MUHAMMAD AWAIS VS SPECIAL JUDGE CUSTOMS, 2016 PTD-LAHORE-HIGH-COURT-LAHORE 556 (2015)

(a) Customs Act (IV of 1969)---

----S. 185-A---Cognizance of offence by Special Judge---Scope---No provision existed in Customs Act, 1969 or in general law which empowered Investigating Officer to make an arrest of a witness produced by an accused or named by him/her to disprove the allegation made against him/her---Special Court had no jurisdiction to issue a warrant for arrest of a defence witness at the stage of investigation at the behest of an Investigating Officer.

(b) Criminal trial---

----Falsity of stand of an accused could not absolve the prosecution of onerous responsibility to prove its case nor can an accused or his/her witness be convicted for the sole reason that he/she failed to substantiate his/her defence.

(c) Customs Act (IV of 1969)---

----S.185-A---Cognizance of office by special Judge---In the present case, witness not only filed an affidavit but also furnished documents in support of his statement---Investigating Officer was supposed to verify said documents and to form an opinion whether they were genuine or fabricated---If the Investigating Officer was of the view that authenticity of documents could not be established, he might discard them at his own level, leaving the rest to the Court as and when witness was produced and examined by accused and prosecution would have an ample opportunity to impeach his credit or discredit and expose him---To obtain order of warrant for his arrest to join investigation as was manifest from application moved by Investigating Officer before Customs Judge in the present case, did not sit well with the criminal jurisprudence.

(d) Customs Act (IV of 1969)---

----Ss. 166, 185 & 185-F---Constitution of Pakistan, Arts. 4, 5, 10-A & 199---Law Reforms Ordinance (XII of 1972), S.3, proviso---Intra-court appeal---Powers of Special Judge (Customs)---Scope---Contention of Department was that order passed by Special Judge (Customs) under S.166 and S. 185 of Customs Act, 1969, an appeal/revision was provided to challenge the validity of such an order, thus intra-court appeal was incompetent in view of bar contained in proviso of S.3 of Law Reforms Ordinance, 1972----Held, that impugned order was not passed by any gazetted officer of Customs rather it was the Duty Judge (Customs)---Plain reading of Ss. 166, 185 & 185-F of Customs Act, 1969, banked upon by Department, made it manifest that no power resided in Special Judge (Customs) to pass such an order---Order for arrest of accused having not been passed under Customs Act, 1969, accused was not supposed or bound to challenge the same under S.185-F Customs Act, 1969 rather his challenge to the same was and remained that such order was coram non judice and passed without jurisdiction and without lawful authority and as such was amenable to Constitutional jurisdiction of High Court----Under Art. 4 of the Constitution it was an inalienable right of every citizen to be treated in accordance with law and per Art. 5 of the Constitution, it was inviolable obligation of Investigating Officer and Duty Judge (Customs) to operate within the bounds of law----Article 10-A of the Constitution guaranteed due process of law which reinforced the stance of accused---Intra-Court appeal was, therefore, maintainable.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction High Court---Scope---Criminal Investigation was to be carried out in accordance with law but if an Investigation Officer armed himself with authority and powers not conferred upon him by law of the land, on the strength of an illegal and unlawful order obtained by him by making misrepresentation to the Court; then High Court would be abdicating its jurisdiction by not stopping such Investigation Officer in his tracks and it would be a negation of rule of law---High Court was bound to uphold Constitutional guarantees rather than perpetuating illegalities.

Sardar Muhammad Lateef Khan Khosa for Appellant.

Pervaiz Khan Tanauli Standing Counsel for Pakistan, Farhat Nawaz Lodhi and Muhammad Amin Feroz Khan along with Muhammad Saleem, Inspector Customs in person for Respondents.

Date of hearing: 8th September, 2015.

