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Petitioner: SHAKOOR ALAM VS Respondent: DIRECTORATE OF INTELLIGENCE AND INVESTIGATION FBR
Court Name: Customs Appellate Tribunal Judge(s): Muhammad Nadeem Qureshi, Ch. Naimat Ullah, Ghulam Ahmed Title: SHAKOOR ALAM vs DIRECTORATE OF INTELLIGENCE AND INVESTIGATION FBR Case No.: Customs Appeals Nos,K-610 to 640 of 2011 Date of Judgment:2013-08-15 Reported As: 2014 PTD (Trib.) 618 Result: Order accordingly
Judgment ORDER GHULAM AHMED MEMBER (TECHNICAL-II).---By this order, we intend to dispose of Customs Appeals Nos, K-610 to 640/2011 filed by the appellant against Order-in-Appeals Nos,5166 to 5196/2011 dated 18-4-2011 passed by the Collector of Customs, (Appeals) Karachi: These appeals have identical issues of law and facts and are, therefore being heard, dealt with and disposed off simultaneously through this common order in the light of judgment of the Hon'ble High Court of Sindh in Custom Reference Application No, 157 of 2008 S.M. Naqi son of Syed Muhammad Hussain, Karachi v. Collector of Custom (Adjudicaiton-1) and others, Karachi. 2. Brief, facts of the case as stated in the impugned order are that the Directorate General of Intelligence and Investigation-F.B.R (hereinafter the Directorate General) had reported that Messrs Malik Enterprises, D-49, Aisha Heights, Gulberg, Lahore had fraudulently, cleared a number of consignments of miscellaneous items including electronic goods imported in 5 containers from Port Muhammad Bin Qasim against fake and fictitious Goods Declaration without payment of duty and taxes leviable thereon. In pursuance of the above mentioned information, efforts were made to procure the relevant records pertaining to clearance of containers imported by Messrs Malik Enterprises, D-49, Aisha Heights, Gulberg, Lahore, from the Terminal Operators, Messrs DP World QICT, and Messrs Pakistan Revenue Automation Ltd. Messrs DP World, QICT provided the computer generated print-out of Gate Passes bearing Sr. Nos, 1422601, 076749, 076751,076747, 076752, along with photocopy of Goods Declaration bearing Cash No, 328, dated 3-5-2007, showing clearance of 5 x 40ft containers bearing Nos, NYKU553265-9, NYKU-559065-5, NYKU 581965-4, NYKU-582041-8, NYKU-621643-9, said to contain 4259 cartons of Electronic Goods. The Terminal Operator also provided copy of Delivery Order, dated 1-3-2007, issued by Messrs James Finlay Ltd., in favour of
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Messrs Malik Enterprises, D-49, Aisha Heights, Gulberg, Lahore, wherein Messrs Al-Mehran Traders, Karachi were authorized to take delivery of the aforesaid containers. The concerned/shipping company, Messrs NYK Lines, was also approached to procure relevant shipping documents pertaining to the aforesaid consignment. The said shipping company provided copy of Bill of Lading No, NYKS-4 79270034 showing name of consignee as Messrs Malik Enterprises, D-49, Aisha Heights, Gulberg, Lahore, and descriptions of goods as 4259 cartons of electronics goods in five containers. The shipping company also provided copy of import invoice, dated 15-2-2007, showing import value of 4259 cartons of Electronic Goods as US$ 12777 and copy of delivery order, dated 1- 3-2007, in favour of Messrs Al-Mehran Traders on behalf of the importer, Messrs Malik Enterprises. The company also provided shipping dues payment receipts in respect of the fine containers. In order to further confirm the veracity of the aforesaid information pertaining to fraudulent/clandestine removal of containerized cargo arriving from foreign destinations at QICT, Karachi, the Directorate General, vide letter C. No, 34-CII Misc/Appg-III0718608, dated 20-10-2007, approached the Collector, Collectorate of Customs, Port Muhammad Bin Qasim, Karachi with the request to supply the copies of Goods Declarations, Invoices, Bills of Lading and Packing Lists' in respect of the consignments pertaining to the said containers of Electronic Goods imported by Messrs Malik Enterprises, Lahore and cleared from the Port Qasim Collectorate. Similarly, Manager, National Bank of Pakistan, Custom House Branch, Karachi was also requested vide letter C.No, 34- DCIIMisc/Appg-II/0718672, dated 