Criminal Revision Application No.106 of 2007.
Syed Mehmood Alam Rizvi, J. _
Date of hearing : 14.11.2007.
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Applicant |
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Muhammad Siddique Abbasi through Mr.Khalilur Rehman, Advocate.
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Respondents |
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The State & others through Mr.Habib Ahmed, AAG. |
Syed Mehmood Alam Rizvi, J :- The applicant has challenged the order dated 23.7.2007 passed by the learned Anti Terrorism Court No.II, Karachi and the proceedings of contempt initiated against the applicant under Section 19(2) & 37 of the Anti Terrorism Act, 1997 (herein after referred to as the ‘Act’).
2. The brief facts of the case are that Anti Terrorism Court No.II, Karachi issued bailable warrants of Muhammad Ghazanfar Ali Rao, Divisional Engineer (Phones) NTC, Karachi and the Regional Director (Revenue) Divisional Engineer (Phones) NTC, Karachi on 10.7.2007 and the same were sent to the applicant who was SHO Frere Police Station for execution. The applicant entrusted the warrants to ASI Mahmood Ahmed of his P.S. for execution. The ASI failed to produce the report regarding execution of the warrants before the learned trial Court on 17.7.2007 when the matter was fixed before the learned trial Court. The learned trial Court issued show cause notice to the applicant under Section 37 of the Act on 19.7.2007 whereby he was directed to appear in person on 23.7.2007. The applicant submitted his reply to the show cause notice but the learned trial Court was not satisfied from the reply, therefore, the contempt proceedings were ordered to be initiated against the applicant for willful disobedience of the directions of the Court.
3. The charge was framed against the applicant on 21.8.2007 to which he pleaded not guilty, therefore, the learned trial Court recorded the evidence of the witnesses. The proceedings were at the stage of recording evidence of the defence witnesses when the applicant filed this Revision Application and the R&Ps were called by this Court.
4. The case of the applicant is that he entrusted the warrants to ASI Mehmood Ahmed, who after service instead of submitting the report himself handed over the report to the Court Moharrer namely; PC Muhammad Hamid for submitted the same before the learned trial Court. The said Court Moharrer appeared before the Reader of the learned trial Court who refused to take the report as the same has not been brought by the concerned Executing Officer and the Court Moharrer was directed to call SHO. The applicant attended the Court on the same day but he was not produced before the Presiding Officer of the Court but subsequently, he received show cause notice dated 19.7.2007. The applicant has filed his affidavit and the affidavit of PC Muhammad Hamid to this effect. The applicant has produced arrival and departure entries kept at the gate of the Anti Terrorism Court No.II, Karachi. As per entries Register the Court Moharrer Mohammad Hamid reached at Anti Terrorism Court No.II, Karachi at 0910 hours and applicant at 1140 hours on 17.7.2007.
5. It is admitted position that the bailable warrants were duly received upon Mujahid Hussain, Assistant Engineer Telecommunication, Karachi Cantt and he also executed a P.R. Bond of Rs.10,000/= that he would attend the Court on 17.7.2007 and on 17.7.2007 he appeared before the Anti Terrorism Court No.II, Karachi in compliance of the said P.R. Bond. While, PW Mujahid Hussain also attended the Court and as per entries his arrival was recorded at 0925 hours and the departure was 1215 hours.
6. It is admitted position that the warrants were issued to the SHO for execution but instead of execution of the warrants himself, the applicant entrusted the warrants to his subordinate in routine and thereafter, the applicant has taken no interest in the matter. It has been observed that in such type of cases warrants are usually entrusted to subordinate officer by the SHO concerned for execution but at the same time it is the duty of the SHO to see that whether the Court orders are complied with by his subordinate or not. The proceedings of the learned Court are silent with regard to the appearance of the Court Moharrer and the applicant on 17.7.2007, however, from the above mentioned entries dated 17.7.2007, it is established that Court Moharrer and the applicant at least attended the Court on the required date, therefore, the order dated 23.7.2007 is set aside and the proceedings of contempt against the applicant are quashed. However, it is pertinent to mention here that the conduct of the applicant was negligent. The police officers should be more careful for compliance of the orders of the courts and if the matter is entrusted to any subordinate officer even then it is the duty of the officer concerned to ensure that Court’s order is complied in its letter and spirit. The applicant is warned to be careful in future.
7. Above are the reasons of our short order dated 14.11.2007 by which we allowed the Criminal Revision Application and quashed the proceedings.
JUDGE
CHIEF JUSTICE
Karachi :
Dated: _______________
Criminal Revision No.190 of 2002.
Rahmat Hussain Jafferi, JJ.
Date of hearing : 09.5.2006.
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Applicant |
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The State through Mr.Habib Ahmed, AAG.
