2013 P Cr (PLP)

IRFAN SAADAT KHAN, J.

This Constitutional Petition has been filed seeking quashment of F.I.R. No.605 of 2011, dated 26-10-2011 registered at Police Station Jackson, District West, Karachi.

2. Briefly stated the facts of the case are that media highlighted a massive scam regarding pilferage of Afghan Transit Trade (ATT) containers, commonly known as "ISAF Containers Scam'. The Hon'ble Supreme Court of Pakistan vide Suo Motu Case No.16 of 2010 took cognizance of the matter and issued notices to various stakeholders including Federal Board of Revenue (FBR). The Hon'ble Supreme Court then vide its order dated 30-9-2012 directed the Federal Tax Ombudsman (FTO) to conduct an enquiry into the matter and probe the same and to answer as many as 15 questions specifically referred to him in this regard. The FTO thereafter submitted his report and opined that from. January 2007 to October 2010 as many as 7,922 containers never left the Pakistan border meaning thereby that these containers never reached Afghanistan rather the same were pilfered in Pakistan resulting in a loss to exchequer of about Rs. 19 billion. The FTO also detailed the names of the parties involved in such pilferage. The Directorate-General of Intelligence and Investigation, Peshawar, thereafter lodged F.I.R. No.40 of 2010 and assigned the case for investigation to two of its officials namely Mr. Saeed Iqbal, the then Senior Intelligence Officer, and Mr. Jawwad Sultan, Intelligence Officer (the present petitioners Nos.2 and 3). The Chairman, FBR vide Office Order No.2(2)/80-M-I, dated 25-1-2011 constituted a Probe Committee under the Chairmanship of Hafiz Muhammad Anees, a Grade-21 Officer of Customs Services (the petitioner No.1) with the assignment to conduct an enquiry/investigation into the matter in order to initiate criminal proceedings against the delinquent officials of the department and to propose remedial measures. The said petitioner No.l was also made an Incharge of the matters pertaining to recoveries. In the said order officers of the FBR were directed to provide full assistance to the petitioner No.1 in this regard. The said Committee, headed by the petitioner No.1, has submitted eight progress reports in the Hon'ble Supreme Court stating therein that some 28,802 commercial and 3,542 noncommercial containers have not crossed the Pak-Afghan border and were pilfered inside of Pakistan causing a loss of/ revenue of over Rs.55 billion to exchequer. The Probe Committee examined a number of officials while making the probe. Petitioners Nos.2 and 3 after making a thorough probe in the matter prepared a summary of their findings of investigation and highlighted a number of omissions committed during the course of clearance of the containers. Initially the said report only highlighted the violations and but the said report did not indicate as to who were the officials responsible for the said omissions. However, subsequently upon pointation of the petitioner No.1 they added para-6 to their report by clearly identifying the officials responsible for such crime. However, the inclusion of para-6 in the subsequent report was according to the respondents a forgery and thereafter the impugned F.I.R. was registered, which has been questioned in the present proceedings with the following prayer: (i)??????????? Declare that the act of registration of F.I.R. is mala fide, illegal, collusive, without lawful authority/jurisdiction and of no legal effect. (ii)?????????? Direct the respondent No.3 to cancel the impugned F.I.R. No.605 of 2011. (iii)????????? Direct the respondent No.3 to initiate appropriate proceedings against respondent No.4 who has travelled beyond the limits of law and exercised the authority which was not vested in hint. (iv)????????? Any other relief which is deemed appropriate in the facts and circumstances of the case may also be granted.