29-10-2007, to confirm and verify the genuineness of bank stamps/signatures affixed on the face of copies of GDs and payment of duty and taxes in the National Exchequer. In response, the Collector, Collectorate of Port Muhammad Bin Qasim, Karachi, vide letter C.No, SIIMisc/15/2007/PQ-Import, dated 15-11-2007, intimated that the clearance of containerized cargo was the domain of Model Customs Collectorate (PaCCS), Custom House, Karachi. However, the import statistics of the Collectorate with reference to the particulars of Goods Declaration, viz-a-viz, IGM No, and date mentioned in the above referred letter were checked by the Port Qasim Collectorate which revealed that the same were not cleared through the said Collectorate, meaning thereby that no Goods Declarations were, in fact, filed for Customs clearance of the aforesaid five containers in the MCC (Port Qasim), Karachi. The Operation Manager, National Bank of Pakistan, Custom House Branch, Karachi, vide letter No, CHB/ Admn/2007, dated 31-10-2007, intimated that the cash Nos, supplied by the Directorate General including Cash No, 328, dated 5-3-2007, shown on the goods Declaration of Messrs Malik Enterprises, Lahore, contained forged stamps and signatures on the challans. The Manager Operations, (South), PRAL, vide letter No PRAL/KhiiCus/10966, dated 14-11-2007, forwarded a report showing information of relevant Import General Manifest which were found in Customs Computer Database. From the scrutiny of the said report, it was found that no "Gate Out event took place against the listed indexes and no GDs were filed/ processed against the same. It was specifically intimated by PRAL that the gate out programme does not allow any consignment/container to be delivered without filing/processing of a Goods Declaration and without completion of all Customs pre-requisites, such as payment of duties/taxes, etc. Perusal of the GD bearing cash No, 328 revealed that neither IGM Number and date, nor Index No, had been indicated in column 8 of the GD. The Customs Machine Number was endorsed thereon, which was essentially required for filing of Goods Declarations. In order to further verify the genuineness of the GD bearing cash No,328, dated 5-3-2007, statements of Customs Officers, namely, Mr. Abdul Rehman Kurd, Principal Appraiser, and Mr. Gul Muhammad Jokhio, Apprising Officer, Collectorate of Customs, Port Muhammad Bin Qasim,. Karachi were also recorded as their stamps and signatures appeared on the GD. It was stated/confirmed by the said officers that neither they processed the aforesaid GD nor it bore their signatures. According to their statements, the GD bore their fake and forged signatures and stamps. From the preliminary investigation, it transpired that neither any Goods
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Declaration was filed by Messrs Malik Enterprises, Lahore through Messrs N.J International, CHAL No, 2392, Karachi nor duty and taxes shown as Rs,792,456 were paid vide cash No,328, dated 5-3-2007, in the National Bank of Pakistan, Custom House Branch, Karachi. It is relevant to add here that from the scrutiny of the computer print-out supplied by the Manager Operation (South), PRAL, Custom House, Karachi, it transpired that the consignment imported vide IGM No, KPQI 182 of 2007, dated 28-2-2007, Index No,47, VIR No, 1355-2202007, imported by Messrs Malik Enterprises, Lahore was manifested for transshipment to Lahore Dry Port, Lahore through Pakistan Customs Computerized System (PaCCS) in the Model Custom Collectorate (PaCCS), Custom House, Karachi. Subsequent to the fraudulent removal of the said consignment on 6-3-2007 on the basis of fake and fictitious Goods Declaration Cash No,328, dated 5-3-2007, the Transshipment Permit No, 1309, dated 8-3- 2007, was manifested with the Model Customs Collectorate (PaCCS), Custom House, Karachi to avoid detection of fraudulent removal of consignment and consequential penal action. Thus, the respondent, Messrs Malik Enterprises, Gulberg Lahore, with the active connivance of respondent Jamal Durrani son of Javed Durrani and Naila Jamal, partner of Messrs N.J International, CHAL No,2392, and other associates in crime, had indulged in the heinous crime of