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Respondents |
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Attaullah @ Qasim and Muhammad Azam in person. |
Rahmat Hussain Jafferi, J :- The present Revision Application is directed against the order dated 29.7.2002 passed by the Administrative Judge, Anti Terrorism Courts, Karachi by which the learned Judge did not accept the challan of Crime No.294/2001 of Police Station Soldier Bazar, Karachi for want of jurisdiction.
8. Brief facts given rise to the present application are that on 21.12.2001 at 11.00 p.m. the deceased Ehtishamuddin Haider, (brother of Mr.Moinuddin Hyder, the then Interior Minister, Government of Pakistan) Executive Board of Trustees of Fatmid Foundation was going to his house in his Car No.Z-0157 which was driven by his driver. When the car reached near main gate of Bungalow No.5182/1, Patrol D'Silva Road some unknown terrorists fired from their weapons at the deceased resulting his death, therefore, the dead body was taken to the hospital.
9. The police after usual investigation arrested the respondents who are alleged to belong Lashkar-e-Jhangvi Group, which is banned organization. The challan was submitted before the Administrative Judge who did not accept the same under the impugned order.
10. We have heard the AAG and appellants in person.
11. The learned AAG has stated that the deceased was the brother of Mr.Moenuddin Haider, the then Interior Minister, Government of Pakistan; that the Government had taken action against the Madarsas and terrorists organizations; that before that the terrorists had killed the sister of the then Interior Minister; that the present incident is also the result of action taken by the Interior Minister against Madarsas and terrorist religious organizations; that the incident was not due to personal grudge or enmity between the respondents and the deceased; that the incident had created sense of fear and insecurity in the public because when the brother of the then Interior Minister was unsafe then the people were terrorized and were feeling unsafe. He has relied upon the case of Shaukat Baig v. Shahid Jamil (PLD 2005 S.C. 530). The respondents have stated that the Court may examine the file and decide the matter; and that it is immaterial for them either to be tried by ordinary Court or by Anti Terrorism Court.
12. We have given due consideration to the arguments, gone through the material available on the record and examined the case of Shaukat Baig (supra). The Hon'ble Supreme Court of Pakistan interpreted Section 6 of the Anti Terrorism Act, 1997. The relevant portions of the judgment are as under:-
“6. The language as employed in the Section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive Section and does not revolve around the word ‘designed to’ as used in Section 6(1)(b) of the Act or mens rea but the key word, in our opinion is ‘action’ on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of Section 6 of the Act or otherwise? The significance and the import of word ‘action’ cannot be minimized and requires interpretation in a broader prospective …………………… …………………..
11. After having gone through the provisions as contained in Section 6 of the Act we are of the firm opinion that ‘terrorism’ means the use or threat of ‘action’ where the ‘action’ falls within the meaning of sub-section (2) of Section 6 of the Act and creates a serious risk to safety of the public or a Section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as enumerated in Section 6 of the Act. As pointed out earlier we cannot pick and choose one or two sentences or a few words for academic purpose and scholarly interpretation by ignoring the objects and reasons for the promulgation of Act and its preamble which reads as follows:-
………………………………………..
21. In the light of above mentioned discussion the only inescapable conclusion would be that the words ‘designed to’ are equated to that of willfully, knowingly and deliberately. It would have no substantial bearing on the impact of Section 6 of the Act whether the words knowingly, deliberately and willfully have been mentioned specifically or otherwise as it would have no impact on the meaning, aim, scope and objects of the provisions of Section 6 of the Act. We are conscious of the fact that ‘mens rea’ (guilty intention) is an important ingredient of offences made punishable under the Act but specific use of the word ‘mens rea’ in the enactment is not necessary, if this expression can be conveyed by any other word as has been done by the Legislature in Section 6 of the Act by using the words ‘designed to’.
………………………………………..
23. Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general public that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence. A farfetched interpretation of the words ‘designed to’ as used in Section 6 of the Act has been made by the learned High Court which we are afraid is not correct as the impact of the alleged offence and the manner in which it is committed has been ignored on the basis whereof the design of the alleged offence can be unveiled. There is absolutely no doubt in our mind that the Act was brought into force for the prevention and elimination of terrorism, sectarian violence and for expeditious dispensation of justice in the heinous offences as stipulated in Act itself. We have also surveyed the case law on the subject. It is, however, to be noted here at this juncture that so far as the concept of ‘terrorism’ is concerned there is no substantial change between the Suppression of Terrorism Activities (Special Courts) Act (XV of 1975) and the Anti Terrorism Act (XXVII of 1997) except a few minor changes having no bearing on the meaning and scope of terrorism.”