JUDGMENT

MAHMOOD AHMAD BHATTI, J.---This Intra-Court Appeal has been preferred against the order dated 2.6.2015 passed by the learned Single Judge in Chambers, whereby W.P. No.1388-2015 instituted by the appellant to question the legality, validity and correctness of the order dated 7.5.2015 passed by the learned Duty Judge, Customs, Taxation and Anti-Smuggling, Rawalpindi, allowing the application of the Investigating Officer of case FIR No.10/2015 dated 14.1.2015 registered at Police Station, Investigation and Prevention Model Customs Collectorate (I & PMCC), Mauve Area, Sector G-9, Islamabad for the issuing of a warrant for the arrest of the appellant and Mumtaz Hussain.

2.The facts appear to be straightforward. The above-mentioned FIR was registered against Miss Ayan Ali under sections 2(S), 156 (1)(8)(70), 157, 178 of the Customs Act, 1969 read with Section 8 of the Foreign Exchange Regulation Act, 1947 and Section 3(1) of the ITC Act, 1950. During the investigation, the accused mounted the defence that she had sold 05 open files of 05 plots, located at Midway Commercial, Bahria Town, Karachi to Najeeb Haroon, proprietor of First Choice Real Estate through her representative in Pakistan, Mumtaz Hussain and received an amount of Rs.51,693,600 equivalent to 506,80 U.S. $. Najeeb Haroon, the aforementioned had, in fact, made a purchase of the files for Muhammad Awais, the present appellant. It is pertinent to mention that this very currency in dollars was recovered from Miss Ayan Ali at Benazir Bhutto Shaheed International Airport, Islamabad. Allegedly, she was to smuggle this currency from Pakistan to Dubai (U.A.E).

3.While investigation of the aforesaid case was under way, the appellant submitted a statement in writing to the Investigating Officer of the case, setting out the details as to how he was persuaded by Najeeb Haroon stationed in Rawalpindi to make an investment in the real estate. Meanwhile, the appellant left Pakistan for Dubai (U.A.E.). An interim challan was prepared by the Investigating Officer on 24.4.2015, in which he recounted the events leading to the arrest of Miss Ayan Ali and the defence taken by her.

4.On 7.5.2015, the Investigating Officer moved an application before the learned Special Judge Customs, Taxation and Anti-Smuggling, Rawalpindi. As he was on leave, the application was put up before the Duty Judge, who, as stated above, allowed the application for the issuance of a warrant for arrest of Mumtaz Hussain and Muhammad Awais, the present appellant vide order dated 7.5.2015.

5.The appellant challenged the vires of the aforesaid order dated 7.5.2015 by instituting Writ Petition No.1388-2015, which was dismissed by the learned Single Judge in Chambers by the order dated 2.6.2015. Feeling aggrieved, the appellant has filed the instant ICA.

6.In support of the appeal, the learned counsel for the appellant has submitted that the appellant is not an accused in the aforementioned FIR. It is stressed by him that he was not shown as co-accused in the interim challan submitted to the Court of the Special Judge Customs, Taxation and Anti-Smuggling, Islamabad. It is vehemently argued by him that the application moved by the Investigating Officer of the case was actuated by malice. To reinforce his submission, he invited the attention of the Court to the contents of the application, in which the appellant and Mumtaz Hussain have been repeatedly mentioned as an accused. He has made the argument that at best, the appellant may be treated as a defence witness. He wondered aloud as to under which provision of either the Customs Act, 1969 or the Criminal Procedure Code, 1898 or Police Rules, 1934 for that matter, a warrant for arrest of a witness could be issued? He has questioned the legality of the order dated 2.6.2015 passed by the learned Single Judge in Chambers. It is urged by him that the appellant was not hampering or thwarting the investigation and there was no basis whatsoever to make an observation that if the order passed by the learned Special Judge Customs, Taxation and Anti-Smuggling, Rawalpindi was interfered with, it would amount to frustrating the process of investigation.