fraudulent and illegal removal of containerized goods from QICT, Karachi, by abusing the Pakistan Customs Computerized System (PaCCS) and had, therefore, defrauded the state exchequer in violation of the provisions of sections 16, 32(1), (2), 32-A, 79, 80 and 178 of the Customs Act, 1969 punishable under clauses (9), (14), (14-A) (43), (47) of subsection (1) of section 156 ibid. Jamal Durrani son of Javed Durrani was then under judicial custody at Peshawar in case F.I.R. No,1/08, dated 4-1-2008, lodged against him and others by the staff of the Directorate General in case of missing transshipment containers destined to upcountry Dry Ports. Subsequent to the lodging of F.I.R., the scope of investigation was broadened and the preliminary statement of Jamal Durrani son of Javed Durrani, who was then under judicial custody at Central Prison, Peshawar in connection with an another F.I.R. lodged against him by the staff of the Directorate General was recorded at Central Prison, Peshawar. During recording of statement, he disclosed that he was engaged in the business of working as Customs Clearing and Forwarding Agents for the last sixteen years. Since 1992-93 up to 2005, he remained partner of Messrs Durrani Traders, Customs Clearing and Forwarding Agent, CHAL No, 1469, Karachi, which was owned by his father. However, in March 2006, he established a new Clearing and Forwarding Agency, namely Messrs N.J. International, Karachi, CHAL No, 2392, Karachi through a partnership deed signed by him and his wife Naila Jamal. Both of them used to give copies of blank Goods Declaration duly signed to one, Naeem Qurehi, and various other persons, for clearance of imported goods against receipt of Rs,1000 per G.D. In the meantime, his wife Naila Jamal established close relationship with Naeem Qureshi Consequently, his wife separated from him and manied Naeem Qureshi. As far as the matter of clearance of 10 containers imported by Messrs Malik Enterprises, Lahore and fraudulently cleared from Port Muhammad Bin Qasim, Karachi against fake and fictitious Goods Declaration through Messrs N.J. International, CHAL No, 2392, Karachi without payment of leviable duty and taxes was concerned, he said he had nothing to do with the affairs of the aforesaid Clearing and Forwarding Agency. According to him, the fraudulent clearance of aforesaid 10 containers had been done by his ex-wife, Naila Jamal/and Naeem Qureshi, who had married on 28-2-2007. Moreover, respondent Jamal Durrani absconded after getting transit bail from the Honourable Court of Session Judge, Peshawar on 23-6-2008. Subsequently, Messrs DP World, Terminal Operator, QICT, also provided photocopies of import/clearance documents pertaining to the consignment of five more containers out of 10 containers imported by Messrs Malik Enterprises, Lahore. Messrs DP World, Q.I.C.T, provided the computer generated print-out of Gate Passes bearing Sr. Nos, 1422609, 1422593, 1422392, 1422597, 1422591, along with photocopies of Goods Declarations bearing cash No, 330, dated 26-2-2007, C- 338, dated 20-2-2007, C-624, dated 15-3-2007, C-337, dated 26-2-2007 and C-329, dated 26-2-
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2007, showing clearance of 5 x 40ft Containers Nos, TCNU-909405, MSKU9551503, FSCU-6529074, NYKU-5952538 and NYKU-5954612, said to contain .682 Cartons, 979 Cartons, 654 Cartons, 666 Cartons and 656 Cartons, respectively, said to contain Electronic Goods. The Terminal Operator also provided copies of Delivery Orders issued in favour of Messrs Malik Enterprises, Lahore by Messrs James Finlay Ltd., and Messrs Maersk Line Pakistan, Karachi, whereby the aforesaid importing company authorized Messrs Al-Mehran Traders, Karachi to take delivery on their behalf. It is pertinent to mention here that details obtained from Messrs PRAL showed that TP Nos, 1307, dated 6-3-2007, 1308, dated 6-3-2007, 1310 dated 6-3-2007, 1311, dated 6-3-2007, and 2018, dated 17-3-2007, were allocated to the remaining 5 containers out of 10 containers for transshipment to Lahore and were meant to be cleared at Lahore Dry Port. However, these containers were clandestinely removed from QICT on the basis of fake and forged documents with active