Sayed Zahid Hussain, J,--A.R. Awan, the Manager of the Mills, the appellant was issued notice dated 30.1.1991 under Section 114 of the Sindh Local Government Ordinance, 1979 alleging contraventions of Section 99/100 read with part I, II of schedule VI of the said Ordinance, which followed his prosecution on a complaint .under Section 99/100 Ordinance, 1979 read with clause 2, 31 and 59 of schedule VI part II of the said Ordinance. In that the proceedings commenced against him and the appellant pleaded not guilty. The trial that took place resulted in his acquittal by means of order of the Special Magistrate K.M.C. Karachi dated 17.10.1995, it was however observed that he was not "absolved of the liability of obtaining license on payment of licence fee at the rate of Rs,50/- per month i,e, Rs,600/- per year, if he pays the same he shall stand exonerated". This order was assailed by Karachi Metropolitan Corporation through Criminal Acquittal Appeal No, 7 of 96 under Section 417(2) Cr.P.C. This appeal came up for hearing before a learned Judge of the High Court of Sindh at Karachi, and passed the judgment dated 27.6.2005. While deciding the appeal it was held that " In view of the confusion prevailing on both the sides the conviction and sentences can not be awarded to the respondents and consequently the acquittal of the respondents is not interfered with and the acquittal appeals stand dismissed." However, during the course of its judgment, some observations were recorded as contained in paragraph 28 thereof. The judgment of acquittal has not been challenged by K.M.C, however, the appellant herein felt aggrieved of the view expressed by the learned Judge in Paragraph 28 and filed Cr. Petition No, 62-K of 2005, in which leave was granted by this Court on 20.12.2005, alongwith other connected petitions which order reads as follows:-- "Above said petitions are directed against consolidated judgment of Sindh High Court dated 27.6.2005 dismissing respondents' appeal against the acquittal of the petitioners for violation of clauses 2, 29 and 31 read with Item No, 59 of Part-II of Schedule VI of Sindh Local Government Ordinance, 1979 punishable under Section 100(2) of the said Ordinance.
2. Precise charge against petitioners appear to be that they have been running dying textile factories at SITE within the territorial limits of erstwhile Karachi Metropolitan Corporation without obtaining any licence and payment of requisite fee to KMC.
3. Upon their trial they were acquitted by Special Magistrate, KMC Karachi vide order/judgment dated 17.10.1995. Respondents appeals have been dismissed by the High Court through the impugned judgment but the petitioners are seriously aggrieved by concluding Paragraph No, 28 of the judgment in which the High Court while upholding the order of acquittal has determined the scale of fee payable by the petitioners and left it open to the discretion of the respondents to determine the same and collect it with effect from the years 1976-77 to December 1979 and from the year 1980 onwards.
4. It is inter alia contended that while determining the scale of licence fee in appeals against acquittal High Court acted beyond its jurisdiction as it was not competent to determine the question of rate of licence fee in such proceedings and should have left this question for examination by the authority concerned.
5. As important question of law of public importance has been raised in these petitions, leave to appeal is granted to consider whether the impugned judgment of the High Court can be sustained at law.
CMA Nos. 17-K to 19-K/2005:--Operation of the impugned judgment is suspended till decision of the appeals.
Cr. Appeal No, 507 of 2005 and Cr. Appeal No, 508 of 2005 arise in almost similar circumstances which due to identity of the matter as stated by the learned counsel have been heard with this appeal and should stand disposed of by means of the judgment in this appeal.
2. The learned counsel for the parties have been heard. It has been contended by the learned counsel for the appellants that while deciding the appeal the learned High Court has acted beyond the scope of appellate jurisdiction in the matter, as according to him while deciding such appeal it could not issue directions of the nature as are contained in Paragraph 28 of the judgment. It is contended that since the appeal of the respondent was dismissed by maintaining the acquittal order passed by the lower Court, there was no occasion for entering upon the other aspects of the matter, about which the appellants had not been heard even.
3. The learned counsel for the respondent has however, vehemently endeavored to support the judgment of the learned High Court contending that the appellant was liable to pay fee at certain rates as was observed by the High Court in Paragraph 28 of the judgment. He has made reference to a judgment dated 10.12.1989 of Sindh High Court in C.P. No, D-49/1982. The learned Additional Prosecutor General Sindh has addressed arguments on the scope of appellate jurisdiction with reference to Section 423 Cr.P.C. and found himself in quandary to support the observations of Paragraph 28 of the judgment.