7.Conversely, a Standing Counsel for Pakistan, duly assisted by the private counsel engaged by the respondents has defended the impugned order passed in W.P. No.1388-2015, besides justifying the passing of the order dated 7.5.2015 by the Duty Judge, Customs, Taxation and Anti-Smuggling, Rawalpindi. Each of them spoke at length. They were heard to their satisfaction. To buttress their arguments, they heavily relied upon the provisions of Section 166 of the Customs Act, 1969. It is vociferously argued by them that the learned Special Judge Customs, Taxation and Anti-Smuggling, Rawalpindi was vested with all the powers to either issue summons or a warrant to procure the attendance of any person. According to them, this was exactly intended to be achieved by the order dated 7.5.2015. It was rhetorically asked by them what was to be done by the Customs Judge when he was presented with the evidence that the appellant and Mumtaz Hussain were involved in the laundering of money. It was maintained by them that without procuring their attendance, the investigation of the case would not be completed and it would be well-neigh impossible to submit a complete challan so as to bring the guilt home to the accused. Last but not least, they have come up with the plea that this I.C.A. is not maintainable in view of the proviso to Section 3 of the Law Reforms Ordinance, 1972.

8.We have heard the learned counsel for the parties and perused the record with their assistance.

9.We have repeatedly asked whether the appellant is an accused or a co-accused or shown so in the interim challan or recorded so in any case diary, the answer from the respondents side was a big No . There is no provision in the Customs Act, 1969 or in the General Law (Code of Criminal Procedure, 1898) empowering the Investigating Officer to make an arrest of a witness produced by an accused or named by him/her to disprove the allegation made against him/her. Again, we have searched in vain to find any such provision in the law of the land, investing a Court/Special Court with the jurisdiction to issue a warrant for the arrest of a defence witness at the stage of investigation at the behest of an I.O. It is unclear whether the learned Special Judge Customs, Taxation and Anti-Smuggling, Rawalpindi has taken cognizance of the case in terms of Section 185-A of the Customs Act, 1969 or not. Therefore, it is too early to speak of the commencement of trial. Had the evidence for the prosecution concluded and the accused entered upon her defence, and furnished a list of witnesses sought to be produced by the assistance of the Court, even then the witnesses are to be summoned by serving a summons upon him/them, but the ordering of the arrest of a defence witness straightway is completely unheard of.

10.It is well-established law that the falsity of the stand of an accused would not absolve the prosecution of the onerous responsibility to prove its case nor can an accused or his/her witnesses be convicted for the sole reason that he/she failed to substantiate his/her defence.

11.In the instant case, the appellant not only filed an affidavit, but also furnished documents in support of his statement. It is for the Investigating Officer to verify those documents and to form an opinion whether they are genuine or fabricated. If he is of the view that their authenticity could not be established, he might discard them at his own level, leaving the rest to the Court concerned as and when the appellant is produced and examined by the accused. Should this happen, the prosecution would have an ample opportunity to impeach his credit to discredit and expose him, but to obtain an order of warrant for his arrest to force him to join the investigation, as is manifest from the application moved by the I.O. before the learned Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi, does not sit well with the jurisprudence of this country.

12.Aside from the fact that the learned Special Judge Customs, Taxation and Anti-Smuggling, Rawalpindi went beyond his jurisdiction to pass the order dated 7.3.2015 impugned in the writ petition, his order is liable to be struck down for another reason. On the face of it, it is a non-speaking 5-line cryptic order passed in contravention of Section 24-A of the General Clauses Act, 1897. The very fact that the appellant was regarded as an accused without any basis whatsoever shows the lack of application of mind. Even if he was misled by the application moved by the I.O. in which the appellant was described as an accused, it was imperative for him to put a few simple questions to him before making the order in a slipshod and mechanical manner. Ironically, there is no allegation of money-laundering against the accused, but this was made the sole basis to obtain order of warrant of arrest the arrest of the appellant.

13.We would also like to address the preliminary objection raised by the respondents side as to the maintainability of the Intra-Court Appeal. This objection proceeds on the assumption that the order dated 7.5.2015 was passed by the learned Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi under section 166 of the Customs Act, 1969 and that under section 185 of the Act, an appeal/revision is provided to challenge the validity of such an order. This being so, this I.C.A. is incompetent in view of the bar contained in the proviso to Section 3 of the Law Reforms Ordinance, 1972.

14.In order to comprehend the argument put forward by the respondents, it would be advantageous to reproduce hereunder the relevant provisions of law. Section 166 of the Customs Act, 1969 reads as under:--

166. Power to summon persons to give evidence and produce documents or things.---(1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry which such officer is making [*****].

