IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Amin-ud-Din Khan
(,q4)(D 5)
CRIMINAL PETITION NO.209 OF 2018 AND
CRL. MISC. APPLICATION No.392 OF 2018
(On appeal against the judgment dated 07.12.2017 by the
Is]ariiabad High Court, Islarnalpul, in Cr1. Appeal No. 152/2017)
Model Customs Collccwrate, Islamabad
Versus
Aamir Mumtaz Qureshi
Petitioner
Respondent
For the petitioner
For respondent
Date of hearing
Mrs. Misbah Gulnar Shari[, ASO
Sycd Rifaqat Hussain Shah, AOR
Qazi Shehryar lqbal, ASC
a/w respondent in person.
I R.05.2022
JUDGMENT
SAROAR TAmQJ!SOOD, J.-
CH. Misc. Application No.392/2018 For reasons set out in the instant
application for condonation of delay, the same is allowed and the
delay in filing of the pelition is condoned because the trial court
judgment and the impugned judgment are patently illegal and
against the record.
2. The petitioner department has impugned the judgment dated
0712.2017 of the Islamabad high Court whereby it uphold the order
dated 28.04.2017 of ticcRlittal of respondent, passed by the Special
Court (Customs, Taxation & Anti-Smuggling), Rawalpindi/Islamahad
Capital Territory under
 section 265-K Cr.P.C., in case FIR
No.49/2016, zegisteicd on 29.07.2016 at Police Station I&P Branch,
MCC Islamabad under sections 2(s), 156(1), 8, 70 and 157 of the
Customs Act 1969, read with section 8 of the Foreign Exchange
Pegulation Am 1947 (1V1 ACT).
Cr!. l 20912018 
2
3.
We have heard the learned counsel for the petitioner as well as
the learned counsel for the respondent and perused the available
record alongwith the impugned judgment with their assistance.
4.
Admittedly, the respondent Aamir Mumtaz Qureshi was
apprehended at Benazir Bhutto International Airport, Islamabad
when he was taking away heavy currency of about 400,000 (four
hundred thousand) Saudi Riyals to Saudi Arabia and the said foreign
currency was recovered from his exclusive possession which he was
smuggling abroad and this fact is not denied but he was acquitted by
the trial court under section 265-K, Cr.P.C. and appeal filed against
his acquittal was dismissed by the High Court through the impugned
judgment, hence this petition for leave to appeal. On 24.02.2018
notice was issued to the respondent.
5.
As respondent was acquitted by the trial court under section
265-K Cr.P.C. hence section 265-K Cr.P.C. and allies section 249-A
Cr.P.C. are reproduced as below: -
249-A. Power of Magistrate to acquit accused at any
stage: Nothing in this Chapter shall be deemed to prevent a
Magistrate front acquitting an accused at any stage of the
case if after hearing the prosecutor and the accused and for
reasons to he recorded, he considers that the charqJ
groundless or i/ia! (here is no nrobabilitu of the accused being
convicted c] any offence.
265-K. Power of Court to acquit accused at any stage:
Nothing in this Chapter shall be deemed to prevent a Court
from acquitting an accused at any stage of the case, if after
nearing the prosecutor and the accused and for reasons to be
recorded, it considers that there is no probabilif of the
accused being convicted of any offence."
Under section 249-A, the Magistrate is empowered to acquit any
accused on two grounds i.e. charge is groundless and there is no
probability of conviction, whereas under section 265-K Cr.P.C., the
court during the trial is empowered to acquit an accused, when there
is no probability of conviction indicating that when there is no
evidence on the record and even there is no remote probability of
conviction and if thcre is remote probability of conviction then the
court is required to record the evidence and then decide the case on
evidence bought on record during the trial. From the above sections,
it is also clear that application under sections 249-A and 265-K
Cr.P.C. can be filed or taken up for adjudication at any stage of
proceeding of trial i.e. cvcrI before recording of prosecution evidence
or during recording of evidence or when recording of evidence is over.
CrL,°.20912018 
3
Although there is no bar for an accused to file application under the
said sections at any stage of proceeding of the trial, yet the fact and
circumstance, the prosecution case will have to be kept in mind and
if there is slight probability of conviction then off course, instead of
deciding the said application should record the evidence and allowed
the case to decide on its merit after appraising the evidence available
on recorded.
6.
Although learned counsel for respondent contended that
respondent himself delivered the said currency to the authorities
while travelling to Saudi Arabia but this fact has not been established
by the learned counsel for the petitioner through documents except
the statement of the respondent himself but this fact further confirms
that he was apprehended at the Airport and huge currency, which he
was trying to smuggle to the Saudi Arabia, was recovered from him.
The argument of the learned counsel that respondent had filed
application before the State Bank of Pakistan for permission to take
away the currency to Saudi Arabia, has no force because mere filing
of an application for permission by itself is not sufficient to allow him
to smuggle the currency out side the country, until the permission
was granted and in this case admittedly, no permission was ever
granted by the State Bank of Pakistan. At this juncture learned
counsel for the respondent took a summersault and contended that
the respondent was not aware of the fact that foreign currency
amounting to more than US$ 10,000 (US dollars ten thousand)
cannot be taken awa y, from the country. This assertion is also not
getting support form any corner, because on one hand the
respondent claimed that he had filed all application for permission to
take the huge foreign currency out of the country and on the other
hand he was not aware of the fact that he could not take huge foreign
currency outside the country.
7.