connivance of every member of this organized crime. Subsequent to the filing of Interim Challan, the Honourable Special Judge (Customs and Taxation), Karachi issued non-bailable warrant of arrest against Muhammad Naeem son of Muhammad Rustam Qureshi. On receipt of a tip, he was arrested on 26-04-2008 while he was driving a Honda City Car bearing Reg. No, AJZ-238. At the time of his arrest, the personal search as well as of the said Honda City Car was carried out in presence of witnesses, namely, Mr. Muhammad Sadiq, Intelligence Officer, and Mr. Abdul Rasheed, Intelligence Officer, which resulted in the recovery of various incriminating documents/evidences including Passport, cheque books issued by various banks in the name of Muhammad Naeem, and notice sent to Messrs Kashan Traders/importer criminally involved in F.I.R. No, Appg-II/34- F/DCl/Misc/2007, dated 15-4-2008, which proved his direct involvement in the crime. The recovered documents as per inventory duly signed by the respondent and witnesses were seized against mushirnama. The vehicle bearing Regn. No, AJZ-238 was handed over to the claimant, namely, Munir Ahmed Hashmi in compliance of the Court order, dated 14-5-2008. During interrogation, Muhammad Naeem disclosed that he was working in the capacity of Manager in Messrs Amex International and Logistics Trading, Karachi, and that the head office of the company was situated at Islamabad. The said firm was clearing the containers of US & NATO Forces operating in Afghanistan through the clearing and forwarding agency Messrs N.J. International, CHAL No, 2392, Karachi. He opened Account No, 6112-349072-050 in the Standard Chartered Bank, Korangi Industrial Area, Karachi. During the year 2006, Faisal Shezad son of Sajjad Haider Awan, his childhood friend, approached him and devised a plan to fraudulently clear the containerized import cargo in the name of various importers from QICT, Karachi on the basis of bogus and fabricated Goods Declarations without payment of duty and taxes. Consequently, respondent Faisal Shezad and Naeem Qureshi contacted phony and dubious firms of Lahore, Karachi, Peshawar and Faisalabad, etc. for this purpose. The modus operandi for illegal removal of the container was also discussed, wherein the bill of lading/invoices were to be supplied to Muhammad Naeem for further fabricating, manipulating, processing, and clearance of the containerized cargo. In sequel to the settlement of modalities of clandestine removal of containers, Faisal Shezad sent Millions of Rupees through his bank Account No, 7405355985-050 of Union Bank (Standard Chartered Bank), Shadman Branch, Lahore, and also through online deposit in Naeem Qureshi's Bank Account Nos, 6112-349072-050 (Messrs Imex International Logistic), Account No, 6112-349414-053, (US $ Dollar Account) of Standard Chartered Bank, Korangi Branch, Karachi No, 6105-374326-050 of Standard Chartered Bank, 26th Street, DHA, Karachi, account No,6208- 197915-001, Standard Chartered Bank, I.I. Chundrigar Road, Karachi, all in the name of Muhammad Naeem Qureshi, and Account No, 6105-252546-050, opened in the name of Messrs N.J. International, Karachi from time to time. During the course of investigation, Notices under section 26 of the Customs Act, 1969 were issued to the Managers Standard Chartered Bank, Karachi requiring them to provide information/particulars of accounts along with bank statements,
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account opening form, and CNIC of introducers of bank accounts in respect of the said accounts. In response, the aforesaid banks supplied the requisite information in respect of Account No,6112- 349414-053, 6112-349072050, 6208-197915-001 and No, 6105-374326-050. From the scrutiny of bank statements, it transpired that during the period 1-10-2006 to 17-9-2008, an amount of Rs,106,703,375 was credited in Account No,6112-349072-050. Similarly, during the period 17-5-2007 to 17-9-2007 an amount of Rs,14,291,210 was credited in account No, 6105-374326-050, and Rs, 11,558,267 in account No, 6208-197915-001 whereas, US $ 7613 were credited in account No, 6112- 349414-053. The involvement of Muhammad Naeem in the crime stood established from the fact that