THE STATE vs ASIF ALI and another

ABDUR REHMAN KHAN, J.--- Leave to appeal in this case was granted "to examine firstly whether the High Court was justified within bounds of law to quash proceedings without allowing the trial Court to exercise jurisdiction under section 265-K, Cr.P.C. Towards the same end. Secondly, whether it was a fit case for quashment of proceedings. Thirdly, whether the High Court could allow partial quashment". The petition was barred by time by 37 days but the learned Bench granting leave condoned the delay observing that since it is a criminal matter involving important point of law, therefore, delay is condoned.

2. Complainant Ch. Muhammad Rafique, Inspector, Preventive Services, Custom House reported the occurrence in this case as he had received spy information that a Suzuki bearing number plate CD-1535 was engaged in large scale distribution of smuggled gold and silver in the local market.

Contingent of Customs Staff was deputed on Shahrah-e-Faisal near Hotel De-France. The said Suzuki when appeared was signalled to stop but it increased the speed to escape but was ultimately forced to stop. Muhammad Zahid and Muhammad Zubir were the occupants of the Suzuki and on search of it besides other goods the following incriminating articles were also recovered:--

(a) 245 slabs of Gold, each slab weighing 10 tolas, Total = 2450 tolas, with foreign origin bearing assorted Marks & Nos.

(b) Liquor 6 bottles of one litre each.

(c) 12 Nos. Silver Ingots of foreign original, weighing 443.922 kgs. (nett).

2. Consequently a .Case under sections 164(2)(a), 89, 156(1)(8), 80 and 89 of the Customs Act, 1969 was registered in Drug Enforcement Cell/Headquarter N&B, Wharf Karachi on 4-3-1992. During the investigation the present respondent No,1 was also made accused in the case on account of information of accused Zahid that he was employee of the respondent's brother Maqsood Ali by name at Dubai and often brought permissible limit of gold but he denied the recovery from his possession. On the other hand the case of Asif accused/respondent No,1 was that he was a goldsmith and accused Zahid was brought by the Customs Staff to his house and 240 slabs of gold were recovered from his house but as a goldsmith he could keep this large quantity of gold with him.

3. It is admitted position that the case against the accused/respondent and co-accused Muhammad Zubair was pending trial before the learned Special Judge Custom and Taxation, Karachi when the accused/respondent Asif Ali made an application under section 561-A, Cr.P.C. For quashment of proceedings against him. However, it is amazing that by the impugned order the proceedings in that case were quashed not only against the said accused but also against Muhammad Zahid accused/respondent No,2 while the case against the co-accused Muhammad Zubair was allowed to continue.

3-A. We heard the learned counsel appearing for both sides who referred us to various documents on record in support of their view-point.

4. There is no denying the fact that there are two versions of the precedent incident. The version of the prosecution is that 245 slabs of gold, 12 silver ingots of silver and 6 bottles of liquor (one litre each) were seized from the Zuzuki by the Custom Staff when it had received information that the Suzuki was carrying the said smuggled gold and that the accused Muhammad Zahid and Muhammad Zubair were found in Suzuki at that time. The case of the accused/respondent No,1 is that his brothers are in Dubai and they used to send gold to him through various sources in lawful manner after paying the Government dues etc. And that neither the seized gold were smuggled nor they were taken into possession from the Suzuki but these were taken from his house. This Court while allowing bail to accused Muhammad Zahid in this case had observed: "Now the questions arise whether defence is true or not or documents produced in support thereof are genuine or not. These questions are to be decided by the trial Court, duty of which is to analyse the whole evidence and consider defence plea in juxtaposition with prosecution case, till then it does become a question of further enquiry as is contemplated under section 497, Cr.P.C."

5. It is to be noted that the learned Collector of Customs by order dated 10-10-1993 confiscated the seized gold as is clear from the following portion of his order:- "The aforesaid consideration establishes beyond doubt that the seized goods were imported by Muhammad Zahid and Muhammad Zubair and that they had removed the same from the Customs area unlawfully without the payment of Customs duty and other taxes chargeable thereon. The seized goods are hereby confiscated under section 156(1), clauses 89 and 90 of the Customs Act, 1969. The seized gold was carried by Muhammad Zahid from Dubai in his baggage and the same was to be delivered to Sohail and Asif Ali who are members of the gold smuggling syndicate. A penalty of Rs,1,00,000 (Rs,one Lakh) is hereby imposed each on Sohail, Asif Ali and Muhammad Zubair under section 156(1), clauses (8) and (89) of the Customs Act, 1969. Muhammad Zahid acted as a carrier who was to deliver the said gold to Sohail and Asif Ali. A penalty of Rs,50,000 (Rs,fifty thousand) is hereby imposed on Muhammad Zahid under section 156(1), clauses (8) and (89) of the Customs Act, 1969. The charge that the said vehicle was being used for the transportation of the aforesaid goods is proved. The seized vehicle is hereby confiscated under section 157 of the Customs Act, 1969. The owner is however given an option to redeem the same on payment of a redemption fine of Rs,1,00,000 (Rupees One Lakh"

It is thus clear that it was not possible for the learned Judge to resolve this divergent controversy in exercise of power under section 561-A, Cr.P.C. Without any evidence on record as that was still to be examined by the trial Court. It is admitted fact that the trial was going on when the impugned order was passed. This has been emphasized time and again that powers under section 561-A, Cr.P.C.

Are not meant to stifle the prosecution case but instead it is to be allowed opportunity to prove it.

The present is not the type of case in which the controversy can be resolved from facts patent on record and admitted by both the sides to exist as in such a case the dispute can be determined on admitted facts and if no offence is constituted on the facts appearing on record and not disputed by the parties then powers under section 561-A, Cr.P.C. Can be exercised. The learned Judge has passed the impugned order in haste and at a time when the parties were still to prove the correctness of their version. We therefore, while allowing this appeal set aside the impugned order, remand the case to the trial Court with the direction to proceed with the trial of the accused in the case and to dispose it of within three months from 10th March, 2001.