Nadeem Ahmed Khan And 2 Others vs The State

ORDER

1. IMAM BUX BALOCH, J. --- Through this common Order, I would like to dispose of two Cr. Misc.

2. Applications bearing Nos. 397/2010 and 44 of 2001, wherein the applicants are the same and have inter alia prayed for quashment of a special case No. 67/99 (Nadeem Ahmed Khan and others) arising out of F.I.R. No. 02/99 under sections 2(37), 3, 6, 7, 11, 14, 15, 22, 23, 26 read with section 34/36 sub-section (1) of the Sales Tax Act, 1990 registered by Assistant Collector Audit Division-I, Sales Tax West, Karachi, In Criminal Misc. Application No. 397/2010 applicants prayed as under:- "it is therefore, prayed that this Hon'ble Court may be pleased to quash the proceedings against the applicants in Special Case No. 67/1999 (Nadeem Ahmed Khan and others) pending before the Court of Special Judge (Customs & Taxation), Karachi and pass any other or further order which this Honourable Court may deem fit and proper."

3. In Criminal Misc. Application No. 44/2011 applicants, however, prayed as under:- "It is therefore, prayed that this Hon'ble Court may be pleased to quash the proceedings against the applicants in Special Case No. 67/1999 (Nadeem Ahmed Khan and others) pending before the Court of Special Judge (Customs & Taxation), Karachi, set aside the impugned order dated 10.01.2011 and pass any other or further order which this Honourable Court may deem fit and proper."

4. The brief facts of the prosecution case are that on information that (a) M/s. Kashmir Plasticizer, 30/2 Bhangoria Town, F.B. Area, Block-2, Karachi, (b) Kashmir Plasticizer Punjab Press Chakiwara, Main Road, Karachi (c) C-5 Jumani Arcade main University Road, Karachi were manufacturing/supplying plastic polyethylene bags/inner liners without having - registration with the Sale Tax Department and without payment of sales Tax levied thereupon. A team under supervision of Assistant Collector, Collection and Enforcement, Collectorate of Sales Tax was formed to investigate the matter the initial enquiry revealed that the accused are engaged in the business since from 1995 without registration with the Sales Tax Department vide partnership deed dated 01.07.1996, two delivery challan books, one having delivery challans No. 151 to 188 issued by Kashmir Plasticizer 30/2 Bhangoria Town, Block-2 F.B. Area, Karachi and the other books from No. 201 to 245 by Kashmir Plasticizer, C-5, Jumani Arcade 3rd floor, Main University Road, Karachi, showing supplies of taxable goods. Another

(i) Box Files 09 Boxes Files (Nine).

(ii) Sales Register One.

(iii) Purchase Register one.

(iv) One file main Nazir & sons.

(v) One file sewage plastic.

(vi) One File Sugar Mills.

(vii) One File Kashmir Sugar Mills.

(viii) One file Pak Saudi Ltd.

(ix) Two contact book S. No. 201 to 250 and 151 upto.

(x) Sales Tax Invoice Books S. No. 1 to 100 issued upto S. No 39 dated 04.02.99.

(xi) Four Books payment voucher.

(xii) One Book Blank Bills, without serial number.

(xiii) 14 100 i.e. Bills/bank vouchers.

(xiv) Statement of account (Bank Statement).

(xv) Loose documents twenty three in numbers.

5. An application under section 265-K, Cr.P.C, was moved in the Trial Court which was dismissed by order dated 10.01.2011, hence the applicants invoked the extraordinary jurisdiction of this under Section 561-A, Cr.P.C.

6. I have heard learned counsel for the applicants and Mr. Mian Khan Malik, DAG. Learned counsel for the applicants contended that since 1999, the applicants are facing trial without any progress, it is further contended that there is no probability of the accused being convicted of any offence as the learned Trial Court has not complied with the provision of Section 265-C, Cr.P.C. He has relied upon Ghulam Qadir Khan v. The State (PLD 1963 (W.P) Lahore 32) & The State v. Asif Ali Zardari and another (1994 SCM R 798). Lastly Mr. Kazi argued that continuation of proceedings in the Trial Court are abuse of process of Court and need interference of this Court by invoking extraordinary jurisdiction of this Court.

7. On the other hand Mr. Mian Khan Malik learned DAG contended that since 1995, the applicants have not paid any sales tax. The case is pending in the Court for trial, it is for the Trial Court to determine whether the applicants have committed any offence or not. The prosecution be given a chance to adduce evidence, it is further contended, that if prima facie an offence had been committed justice required that it should be enquired into and tied. Learned DAG has relied upon the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 S.C 353).

8. I have considered the submissions advanced at the Bar and have gone through the relevant record. Admittedly the applicants are facing trial before a competent Court of law. Charge has been framed and the prosecution has to adduce its evidence and produce documents relating to the charge-sheet. Contention of learned counsel for the. Applicants that provision of Section 265- C, Cr.P.C, have not been complied with and that the accused are facing trial since 1999, all these questions have to be decided by the Trial Court after recording prosecution evidence. If the compliance of provision of Section 265-C Cr.P.C, is not made, the Trial Court is competent to also look on this aspect of the case. Mr. Kazi has relied upon Ghulam Qadir Khan v. The State and The State v. Asif Ali Zardari and another (supra). With all respects on these citations, I am unable to agree with the contention of learned counsel for the applicants as this case pertains to the documents and prosecution has to adduce its evidence. Learned counsel was unable to pinpoint any flaw in the order of the learned Trial Court, In the case of A. Habib Ahmed (supra), the Honourable Supreme Court observed as under:- "The basic rule was laid down by this Court in the well-known case of Ghulam Muhammad v.

9. 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", lt 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."

10. All the points raised before me are to be decided by the learned Trial Court. If the applicants are found innocent they have a right to be acquitted honourably and on the other hand if the evidence against the accused discloses a prima facie case then justice dearly requires that the trial should proceed according to law. The inherent jurisdiction of the "High Court is not an alternative jurisdiction or additional jurisdiction, lt is only in the interest of justice to redress grievances for which no other procedure is available. The powers u/s. 561-A, Cr.P.C., can certainly not be so utilized as to interrupt or diver the ordinary course of criminal procedure as laid down in the procedural statute.

11. For the foregoing reasons, I see no merits in these Applications, which were dismissed by me vide short order dated 28.02.2011. These are the reasons for the same.

12. However, the case pertains to the year 1999, the Trial Court is directed to conclude the trial within a period of 6 months and submit such report with MIT-II of this Court.