13. Keeping in view the above rule laid down by the Hon'ble Supreme Court of Pakistan we have examined the present case and found that the incident took place on the main road in residential area. The deceased was the brother of the then Interior Minister. There was no personal enmity between the deceased and the respondents. The respondents are allegedly members of banned Lashkar-e-Jhangvi Organization. At the relevant time the Government had taken action against terrorists and religious organizations who were involved in sectarian killings. The brother of the deceased, then Interior Minister played an important role in the said action. The people must have been put to fear when they came to know that the brother of the then Interior Minister was murdered and his life was unsafe, therefore, the incident must have produced an impact of fear and insecurity amongst the public, hence the ingredients of Section 6 of the Anti Terrorism Act, 1997 are attracted in the present case. As such, the Anti Terrorism Court has jurisdiction to try the case.
14. In the light of what has been discussed above the impugned order is set aside. The concerned Police Station is directed to submit the challan before the Administrative Judge, Anti Terrorism Courts, Karachi for trial in accordance with law. The application is allowed.
JUDGE
Karachi :
Dated : _____________ JUDGE
Cr. Revision No.38 of 2000.
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Applicant |
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Muhammad Tahir Bhatti through Mr.Raja Ali Asghar, Advocate.
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Respondent |
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The State through Mr.Habib Ahmed, Asst. Advocate General. |
WAHID BUX BROHI, J:- The Criminal Revision No.38 of 2000 was decided by this Court on 09.8.2001 whereby the conviction of Muhammad Tahir Bhatti for offence under Section 193, PPC followed by sentence of rigorous imprisonment for 06 months and fine of Rs.5000/= awarded by learned VI-Judicial Magistrate & FCM, Karachi South and upheld by learned VII-Additional Sessions Judge, Karachi South were maintained. The applicant/accused thereafter, filed an application under Section 426(2-A), Cr.P.C. read with Section 561-A, Cr.P.C. seeking bail for a period of one month to enable him to present his appeal before the Hon'ble Supreme Court. The application was heard and dismissed on 23.8.2001.
15. Mst.Nargis, who happens to be stepmother of applicant/accused Muhammad Tahir Bhatti and was the aggrieved person on whose motion the proceedings under Section 193, PPC were initiated, made an application alleging that after the above mentioned orders the applicant/accused managed incarceration of another person in his place. It was also alleged that the accused/applicant came out of jail just after 2 months without completing the period of sentence. On this application it was ordered by this Court on 18.3.2002 that since the revision has been decided finally the ancillary matters were to be probed into by the concerned Magistrate, who may hold such inquiry and pass necessary orders. The learned Magistrate held an inquiry wherein he examined the Assistant Jail Superintendent, Malir District Jail; lock-up In charge Insp. Moula Bux; Parole Officer Manzoor Hussain; and applicant/accused Muhammad Tahir Bhatti. He also recorded the evidence of Mst.Nargis Perveen and in the light of their evidence and the documents produced by the official witnesses he came to the conclusion that the allegation of Mst.Nargis Perveen was not correct. Despite this report Mst.Nargis Perveen made an application that the report may be bypassed and legal action may be taken. It is worth mentioning here that even the Assistant Director ‘Reclamation and Probation Karachi’ has submitted a report to the effect that Muhammad Tahir Bhatti was released on parole on 29.10.2001 from District Jail Malir under the orders of the Government of Sindh, Home Department and when his sentence ended he was also released from parole on 22.12.2001.
16. All these documents establish that the allegation of Mst.Nargis Perveen is not well-founded. It is a question apart that this Court is not concerned with such matters, as alleged by the complainant, but in the interest of justice such administrative steps were taken which proved that even the alleged grievance of Mst.Nargis Perveen was without merits. Consequently, the application made by Mst.Nargis Perveen being M.A. No.5014 of 2003 is dismissed and the Reference made by the learned Magistrate stands disposed of.
17. These are the reasons for the short order announced in Court today.
Karachi : JUDGE
Dated: 30th August, 2004.
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Revision Nos.185 & 186 of 2001.
Present : Wahid Bux Brohi, and
Rahmat Hussain Jafferi, JJ.
O R D E R
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Applicant |
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State through Mr.Anwar Tariq, DPG for NAB.
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Respondents |
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Muhammad Aslam Arain and others through M/s.Muhammad Ashraf Kazi, Asim Mansoor and M. Arshad Pathan, Advocates. |
WAHID BUX BROHI, J :- The above cited revisions are being disposed of by this common order as they arise out of one and the same Reference bearing No.29 of 2001 made by Chairman, NAB. Both these Criminal Revisions have been instituted under section 32(c) of the National Accountability Bureau Ordinance, 1999 (herein below to be referred to ‘the Ordinance’), the first one (Cr. Rev. No.185 of 2001) assails the order dated 09.10.2001 and the second (Cr. Rev. No.186 of 2001) questions the order dated 08.10.2001 passed by the Accountability Court No.4 Sindh, Karachi whereby the ‘plea bargaining’ of the accused persons was accepted and their applications under section 25 of the Ordinance were allowed and they were ordered to be released.