3. Mr. Sarfaraz Ali Metlo Advocate appeared on behalf of the petitioners and submitted that by no stretch of imagination the said shortcomings, if any, in the previous report dated 22-2-2011 could be termed as forgery and there was no justification to register a F.I.R. in this regard, which patently is illegal and without jurisdiction. Learned counsel submitted that the prime objective of lodging of the F.I.R. was to save the skin of the unscrupulous officials of the Customs Department, who were engaged in the said scam. He submitted that the petitioners have made enquiry and probed into the matter with utmost honesty and diligence and have categorically identified the officials who were responsible for this great loss to the exchequer. He thereafter submitted that the whole purpose of the F.I.R. was to involve the petitioners in a frivolous litigation and to exert pressure on them. He thereafter submitted that the police officials while registering the F.I.R. have also not applied their mind independently and have acted remotely. He further submitted that no enquiry whatsoever has ever been conducted by the police officials from the FBR and has proceeded in an arbitrary manner little realizing the importance of the matter and the specific instructions of the Hon'ble Supreme Court in this regard. Learned counsel further submitted that by simply adding para-6, which was done on the instructions of the petitioner No.1, by the petitioners Nos.2 and 3 to fulfill the shortcoming left in the previous enquiry report could not be considered a criminal illegality to entitle the complainant Mr. Jamshed Ali Talpur, Deputy Collector Customs (the respondent No.2) to have lodged an F.I.R. in this regard. He further submitted that the petitioners enjoy the protection under section 217 of the Customs Act, 1969, according to which any act done in good faith in official capacity no suit would be brought in any Civil Court against them. In the end the learned counsel requested that the said F.I.R. being frivolous and has been lodged to unnecessary harass the petitioners may be quashed.

4. Syed Shafqat Ali Shah Masoomi Advocate, on the other hand, has appeared on behalf of the respondent No.2 and submitted that para-6 has been added with a mala fide intention to involve the respondent No.2 in the probe. He submitted that in the previous report the said, para was not mentioned, however, the same was inserted by the petitioners Nos.2 and 3 on the verbal directions of the petitioner No.1 for some ulterior motives and as respondent No.2 has been seriously prejudiced by the addition of the said para the F.I.R. was rightly registered against the petitioners and the present petition being bereft of any merit is liable to be dismissed in limine.

5. Learned counsel representing the State has adopted the arguments of Mr. Masoomi.

6. We have heard the learned counsel for the parties at considerable length and have perused the record and have found that the original report was vague in a sense that in the said report no proposal was given as to what action should he taken against the delinquent officials, which, in our view, was not in accord with the specific instructions of the Hon'ble Supreme Court, whereas in the subsequent report vide para-6 it has categorically been mentioned that penal action against delinquent officers who were mentioned at Sr. Nos.2, 5, 6 and 8 of annexure "B", all the officials (Principal Appraiser and Appraisers) whose names were given in annexure "C" and officers at Sr. Nos. 1 and 3 of annexure "D" was proposed. In our view the subsequent report is in accord with the mandate given to the petitioners and could not be termed to be either vindictive or tainted with a view to either take revenge or to involve the innocent persons but the main purpose with which the petitioners Nos.2 and 3 were saddled was not only to highlight the reasons of such pilferage but also to identify the officers/officials responsible for such lapse in order to save the national exchequer from loss caused in such smuggling. In our view the previous enquiry report would not fulfill the purpose with which the said enquiry was conducted, if the same did not disclose as to who were the main culprits behind the said pilferage, who had caused such huge loss to the national exchequer. We, therefore, are of the view that the subsequent report could not be termed to be tainted with malice or vindictive in any mariner or aimed against some particular officials but the said para-6, in our view, was added to provide a legal deficiency occurred in the previous report. We, therefore, do not find any justification available with the complainant to register an F.I.R. against the petitioners as the said insertion in our view could not be considered as a fraud and forgery as mentioned in the alleged F.I.R. We specifically asked a question from Mr. Masoomi that whether the report without para-6 could be considered to be a report fulfilling the requirements of a report as specifically required in this regard. Mr. Masoomi though tried to wriggle out the situation however could not controvert the fact that the report was incomplete in a sense that no proposal has been given in the previous report when thereafter vide para-6 was inserted in the subsequent report.

7. In view of what has been stated above, the present F.I.R. No.605 of 2011, dated 26-10-2011 registered at P. S Jackson, District West, Karachi, is hereby quashed. These are the reasons for our short order dated 22-11-2012 whereby, after hearing the learned counsel for the parties, we have quashed the said F.I.R. MWA/M-176/K????????????????????????????????????????????????????????????????????????????????? Petition allowed.