2002 PLP 971 (YLR)

S. AHMED SARWANA, J‑‑‑This petition is directed against the validity of Interim charge‑sheet dated 19.7.1999 tiled on the basis of F.I.R. No. SCSO‑1 of 1999 under section 2(s) punishable under clause (8) of section 156(1) read with section 178 of the Customs Act, 1969 pending before the Special Judge, Customs and Taxation, Karachi. The brief facts of the case are that F.I.R. No.SCSO‑1 of 1999 was lodged on 22‑3‑1999 under section 2(s) for the offence of smuggling punishable under Clause 8 of sub‑section (1) of section 156 of the Customs Act, 1969 Interim charge‑sheet was filed before the Court of Special Judge, Customs and Taxation. Karachi on 19‑7‑1999 after about four months in Case No.81 of 1999 Cognizance was taken by the learned Special Judge, Customs and Taxation, Karachi, vide order dated 19‑7‑1999. Petitioner was granted pre‑arrest bail. Mr. Syed Sami Ahmad, learned counsel for the petitioner has argued that the charge‑sheet submitted before the Trial Court against the petitioners is in violation of the provisions of the Code of Criminal Procedure. He placed reliance on the proviso to section 173(1), Cr.P.C providing for 14 days and additional 3 days in case of non‑completion of investigation, making a total period of 17 days for filing the report/challan before a Magistrate. In support of his arguments, learned Advocate referred to the cases of Asma Khatoon v. Syed Shabbir Hussain Shah, (PLD 1996 Karachi 517) and Mooso v. The State (1996 PCr.LJ 361). On the point of maintainability of this petition the learned counsel referred the case of Nagina Silk Mill v. the Income Tax Officer (PLD 1963 SC 322) and Murree Brewery Co. Ltd. v. Pakistan (PLD 1972 SC 279). The learned Standing Counsel, Syed Tariq Ali commended that the offence falls under the provisions of Customs Act, 1969 which is a special law and in this connection he referred to section 185‑A of the said Act. He further stated that alternate remedy by way of an application under section 265‑K. Cr.P.C. before the Trial Court and then under section 561‑A, Cr.P.C. in this Court is available to the petitioner and that the petitioner had already moved an application under section 265‑K which is pending before the learned Trial Court. In support, he relied upon the decision in the case of A. Habib Ahmad v. M.K.G. Scott Christian (PLD 1992 S.C. 353), wherein the Honourable Supreme Court has observed as follows: "The basis rule was laid down by this Court in the well‑known case of Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) and it was ruled that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "honourably acquitted by a competent Court". On the other hand if the evidence against the accused discloses a prima facie case then "justice clearly requires that the trial should proceed according to law". It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561‑A, Cr.P.C. it was held can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute". Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561‑A, Cr.P.C. The order of the High Court quashing the proceedings before the Trial Court was set aside and it was directed that criminal cases were to proceed before the Court concerned in accordance with the normal law. The afore‑stated view and principle was reiterated by the Supreme Court in other case as well, which came before it through the jurisdiction of writ jurisdictions. See Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522) and Abdul Aleem v. Special Judge (Customs), Lahore (1982 SCMR 73). The case of Abdul Aleem arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A criminal revision filed by him having been dismissed he sought relief for quashment of the criminal case through writ petition and the same had to be dismissed mainly on the ground that the High Court would not "in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law. " We have heard the arguments advanced by all the learned counsel in the matter. It would be advantageous to refer to another judgment which is relevant for the purpose of disposal of this case, which is the case of Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275), in which the Honourable Supreme Court of Pakistan observed as follows:‑‑‑ "Ordinarily High Court does not quash proceedings under section 561‑A, Cr.P.C. unless Trial Court exercises its power under section 249‑A or 265‑K which are incidentally of the same nature and in a way akin to and co‑related with quashment of proceedings as envisaged under section 561‑A, Cr.P.C. In exceptional cases High Court can exercise jurisdiction under section 561‑A, Cr.P.C. without waiting for Trial Court to pass orders under section 241‑A or 261‑K, Cr.P.C. if the facts of the case so warrants to prevent abuse of the process of any Court or otherwise to secure the ends of justice." The Honourable Supreme Court reiterated the above principle of law in the case of Altaf Hussain v. Abdul Samad and 3 others, 2000 SCMR 1945) in the following terms:‑‑‑ "14. Mr. Muhammad Ilyas Khan, learned counsel for the petitioner was at pains to persuade us that by quashing criminal proceedings against the private respondents High Court acted against the settled norms and principles laid down by this Court for quashment of case. He relied upon Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) expressing the view that the inherent jurisdiction given by section 561‑A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. This Court observed that the power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedure statute. This case has been followed in subsequent cases laying down the principles for quashment of proceedings in exercise of the powers conferred on the High Court under section 561‑A, Cr.P.C. Similar view was expressed in Fazal Karim v. State (PLD 1976 SC 461), Mahmood Saeed v. Amir Nawdz Khan (1996 SCMR 839) and State v. Asif Ali Zardari (1994 SCMR 798)". In view of the above state of the law, it is not necessary to discuss the cases cited by the learned counsel. We are of the opinion that this is not such an exceptional case where the High Court should exercise its Extraordinary Constitutional jurisdiction to interfere with the ordinary proceedings pending in Court and that the petitioner must follow the ordinary course as laid in the Criminal Procedure Code. It is an admitted position that the petitioner has tiled an application under section 265‑K, Cr.P.C. before the Court of Special Judge (Customs and Taxation) at Karachi. Accordingly, this Petition 'is dismissed alongwith the 'listed Miscellaneous Application with the direction to the learned Special Judge (Customs and Taxation) Karachi to dispose of the application moved by the petitioner under section 265‑K, Cr.P.C. within thirty days from the date of the receipt of this order. There shall be no order as to costs. H.B.T./W‑28/K Petition dismissed.