The argument of the learned counsel for the respondent that he
was a Hajj Tour Operator and has not committed any offence of
taking away! smuggling foreign currency from the country, has no
force because being a HaJ Tour Operator he has no license to
smuggle the foreign currency outside the country. There was
sufficient material available on record connecting the respondent
with the commission of 1.1he alleged crime and it was incumbent upon
Cr1. P.209/2018 
4
the trial Court to record the evidence but instead of recording the
evidence to prove the guilt or otherwise of the respondent, the trial
Court in a slipshod manner, acquitted him under section 265-K
Cr.P.C.. The trial Court acquitted the respondent for the reason that
there is no probability of conviction, whereas, from the material
available on record, it is quite clear that he was apprehended at the
airport while leaving for Saudi Arabia with the above said huge
foreign currency.
8. There is no cavil to the proposition that by enacting sections
249-A and 265-K, CrI'C., the Legislature provided power to acquit
an accused at any stage of the case if, after hearing the prosecutor
and the accused and for reasons to be recorded, it considers that the
charge is groundless or that there is no probability of the accused
being convicted of any offence. But acquittal, under the said sections,
could be made only if there was no probability of conviction of the
accused. However, each case must be judged on its own special facts
and circumstances and the reasons are to be recorded in support of
conclusion that charge is groundless or that there is no probability of
accused being convicted. If there is remote probability of conviction
then of course courts are not empowered to invoke the said
provisions i.e. 249-A and 265-K Cr.P.C.. Reliance in this regard may
be placed on the case of The State through Advocate-General,
Sindh High Court of Karachi a Rafa Abdul Rehman (2005
SCMR 1544) wherein it was held that though there is no bar for an
accused person to file application under section 249-A, Cr.P.C. at any
stage of the proceedings of the case yet the facts and circumstances
of the prosecution case will have to be kept in mind and considered
in deciding the viability or feasibility of filing an application at any
particular stage. The special or peculiar facts and circumstances of a
prosecution case may not warrant filing of an application at a stage.
This Court in the case oF Bashir Ahmad V. Zafar ul Islam (PLD
2004 SC 298) did not approve decision of criminal cases on an
application under section 249-A, Cr.P.C. or such allied or similar
provisions of law, namely, section 265-K or section 561-A Cr.P.C. and
observed that usually a criminal case should be allowed to be
disposed of on merits after recording of the prosecution evidence,
atement of the accused under section 342, Cr.P.C., recording of
statement of accused under section 340(2), Cr.P.C. if so desired by
Cr1. P.209/2018 
5
the accused persons and hearing the arguments of the counsel of the
parties and that the provisions of section 249-A, section 265-K and
section 561-A of the Cr,P.0 should not normally be pressed into
action for decision of fate of a criminal case especially when
apparently there is probability of conviction after recording evidence.
In the present case, trial court disrupted the normal course of law
against the mandate of supra judgment i.e. Bashir Ahmad Vs. Zafar-
ui-Islam and others (PLD 2004 SC 298). In the case of The State
through Collector Customs and Excise, Quetta v. Azam Malik
and others (PLO 2005 SC 686) this Court held as under:-
22. This brings us to the third question i.e. whether the
prosecution had sufficient material/evidence to warrant the
prosecution of the respondents or there was no probability of
accused being convicted of any offence. We have gone through
the FIR registered against the respondents and the absconding
co-accused as also the evidence led before the Court. There were
serious allegations that there was tampering/overwriting/
culling of the relevant register of bills of entry, the matter was
inquired into at the departmental level and (he allegations were
found to be correct. Ex fade there was documentary, oral and
circumstantial evidence to prove the charges. In the face of this
material the Thai Court could not have invoked section 265-K,
Cr.P.C. and acquit the respondents.
Reliance may also be placed on the cases of Muhammad Sharif v.
the State (PLO 1999 SC 1063), Ghulam Faroog Tarar a Rizwan
Ahmad and others (2008 SCMR 383),
9.
Further, in appellate or revisional proceedings, the same
sanctity cannot be accorded to acquittals at intermediary stages such
as under, sections 249-A or 265-K Cr.P.C., as available for those
recorded and based on full-fledged trial after recording of evidence. In
appeal or revision proceedings, the order of acquittal of the accused
under section 249-A or section 265-K of the Ct-P.C. would not have
the same sanctity as orders of acquittal on merits. Consequently, the
principles which are to he observed and applied in setting aside
concurrent findings of acquittal or the principle relating to the
presumption of double innocence when an accused is acquitted after
a full-fledged inquiry and trial, would not he applicable to the
acquittals under section 249-A, Cr.P.C. or section 265-K, Cr.P.C..
10.
In the instant ease, if the allegations levelled in the FIR
supported by the preliminary evidence are admitted to be true, it
could not he said at that stage by the trial Court that there was
no probability of conviction of the respondent-accused. In order to
U
CrLP.211912018 
6
ascertain the genuineness of the allegations, the trial Court ought
to have allowed the prosecution to lead evidence. In the
circumstances, we are of the view that the learned trial Court
acted in haste in passing the order of acquittal which is,
therefore, notsustainable. The learned High Court was also not
justified in upholding the order of the trial Court when it is settled
that without permission from the State Bank of Pakistan, foreign
currency more than ten thousand dollars is not allowed to take
away from this country.
11. For the foregoing, this petition is converted into an appeal
and allowed. The orders of the trial Court and High Court are set
aside and the matter is remanded to the trial Court to record the
evidence and decide the case upon the evidence produce before it,
without being influenced by the observations mentioned above
because the material collected by the prosecution, during trial, will be
subject to cross-examination to unearth the truth. The parties, by
way of short order of even number passed on 1805.2022, were
directed to appear before the trial Court on 6.6.2022, which order
reads as under:
'or reasons to be recorded later on, this petition is
converted into an appeal and allowed, The orders of the
trial Court and High Court are set aside and the matter is
remanded to the trial Court to record the evidence and
decide the case upon the evidence produced before it. The
parties are directed to appear before the trial Cowl on
06.06.2022.'
Islamabad
13.07.2022
* s.t
Approved for reporting.