18. Briefly stated the background of the case is that that Accountability Reference No.29 of 2001 dated 16th July, 2001 was filed by the Chairman, NAB in the Accountability Court No.4 Sindh, Karachi arraying 23 accused persons, including Muhammad Alam Arain and Mansoor Ahmed Qureshi (respondents in Cr. Rev. No.185 of 2001) at serial No.3 and 4 respectively and Qazi Muhammad Shuja (respondent in Cr. Rev. No.186 of 2001) at serial No.2. Qazi Muhammad Shuja was the then Project Director, LBOD (Left Bank Out-fall Drain), WAPDA, Hyderabad, while Muhammad Alam Arain and Mansoor Ahmed Qureshi were Land Acquisition Officers of the said Project at Sanghar. It was, inter alia, alleged in the reference that after due inquiry and investigation ordered by the NAB, the Assistant Director FIA Karachi submitted a report under section 173, Cr.P.C. disclosing therein that during the period between 1994 and 1996 accused No.1 namely Muhammad Kalim Farooqui, the then Project Director LBOD, WAPDA, Sanghar and Qazi Muhammad Shuja, one of the respondents herein, during their posting at Sanghar and Badin respectively in collusion with Muhammad Alam Arain and Mansoor Ahmed Qureshi, the Land Acquisition Officers/respondents herein on the basis of fake/tampered B-forms and Deh Forms-VII fraudulently and dishonestly paid excess amount from the public exchequer, causing colossal loss to the public exchequer and favoured the remaining accused persons in the withdrawal of amounts based on the bogus claims. The funds were, in fact, provided by the Government of Pakistan for the project for acquiring land at Badin and Sanghar, but, as alleged, the awards were passed and payments were made by Land Acquisition Officers to Khatedars on the basis of either forged documents or for the lands which were not in existence. In all, the loss caused to the government exchequer was to the tune of Rs.56,53,323/=.
19. During the proceedings, applications made under section 25 of the Ordinance were heard by the Accountability Court after issuing notice to the Special Prosecutor and after hearing both sides. The Court was convinced that the respondents had returned the amounts to the extent of loss caused by them and accordingly their applications were allowed which orders have been impugned herein.
20. We have heard Mr.Anwar Tariq, learned DPG for NAB and M/s.Muhammad Ashraf Kazi, Asim Mansoor and M.Arshad Pathan, learned counsel for respondents and perused the material available on record.
21. Main ground taken on behalf of the NAB is that ‘plea bargaining’ connotes compromise between two parties, therefore, mere offer of return of the amount by the accused was not enough; and unless consent was given by the Chairman, NAB, the Accountability Court, was not competent to accept the ‘plea bargaining’ without approval and consent of Chairman NAB. It is also contended that the offence of “corruption and corrupt practices” is not compoundable and only the act of obtaining illegal gains/benefits by private individual is compoundable, therefore, the respondents being government officials could not be allowed the facility of ‘plea bargaining’ unless it was done by the Chairman NAB itself. Learned Deputy Prosecutor General at one stage, contended that the total amount of loss caused to the public exchequer has not been returned by the respondents, but on being pointed out that the impugned orders undisputedly demonstrate the consent of the Special Prosecutor appearing in the Accountability Court that the amounts paid to Khatedars have been deposited by the accused person through demand drafts, he was not in a position to advance this contention any more or refer to any additional material in support of his contentions. He, however, insisted that the respondents are government servants, therefore, they could not avail the concession of ‘plea bargaining’ under section 25(a) of the Ordinance. Learned counsel for respondents strenuously contended that a discrimination founded on the classification of accused persons being government servants is not warranted and Accountability Court has acted clearly within the domain of section 25 of the Ordinance and the order is not open to criticism as under the law the consent of Chairman NAB was not required before passing such order.
22. We have considered these contentions in the light of relevant law and facts of the case.
23. The crux of the case involves interpretation of the provisions of section 25(a) of the Ordinance, the text whereof is reproduced below:-
“25(a) Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practices, the Court or the Chairman NAB with the approval of the Court or the Appellate Court, as the case may be, may release the accused;”
24. A careful and minute study of the above provision would indicate that the release of a person accused of an offence under the Ordinance, may be a holder of a public office or any other person, on the return to the NAB the assets or gains acquired through corruption or corrupt practices, can be ordered at any time before or after the commencement of the trial; and such release may be ordered either by the Court, (defined under section 4(g) of the Ordinance). It may be noted that the statutory position as indicated above obtains from the amended provision of section 25 of the Ordinance, which amendment was introduced through Ordinance XXXV of 2001 promulgated in pursuance of the verdict of the Hon'ble Supreme Court in the case KHAN ASLAM YAR WALI V. FEDERATION OF PAKISTAN (PLD 2001 S.C. 601). It may be recalled that section 25 of the Ordinance was earlier substituted through Ordinance IV of 2000 dated 03.2.2000 amending the original text, and the said provision did not empower the Court or the appellate Court to order such release. Indeed, it was through Ordinance XXXV of 2001 that these forums were empowered by the legislature to effect such release, that is to say, either the Accountability Court or Chairman NAB subject to approval of the Accountability Court or the appellate Court. The sweeping power to order such release exclusively enjoyed by the Chairman NAB has been modified under the amending Ordinance and the Accountability Court has been assigned this power in express, unequivocal and unrestricted terms subject, however, to the fulfilling of the other conditions stipulated in subsection (a) of section 25 of the Ordinance. No doubt, the Chairman NAB has also been permitted to exercise such power, but his authority has been circumvented and subjected to the approval of the Court or the appellate Court, as the case may be.
