended the sanction of claim of exporters by the applicant. Under section 185-A of the Customs Act the Special Judge can take cognizance of any offence punishable under this Act upon a report in waiting made by an Officer of Customs or by an officer-Incharge of a Police Station or by any other officer especially authorised in this behalf by the Federal Government. Under subsection (2) of section 185-A of the Act the Special Judge has to proceed with the trial of the accused but such jurisdiction is subject to his having received report under clause (a) of subsection (1) of said section but in no other case. In the case of Khan Wazeer v. The State 1977 PCr.LJ 93 the proceedings initiated before the Special Judge under the Customs Act were quashed as the complaint was filed by a Sub-Inspector of Police as in that case it was observed that under Customs General Order No.26 of 1975 only the Superintendent of Police was authorised to file a complaint before the Special Judge under subsection (6) of old section 185-A. In the case of Musharaf Khan v. The State PLD 1978 Pesh. 113 the proceedings before the Special Judge were quashed on the ground that though the proceedings were initiated upon the complaint of Superintendent of Police, .who was duly authorised to file 2. complaint before the Special Judge in respect of an offence under the Customs Act, the facts disclosed that the complaint was prepared by the S.H.O. and the Superintendent of Police merely forwarded the same to the Special Judge without applying his mind to the facts of the case. Because the complaint was filed by a person not authorised by law, trial of applicant would be illegal. I do not agree with learned counsel appearing for the State that it was a mere irregularity, curable under section 537 of Cr.P.C. Applicant could not be tried for offence under section 32 of the Customs Act because that section pertains to trial of the exporters or importers who have made either misdeclaration or misrepresentation. The trial of the applicant under that section is also illegal as there is no allegation that he imported or exported certain goods or made misdeclaration. Section 217 of the Customs Act protects actions taken by certain officers/public servants and it reads as under:

"

217. No suit, prosecution or other legal proceedings shall lie against the Federal Government or any public servants for anything which is done or intended to be done in good faith in pursuance of this Act or Rules." "Word "good faith" would mean bona fides or where there is "absence of bad-faith": Clause (20) of section 3 of the General Clauses Act, 1897 defines "good faith". A thing shall be deemed to have been done in "good faith" where it is, in fact, done honestly, whether it is done negligently or not. It is obvious that till the interim challans were submitted on 9-3-1992, there was no evidence with prosecution to include applicant's name in the column of accused. It is long thereafter when statements of P.Ws. S. Abdul Hameed and M.W. Warsi were recorded after more than six months of the F.I.R. that applicant is shown in the final challan as Accused No.1. In the F.I.Rs. no one from the Customs Department was, named as an accused, except the exporters and the clearing and forwarding agent. If the statements of these three witnesses are believed to be true, one would have no hesitation to come to a conclusion that these very witnesses who were entrusted the job of scrutiny of rebate claims, had by their notings, recommended to the applicant to sanction the rebate claim. They should have been joined as accused, rather than having been made witnesses. The mala fide on the part of the investigating officer is obvious, who recorded statements of these three witnesses after 6 months of the F.I.R. and their such statements are made basis of challan of applicant. To me it appears that P.Ws. S. Abdul Hameed and M.W. Warsi were proposed to be joined as accused and were subsequently dropped when they both agreed to give statement against applicant. This is obvious for the simple reason that both these witnesses were all the time available but they gave statements after about 6 months of F.I.R. In the case of Wali Muhammad v. The State 1982.PCr.LJ 798 the evidentiary value of material prosecution witness named in the F.I.R. but whose statement under section 161, Cr.P.C. was recorded after seven days of lodging of F.I.R. and no explanation was offered for such delay, was examined and testimony of such witness was excluded from consideration. In the case of Ismail and 3 others v. The State 1983 PCr.LJ 823 the statement of prosecution witness recorded after delay of eight days from incident and no explanation for such delay came forth, statement of such witness was ruled out of consideration. In the case of Muhammad Iqbal v. The State 1984 SCMR 930 where the statement of witness was recorded 15 or 20 days after incident, it was held that reliability of such witness is always questionable. In the case of Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 (Supreme Appellate Court), it was held that the statements under section 161 recorded by police after delay and without explanation are to be ruled out of consideration. The mala fide of 1.0. is further evident from the fact that although applicant was present at Islamabad and attending his office, he was shown as absconder and N.B.W. was issued against him by the trial Court. The Director General (Mr. S.T.R. Zaidi), in his letter dated 18th March, 1992, which he addressed to Chairman, C.B.R. while dealing with the case under subject, observed at page 3, `the action on the part of the then Collector, Quetta, Mr. M. Nawaz, if not indicative of his involvement in the case, definitely amounts to a highly irresponsible action which jeopardized the Government Revenue.' By this letter, involvement of applicant in the case is rendered doubtful. From the record it also transpires that but for the agreement of Mr. Fariduddin, Advocate/Special Prosecutor, who advised joining of applicant as an accused, the applicant may not have been made accused, for, there was no tangible evidence against him, indicating his involvement in the case. I am not persuaded by the arguments of applicant's learned Advocate that sanction for applicant's prosecution was mandatorily required. The judgments of the Federal Shariat Court and the Supreme Court, whereby section 197 of Cr.P.C. is declared repugnant to Injunctions-of Islam, fully apply to the case of applicant, if he was to be tried for the alleged offence. In appropriate cases, this Court can exercise jurisdiction under section 561-A, Cr.P.C., as the powers of this Court are co-extensive with powers of trial Courts under section 265-K or 249-A of Cr.P.C. Case of applicant is one of such cases, where, instead of directing him to approach the trial Court for his acquittal, jurisdiction under section 561-A, Cr.P.C. can be exercised if it appears that continuance of proceedings would amount to abuse of process of Court. As a result of above discussion, I am of the considered view that continuance of proceedings against the applicant would be abuse of process of Court. The applications are allowed and proceedings pending against him in the Court of Special Judge (Customs and Taxation), Karachi are hereby quashed. The applicant is on bail is discharged of his bail bounds. Before parting with this judgment, I must record a note of appreciation for the learned Advocates, whose assistance enabled me to arrive at the above conclusion. N.H.Q./M-1926/K Proceedings quashed.