(2)A summon to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.

(3)All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statement and produce such documents and other things as may be required;

Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to any requisition for attendance under this section.

(4)Every such inquiry as aforesaid shall be deemed to be judicial proceeding within the meaning of section 193 and section 228 of the Pakistan Penal Code, (Act XLV of 1860).

Section 185-F of the Customs Act, 1969 runs as under:--

185F. Appeal to Special Appellate Court.---(1) Any person, including the Federal Government 28[the 28a[Board], the Collector of Customs 28b[or Director of Intelligence and Investigation] or any other officer authorized in this behalf by the Board], aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure,1898 (Act V of 1898), may, subject to the provisions of Chapters XXXI and XXXII of the Code, within [sixty days] from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.

(2)Except as otherwise provided in subsection (1), the provisions of the Limitation Act, 1908 (Act IX of 1908), shall apply to an appeal or a revision preferred under subsection (1).

The proviso to Section 3(2) of the Law Reforms Ordinance, 1972 lays down that:--

Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article (199) arises out of any proceedings in which the law applicable, provided for at least one appeal (or one revision or one review) to any Court, Tribunal or authority against the original order.

15.Reference to and reliance upon Section 166 of the Customs Act, 1969 is inapt, to say the least inasmuch as the order dated 7.5.2015 was not passed by any Gazetted Officer of Customs, rather it was made by the learned Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi. A plain reading of the relevant provisions of the Customs Act, 1969 banked upon by the respondents makes it manifest that no power is resided in the learned Special Judge Customs, Taxation and Anti-Smuggling, Rawalpindi to pass an order of the nature of the one dated 7.5.2015. We have no hesitation in holding that the impugned order dated 7.5.2015 ordering the arrest of the appellant was not passed under the Customs Act, 1969. Taking it to its logical end, the appellant was not supposed or bound to challenge it under section 185-F of the Customs Act, 1969. His challenge to it was and remains that this order was coram non judice and passed without jurisdiction and without lawful authority and as such was amenable to writ jurisdiction. After all, under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the inalienable right of every citizen to be treated in accordance with law and under Article 5 thereof, it was the inviolable obligation of the I.O. and the Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi to operate within the bounds of law. Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 guaranteeing due process of law reinforces the stance of the appellant. When the order dated 7.5.2015 was non est, it was rightly called into question by instituting a writ petition. No amount of logic can be pressed into service that if the appellant could not persuade the learned Single Judge in Chambers to hold it non est, it would be blessed with legality, barring the appellant to assail it further by means of an Intra-Court Appeal.

16.With utmost respect to the learned Single Judge in Chambers, he fell in error in holding that if the order dated 7.5.2015 passed by the learned Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi was interfered with, it would amount to hampering, obstructing or frustrating the investigation. It goes without saying that investigation is to be carried out in accordance with law, but if an I.O. arms himself with authority and powers not conferred upon him by the law of the land, on the strength of an illegal and unlawful order obtained by him by making a misrepresentation to the Court concerned, the High Court would be abdicating its jurisdiction by not stopping him in his tracks. If anything, it would be a negation of Rule of law. Bound as we are, we would prefer to uphold the constitutional guarantees, rather than perpetuating illegalities. It bears repeating that the Investigating Officer had misled the learned Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi. It was indicated to him that the appellant is an accused in the case and involved in money-laundering. As spelt out in detail in the preceding paragraphs, it was confirmed by the learned counsel for the respondents as well as the I.O. present in the Court that the appellant does not fall in any of the aforementioned categories. If the Investigating Officer is really interested in getting at the truth, he might complete investigation without navigating in uncharted waters.

17.For what has been stated above, this Intra-Court Appeal is allowed and the order dated 2.6.2015 passed by a learned Single Judge in Chambers is set aside. Consequently, Writ Petition No.1388 of 2015 is allowed and the impugned order dated 7.5.2015 passed by the learned Duty Judge Customs, Taxation and Anti-Smuggling, Rawalpindi is hereby declared to be illegal, unlawful, non est, void ab initio and having no legal effect.

RR/M-327/LAppeal accepted.