25. In this manner through the said amending Ordinance, (Ordinance XXXV of 2001) the power of releasing an accused on ‘plea bargaining’ within the meaning of section 25 of the Ordinance formerly being exercised by quasi judicial forum such as Chairman NAB stood entrusted to a forum deciding the matters by judicial dispensation namely the Court. Consequently, in the matter of sanctioning release of an accused on ‘plea bargaining’ looking for consent of the Chairman NAB would, in essence, amount to flagrant disregard of the express provision of the enactment. The contention on this ground is, therefore, without force and cannot be sustained.
26. The other contention is that the respondents are government servants, therefore, in their case the offence would not be compoundable within the meaning of section 25 of the Ordinance unlike an ordinary accused person. This contention, in substance, is in disregard of the scheme of clause (a) of section 25 of the Ordinance which in uncontroversial terms, in the phrase ‘the holder of a public office or any other person accused of any offence under this Ordinance’ places on the same pedestal both of them namely, ‘the holder of a public office’ and ‘any other person’ without any discrimination. Indeed, the connotation of term ‘holder of a public office’ within the meaning of definition clause (m) of section 5 of the Ordinance is wide enough to circumscribe the government functionaries of Federation and Provinces as described therein. While interpreting a provision of law the express words used therein cannot be ignored and it would be unjust to carve out a different class ignoring the words stated therein. All the holders of public office, as defined in the above mentioned provision, as also any other accused person are to be treated uniformly with a common approach, while applying section 25 of the Ordinance and the facility of ‘plea bargaining’ enjoined in the law cannot be refused to a particular category of the persons. The contention in this respect is wholly unjust, without reason and ill founded as such the same fails.
27. The view that the offence of corruption and corrupt practices is not compoundable is again founded on misconception and misassessment of legal position. The offence of corruption and corrupt practices defined under section 9 of the Ordinance has been made punishable under section 10 of the Ordinance and nowhere does the Ordinance make it compoundable in terms of section 345 of the Code of Criminal Procedure. The release on the basis of ‘plea bargaining’ within the purview of section 25 of the Ordinance cannot be equated with compounding of an offence under section 345, Cr.P.C. as, each one has its own scope, applicability and consequential effect. There is, however, no occasion to dilate upon this issue at this juncture and enter into minute discussion since it falls beyond the scope of the legal point involved in the instant case. This argument, as such, cannot be entertained.
28. A ground has also been taken to the effect that the accused have amassed properties disproportionate to their known sources of income, but since this sort of allegation was not included in the reference itself the same is taken out of consideration.
29. As regards the factual aspect about return of the amount involved in the loss caused to the public exchequer, the point has already been thrashed by the trial Court at the stage of hearing of the applications made by the respondents. The Special Public Prosecutor had, in unequivocal terms, conceded that the amount paid to the Khatedars by the respondents (applicant/accused) are the same as the accused/respondents have deposited through demand drafts. It is further mentioned in the impugned orders that the position was also verified in open Court from the record available with the Investigating Officer present in Court on that day. The trial Court is the Court of first instance and the facts are to be examined by it, the observations of the trial Court, therefore, carry immense significance and cannot be disputed unless material is placed on record to the contrary. A clear description of the fact by the trial Court in this regard in the impugned order is sufficient by itself that the amount in question that is to say the loss caused to public exchequer has been returned by the respondents. The contention in this regard is also without substance and is rejected.
30. On the whole, in consequence of the above discussion it is concluded that while passing the impugned orders the Court has neither exercised a jurisdiction not vested in it by law nor has it failed to exercise its jurisdiction so vested. In any case, it cannot be said that the Accountability Court has acted in exercise of its jurisdiction illegally. The Revisions are, therefore, wholly without merit and are, as such, dismissed in limine.
31. These are the reasons for the short order announced in Court on 20.12.2002.
JUDGE
JUDGE
Karachi :
Dated: __________
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Revision No.123 of 1997.