he established his own importing firm, namely, Messrs Al-Huraim International, Karachi, and also opened Account No, 6112-349072-050 in the name and style of Messrs Imex International Logistics Trading, Karachi, whereby the business addresses of both the aforesaid firms had been shown as 1-Marium Palace, Bohri Road, Opp. New Custom House, Karachi, which as per record of the licensing authority (Collectorate of Customs, (Appraisement), Custom House, Karachi) was the business address of Messrs N. J. International, CHAL No, 2392, Karachi, whose numerous Goods Declarations were used by Muhammad Naeem and others, namely, Babar Hussain, Farhan Ibrahim, Naila Jamal and Jamal Durrani, for the fraudulent clearance of containerized Cargo from QICT, Karachi. In order to operate the business of illegal removal of containerized cargo from QICT, Muhammad Naeem supervised the racket from his office situated at Office No,1, Marium Palace Bohri Road, opposite Custom House, Karachi. He detailed two of his close associates and his employee, respondent Babar Hussain son of Adalat Hussain, and Farhan Ibrahim, (correspondent), to whom he used to hand over the copies of bill of ladings/invoices received from Faisal Shezad from Lahore for further processing at QICT, Karachi. Upon receipt of the said import documents, Babar Hussain and Farhan Ibrahim used to hand-over import documents to Shakoor Alam son of I'm Din who, on the basis of import documents, used to deposit security amount arranged by him in the concerned shipping agencies, and thereafter received Delivery Orders/NOCs and Gate Passes which were subsequently handed over to Babar Hussain who prepared fake Goods Declaration of various clearing and forwarding agencies, including Messrs N.J. International CHAL No, 2392, Karachi, through Messrs Awan, Typist and Enterprises, near Custom House, Karachi, owned by one, Nasir A wan, under the instructions of Muhammad Naeem. Subsequently, Babar Hussain worked in association with Farhan Ibrahim, an ex-employee of Messrs Pakistan Revenue Automation Limited (PRAL), who was sacked from PRAL on the charges of embezzlement. During his employment, he remained posted at QICT, Karachi, and after losing his job, he started customs clearance business privately and developed association with Muhammad Naeem Qureshi and Babar Hussain. He prepared Goods Declaration by endorsing fake and bogus examination report and also affixed seals/stamps of Customs and Bank, including fake cash nunbers and used to approach Allah Buksh, an employee of Messrs DP World, Terminal operator, QICT, Karachi, who arranged/managed gate passes on the basis of which containers were removed from QICT, Karachi. It is pertinent to mention here that prior to the removal of containers from QICT, Nisar Ahmed son of Sher Dad Khan, Yard supervisor of Messrs DP World, Terminal operator, QICT, Karachi, used to facilitate the prompt and speedy removal of containers, including containers imported by Messrs Malik Enterprises, Lahore, through public transport. Thus, Allah Buksh and Nisar Khan, while employed with Messrs QICT/DP World. Karachi, in order to facilitate the organized crime of fraudulent clearance of containers on the basis of fake GDs arranged gate passes, made fake entries in the computer system and managed loading of containers on the vehicles for speedy removal/exit from, the QICT. The investigation pertaining to Babar Hussain, Farhan Ibrahim, and Nisar Ahmed was further conducted to ascertain their involvement in illicit financial transaction coupled with criminal involvement in manipulation, fabrication and dubious preparation of GDs, and for speedy clearance/fraudulent removal of containerized cargo from QICT. After hectic efforts, few accounts