O R D E R
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ApplicantS |
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M/s.Green Valley Trading Company through Mr.Suhail Muzaffar, Advocate.
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Respondents |
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Addl. Director of Adjudication, State Bank of Pakistan and another through Mr.H.A.Rahmani, Advocate. |
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WAHID BUX BROHI, J :- This Criminal Revision under section 439, Cr.P.C. calls in question the order dated 12.11.1997 passed by the Presiding Officer, Foreign Exchange Regulation Appellate Board, Karachi whereby the surety offered on behalf of the applicant was rejected.
32. The circumstances leading to this revision, concisely stated, are that a complaint was filed by State Bank of Pakistan, respondent No.2, through Shamsuddin, Foreign Exchange Officer against Younus Rehmatullah, Proprietor/signatory of M/s.Green Valley Trading Company, Karachi, the applicant, under section 12(1) read with section 23-B of Foreign Exchange Regulation Act, 1947 (herein below to be referred to as ‘the Act’) for non-repatriation of exports proceeds of $ 14280 (first shipment), $ 45305 (second shipment) and $ 106080 (third shipment). The Additional Director of Adjudication, respondent No.1, held proceedings and after examining the evidence recorded by him passed the judgment dated 25.1.1996 against applicant Younus Rehmatullah, Proprietor of M/s.Green Valley Trading Company under section 12|(1) read with section 23-B(4) of the Act and imposed penalty of Rs.50,00,000/= upon him. The applicant preferred an appeal before the Foreign Exchange Regulation Appellate Board under section 23-C of the Act and offered surety on 09.4.1997, but no final order was passed about acceptance of the surety as there was no proof of the valuation of the property. The order dated 17.9.1997 passed by the Appellate Board indicates that such valuation of the property was to be made by the City Deputy Collector. On 29.10.1997, however, valuation was received from Assistant Commissioner, Karachi South. Since value of the shop was assessed at Rs.1,92,339.99 while the amount of penalty was Rs.50,00,000/= the security was rejected and the applicant/appellant was directed to furnish another surety. The applicant/ appellant filed an application requesting the Appellate Board to accept the same surety, but the application was rejected by order dated 12.11.1997. He, therefore, preferred the instant Criminal Revision.
33. I have heard Mr.Suhail Muzaffar, learned counsel for the applicant and Mr.H.A. Rahmani, learned counsel for the respondents.
34. At the outset the maintainability of the Criminal Revision under section 439, Cr.P.C. was seriously questioned. Mr.Rehmani contended on behalf of the respondents that the Appellate Board, which passed the impugned order, is neither a criminal Court nor a Court inferior to High Court within the meaning of section 435, Cr.P.C., therefore, this Court has no jurisdiction to exercise powers under sections 435 and 439, Cr.P.C. He argued that after introduction of amendments through Finance Act, 1987 (Act VI of 1987) the contravention of, inter alia, the provisions of subsection (1) of section 12 of the Act has been taken out of the purview of the Tribunal constituted under section 23-A of the Act and now the cases of such contravention are to be adjudicated not by the said Tribunal, but by the Adjudicating Officers, and in case of appeal by Appellate Board constituted under section 23-B and 23C whose powers have been enumerated under section 23E which expressly spell out the powers of a civil Court. According to Mr.Rehmani, the orders passed by the said Adjudicating Officer and Appellate Board are not amenable to criminal revision under the Code of Criminal Procedure. In this context he also referred to the provisions of sections 1(2) and 5(2) of the Code of Criminal Procedure and urged that the said Code is not applicable to the proceedings before the Adjudicating Officer or Appellate Board. He placed reliance on NASIR-UD-DIN V. THE STATE [PLD 1956 (W.P.) Lahore 1082], ABDUL HAMID ARIF V. STATE (PLD 1974 Karachi 167), MUHAMMAD RAFIQ V. STATE (PLD 1980 Lahore 708) and FIDA MUHAMMAD V. STATE BANK OF PAKISTAN (1982 P.Cr.L.J. 779).
35. Learned counsel for applicant, however, arguing in support of the maintainability of Criminal Revision submitted that, in essence, the original order passed by the Additional Director of Adjudication, that was impugned before the Appellate Board (respondent No.1) clearly mentions that the charge against the applicant stood proved and he is, therefore, convicted. Consequently, penalty of Rs.50,00,000/= has been imposed on him, therefore, the original order shall be deemed to have been passed by a criminal Court and the proceedings before the Appellate Board shall also be treated as criminal appellate proceedings.
36. The contentions raised by Mr.H.A.Rehmani are initially based on the amendments introduced in the Foreign Exchange Regulation Act, 1947 through Finance Act, 1987 (Act VI of 1987) and vires of the amending Act have, perhaps, been challenged before another Bench of this Court, but nothing has been placed on record to suggest that the Amending Finance Act has been struck down or not, therefore, in view of the observations of the Hon'ble Supreme Court in the case of FEDERATION OF PAKISTAN V. AITZAZ AHSAN (PLD 1989 S.C. 61) that a piece of legislation unless finally declared ultra vires possess its normal operation, the amendment so effected shall hold the field.
37. It may, however, be noted that before the said amendments section 23 of the Act wholly encompassed the subject in respect of “penalty and procedure” laying down that the contravention any of provisions of the Act and the rules etc. be tried by a Tribunal constituted under section 23-A of the Act. Under section 23-A, every Sessions Judge of the area would act as Tribunal having powers of a Magistrate of the First Class in relation to criminal trials. Further, as contemplated under subsection (3) of section 23-A the procedure provided in the Code of Criminal Procedure, 1898 was to be followed. After enforcement of the amendments through Act VI of 1987 the contravention of provisions of subsections (2), (3) and (5) of section 3, subsection (3) of section 4, section 10, subsection (1) of section 12 and subsection (3) of section 20 or any rule, direction or order made thereunder have been excluded from the jurisdiction of the Tribunal and consequential amendment has simultaneously been made by inserting new sections 23-B, 23-C, 23-D, 23-F, 23-H. Under these newly added provisions the adjudication of the contraventions has been bifurcated and in respect of the matters covered by the contravention of the provisions which were excluded from the purview of the Tribunal constituted under section 23-A of the Act a new set up has been established and adjudication of those contraventions has been entrusted to Adjudicating Officers whose decisions are appealable before a separate forum namely the Appellate Board. A separate procedure under section 23-E has been prescribed laying down the powers of Adjudicating Officers and Appellate Board. Section 23E of the Act runs as under:-
“23E. Powers of Adjudicating Officers and the Appellate Board to summon witnesses, etc.
(1) Without prejudice to any other provision contained in this Act, the Adjudicating Officers and the Appellate Board shall have all the powers of a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) while trying a suit, in respect of the following matters namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record or copy thereof from any Court or office;
(d) receiving evidence on affidavits;
(e) issuing commissions for the examination of witnesses or documents;
(f) appointing guardians or next friends of persons who are minors or of unsound mind;
(g) adding legal representatives of the accused person;
(h) consolidation of cases; and
(i) enforcing any order made by him or it under this Act or the rules made thereunder.”
38. It may be recalled that the proceedings before Adjudicating Officer and the Appellate Board are deemed to be judicial proceedings within the meaning of section 23F of the Act, but this kind of provision is common to many Tribunals and Courts even to the civil Court and by itself it does not determine the status of the Court as to whether it is a civil or criminal Court.
39. Mr.Suhail Muzaffar, learned counsel for applicant referred to the words used by the Adjudicating Officer in his original order pointedly mentioning that the charge against the applicant stood proved, he was accordingly convicted and penalty imposed on him. In view of the phraseology used in the order he argued that the Adjudicating Board shall be treated as a Criminal Court. I am unable to agree with the learned counsel that for the sole reason that the terminology often used by the Criminal Courts has been employed by the Adjudicating Officer, the forum convened by him shall essentially be treated as a Criminal Court. Indeed, it is the powers conferred on a Tribunal/Forum by statute and the procedure prescribed therein that determine the nature of the Court; and only then upon thorough consideration of all the relevant provisions governing the proceedings it can be said that such Forum or Tribunal has the attributes of a civil or a criminal Court.
40. It is significant to note that on the subject matter involved in the instant case the Adjudicating Officer deals with the contravention of aforementioned provisions of the Act and the rules, directions or order made thereunder and upon adopting the procedure laid down in section 23E, which eventually are those of a civil Court, imposes a penalty in terms of money. Although, in different cases different Adjudicating Officers have been empowered to pass orders, but a distinct and conspicuous feature that can be marked in these provisions is that in any case the act does not empower them to impose fine or imprisonment in lieu of the penalty. The provisions for recovery of penalty provided in section 23J does, at the most, empower recovery of penalty through Collector of the district as arrears of land revenue, but this section does not by itself equate the penalty with fine nor does it provide any imprisonment in lieu thereof. It may be noted that “penalty” by no stretch of imagination, can be treated as “fine” within the meaning of section 53, PPC unless a statute, by necessary intendment and in specific terms treats it a fine. It is on account of such legal concept of punishment that the legislature has, in express terms, made the other contraventions covered by subsection (1) of section 23 of the Act (not excluded through the amendments made by Act VI of 1987) punishable with imprisonment and/or fine. Essentially the present case possesses distinguishing features.
41. The provisions of subsection (2) of section 5 of the Code of Criminal Procedure are relevant in this context for the purpose of determining the question whether the Code of Criminal Procedure would be applicable to a Forum/Tribunal constituted under a special statute or not. These provisions are reproduced as under:-
“1. Short title: Commencement. --- (1) This Act may be called the Code of Criminal Procedure, 1898.