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of the aforesaid persons were found. It became evident that Account Nos, 113-010-0132-9 and 6105- 364520-050 maintained in Messrs Askari Commercial Bank Limited, Timber Market, Karachi, and Standard Chartered Bank, 26th Street Branch, D.B.A., Karachi, respectively, were operated by Babar Hussain and showed an amount of Rs,43,218,145 which had been deposited during the period 1-1- 2007 to 17-9-2007. Similarly, Account No, 6208-335062-001 operated in Standard Chartered Bank, I. I. Chundrigar Road, Karachi by Farhan Ibrahim showed an amount of Rs,19,370,9841, and account No,0081-000164-01-5 of Bank Al-Habib, Jackson Branch, Keamari, Karachi, jointly operated by Nisar Ahmed and his wife, Mst. Irshad, and Account No,107 6-0081-001164-01-07 of Bank Al-Habib Limited, Jackson Bazaar Branch, Keamari, Karachi, operated by Mst. Irshad, wife of Nisar Ahmed, showed deposit of Rs,21,935,916. The aforesaid Account No,1076-0081-000164-01-5, maintained in Bank Al- Habib Limited, Keamari, Karachi, was jointly opened by Nisar Ahmed and his wife. However, the same was operated by Nisar Ahmed himself. The active connivance of Nisar Ahmed with Muhammad Naeem Qureshi had further been firmed up with the transaction of Rs,4,575,00 from the Account No, 6112-349072-050 of Standard Chartered Bank, Korangi Branch, Karachi, maintained and operated by Muhammad Naeem Qureshi, to the Account No,1076--0081-000164-01-5 of Nisar Ahmed in Al-Habib Bank Limited, Keamari, Karachi, through Cheque Nos,3002740, dated 4-1-2007, 4859483, dated 6-2-2007, 4859304, dated 19-2-2007, 5909981, dated 8-5-2007 and 5909990, dated 11-5-2007, paid against his services towards clandestine removal/clearance of containerized cargo from QICT. Besides, huge cash amount was also credited in the aforesaid accounts, which was paid to Nisar Ahmed by Naeem Qureshi. Faisal Shezad son of Sajjad Haider Awan was under judicial custody at Lahore and Shakoor Alam was on bail in case F.I.Rs, Nos, 06107, dated 7-2-2007, 08107, dated 25-7-2007, and 16 of 2007, and 15, 16, 17, 18 and 19 of 2007, lodged by the staff of the Directorate General. Production order issued in the name of Faisal Shezad and Shakoor Alam by the Honourable Special Judge, Karachi, dated 16-8-2008, were sent to the Superintendent, Central Jail, Lahore for production of the persons at Karachi. The Jail authorities did not produce any of the above mentioned persons in compliance of the Honourable Court's order. Shakoor Alam absconded after getting bail from Lahore. Faisal Shezad was granted bail by the Honourable Special Judge against a surety of Rs,200,000 and PR Bond of like amount on 26-6-2009. During interrogation of Muhammad Naeem son of Rustam Qureshi, it was revealed that in order to fraudulently remove the containerized Cargo, one Raziq Dino Jokhio son of Din Muhammad Jokhio, who happened to be a private person and working at the office of Gate SPO, at Exit gate of QICT, had also assisted and connived in the crime. On the pointation of Muhammad Naeem, the said Raziq Dino Jokhio son of Din Muhammad Jokhio was arrested on 3-5-2008, and Notice under section 171 of the Customs Act, 1969 was served upon him. He was also interrogated. He disclosed that Babar Hussain used to communicate to him details of fraudulently removed containers numbers, Gate Passes, Importers name, and gate-out date, with the direction to remove the gate passes from the Gate record of the Collectorate of Customs (Port Muhammad Bin Qasim), Karachi, and to return the same to him (Babar Hussain) against deal Money Raziq Dino admitted/confessed entire scenario of clandestine removal of containers, removal of official records, i,e, gate passes and his involvement/connivance in this organized crime before senior officers of the Directorate General, MCC (Preventive) and MCC (Appraisement), Karachi recorded on 7-5-2008. He was granted bail by the Court of Special Judge (Customs and Taxation), Karachi vide order dated 16- 12-2008. During investigation, it transpired that Babar Hussain hired the services of Aslam Niazi, Muqadim/commission agent, who arranged local transport for transportation of containers from QICT, Karachi to Messrs Z.K. Niazi, Private Container Yard, Maripur Road, Karachi, owned by one, Amir Niazi, and to other parts of city as per instructions of Babar Hussain. According to Aslam Niazi, further transportation of containers/goods to upcountry was arranged by one Shahid Iqbal of Messrs Arain Logistics, Maripur Truck Stand, Karachi. He also disclosed that local transportation
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charges in respect…
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