(2) Extent. It extends to the whole of Pakistan; but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
5. Trial of offences under Penal Code. (1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”
42. A joint reading of these provisions would indicate that the Code of Criminal Procedure is not applicable to the matters governed by any special or local law unless there is a provision expressly making the Code applicable to such special or local law wholly or to any extent. Indeed, after the aforementioned amendment through Act VI of 1987 the application of Code of Criminal Procedure within the meaning of subsection (3) of section 23-A of the Act extends only to the Tribunal constituted under section 23-A which essentially is the Sessions Judge exercising the powers under the Code of Criminal Procedure within the territorial limits of his jurisdiction and would not extend to the forum of Adjudicating Officer established under section 23-B and the Appellate Board constituted under section 23-C of the Act. An express and specific provision laying down the applicability of the Code of Civil Procedure, 1908 under section 23 of the Act is by itself sufficient and by no sound reasoning the Code of Criminal Procedure could be applicable to these forums overlooking the express provisions of law.
43. The wisdom behind making such contravention punishable with penalty only and by laying down a moderate machinery for the purpose of adjudication of such case and recovery of penalty under section 23J of the Act is manifest from the scheme of introducing these amendments. To my mind it seems, the commercial morality and the free and liberal commercial and industrial business transactions could be the main object of excluding the contravention of aforementioned provisions of the Act from the purview of a criminal Court and bringing them within the domain of a Forum/Tribunal exercising the powers of a Civil Court so that the lapses in terms of money be treated as defaults of civil nature and dealt with accordingly. The commerce, trade and industry spreads over a number of business transactions and the ordinary lapses on the part of businessman or industrialist shall not so oftenly be treated as crimes unless the mens rea to perpetrate a crime and commit fraud, mischief or misappropriation of money, criminal breach of trust etc. and loss to public exchequer is evidenced in an unequivocal terms. Irrespective all this, as already discussed, the adjudication of the aforementioned contravention has intentionally been brought within the domain of Code of Civil Procedure, the Adjudicating Officer, therefore, cannot be treated as a Criminal Court.
44. In result of the foregoing discussion I am inclined to hold that the Adjudicating Officer constituted under section 23-B and the Appellate Board constituted under section 23C are neither criminal Courts nor Courts of inferior jurisdiction within the meaning of section 435, Cr.P.C. Even if the Adjudicating Board has used the terminology of ‘charge’ and ‘conviction’ the proceedings are manifestly beyond criminal jurisdiction of this Court under section 435/439, Cr.P.C. The instant application under the aforesaid provisions of Code of Criminal Procedure is not maintainable at all, and is, therefore, dismissed.
Karachi : JUDGE
Dated: __________
Further the general application of subsection (2) of section 5 as to investigation, inquiries and trials extends to all offences under any other law, but the predominant condition for applicability of this subsection is that such investigation, inquiry and trial is in respect of an offence under any other law. Unless the subject matter or so to say the act or omission defined in any other law constitutes an offence section 5(2), Cr.P.C. would not make the Code of Criminal Procedure applicable to a Tribunal or Forum conducting a trial/inquiry under the special or local law.
It is, therefore, necessary to turn upon the definition of offence. Section 4(o), Cr.P.C. defines offence as under:-
“Offence”. “Offence” means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871;”
Indeed, an act and omission, unless punishable by any law for the time being enforced, would never constitute an offence. The phrase ‘punishable by any law for the time being enforced’ knots punishment provided under the existing laws. It would be seen that the Pakistan Penal Code, which defines the “punishment” under section 53 lays down the following kinds of punishment:-
Firstly, Qisas;
Secondly, Diyat
Thirdly, Arsh;
Fourthly, Daman;
Fifthly, Ta’zir
Sixthly, Death;
Seventhly, Imprisonment for life;
Eighthly, Imprisonment which is of two descriptions namely:--
(i) Rigorous i.e., with hard labour;
(ii) Simple;
Ninthly, Forfeiture of property;
Tenthly; Fine.
In the above array of punishment “penalty” does not find a place. No doubt “fine” has been provided therein as a punishment and within the meaning of section 64, PPC even if an offence is punishable with fine only imprisonment can be awarded in lieu of non-payment thereof then the scales provided under section 67, PPC and both these provisions are applicable to even special or local law within the meaning of sections 40, 41 and 42 of the Pakistan Penal Code, but all these provisions can be pressed into service only when the offence is punishable with fine whereas the penalty is a distinctly different from fine. It may, therefore, conveniently be concluded that the contravention of the provisions of the Act try-able by the Adjudicating Officer being confined to the final award of penalty the same are not offences and, therefore, do not fall within the purview of subsection (2) of section 5 of the Code of Criminal Procedure.