4. We have considered the respective contentions of the learned counsel for the parties and also of the learned Additional Prosecutor General Sindh, in the light of the material on record. As noted above the appeal had been filed by the respondent under Section 41.7(2) Cr.P.C. against the order of acquittal passed by the Trial Court. The procedure and manner of disposal of appeals as laid down in Section 423 Cr.P.C. was attracted and required to be followed. Clause (a) of sub-section (1) of Section 423 Cr.P.C. may be of relevance, which reads as follows:-- "S. 423 (i) ...... the Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may: (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or [sent for trial to the Court of Session or the High Court], as the case may be or find him guilty and pass sentence on him according to law;"
5. In the instant matter, while disposing of the appeal this provision of law appear to have escaped the notice of the learned Judge in the High Court as it is clearly laid down that the Court could either reverse the order of acquittal or order further inquiry to be made or order retrial of the accused or find him guilty and sentence him according to law. The acquittal order of the appellant was maintained by the High Court and appeal was dismissed, but at the same time the learned Court proceeded to make observations in paragraph 28 of the judgment which to our understanding fell outside its scope or ambit. It has been the consistent rule followed by the Courts not to embark upon matters not directly arisen for decision or not falling within its ambit of power.
N.S. Bindra, in The Interpretation of Statutes, 7th edition at page 629 has dealt with this aspect as follows:-- "Court should not decide what is unnecessary.--A Court should decide only those questions directly arise from the facts of the particular case before it. It is always inadvisable to travel outside the facts of a particular case and express hypothetical opinions which may only embarrass Judges who may have to consider cases in future which arise on different facts. Lord Blackburn observed in Baroness Wenlock v. River Dee Company: "It is not necessary to decide anything as to the effect of Ashbury Co. V. Riche. The course of argument took makes me think it proper to say - through it is quite true as Mr. Righby said that it was not necessary for the decision in Ashbury Co. v. Riche to do more than decide what the law was with regard to a company formed under the Companies Act, 1862 - that I think the law there laid down applies to all companies created by any statute for a particular purpose. I think that if I were to confine the effect of the decision to companies created under the Act of 1862, and to say it did not extend to such corporation as this, I should do wrong. The law is proverbially uncertain. That cannot be helped. But I think I should unjustifiably add to the uncertainty if I set an example of adhering to my previous reasoning (even should I still think it better than that of noble and learned Lords who decided against it) in every case not precisely involving the very same point."
At page 626, he has discussed about the powers of the Courts as follows:-- "Courts should not extend scope of Act.--It is not for the Court to extend the scope of the Act on the ground of convenience when the language of the law is clear beyond doubt. The scope of the Payment of Wages Act, 1936, being confined to the claims under Section 15, the authority appointed under the Act cannot adjudicate upon any and every dispute in respect of wages. Similarly, the Court cannot interpret the precise language of Section 17 of the Act in any different manner merely because the Legislature had not been logical in providing for all the eventualities in connection with certain dispute. No Court can introduce arbitrary conditions or limitations under a statute, this must be left to the Legislature."
Justice (R) Fazal Karim in his work on Jurisdiction and Judicial Review, page 63 deals with the subject as follows:-- "The Court, sitting in appeal cannot claim higher jurisdiction than the original Court. This was held in F.B. Ali v. State, where the High Court's jurisdiction to interfere with a conviction under the Army Act was barred by Article 199(3) of the Constitution and it was held that the Supreme Court had in appeal no jurisdiction either. The reasons is that "an appeal is a continuation of the original proceeding and therefore it follows that an appellate Court would in the absence of a contrary provision in the statute conferring appellate jurisdiction, be confined in regard to scope of the jurisdiction to the limits of the original forum. This could be illustrated by many examples in which the High Court has been conferred appellate jurisdiction under special laws."
It is thus clear beyond any doubt that while exercising the power, the Court is expected to exercise its jurisdiction and power within the parameters of the statute governing the lis before it.
6. The mere fact that such observations had been made by the Trial. Court also in the concluding para of his order would lend no justification for the appellate Court to repeat the same mistake.
Rather, it could have ignored the same as the appeal of the respondent was being dismissed, leaving the respondent to have resort to the action for recovery of its dues in accordance with law.
7. Reference to provision of chapter 9 of Sindh Local Government Ordinance, 1979, would show that a detailed and comprehensive procedure has been provided for the collection and recovery of taxes. Section 64 of the said Ordinance reads as follows :-- "64. Collection and recovery of taxes etc.--(1) Unless otherwise provided, all taxes, rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner by the persons authorized for such collection ;
(2) All arrears of taxes, rates, tolls and fees and other moneys claimable by a council under this Ordinance shall be recoverable as arrears of land revenue through Government agency or by the council authorized by Government for such recovery through such servants or class servants of the council as may be prescribed."
In the presence of such a power available to it, the respondent clearly was not left remediless or helpless in recovering the taxes or fees if due. It could invoke the relevant provisions of the law for that matter. It may be observed that penal liability was quite distinct from the fiscal liability, which could not be intermingled.
8. In view of the factual and legal position obtaining in the matter, we are left with no doubt whatsoever that neither the Trial Court nor the Appellate Court was called upon to make observations B which had no direct relevancy or nexus with the matter before them. The appellants were facing criminal charge the only decision possibly was about their guilt or otherwise. Since they were acquitted by the Trial Court and the appeal their against filed by the respondent was dismissed by the learned High Court maintaining the acquittal order nothing more was necessary to be done by the Courts. We are, therefore, unable to subscribe to the view expressed by the learned High Court in recording observations in its judgment particularly Paragraph 28 thereof and would set aside that part of the judgment.
Reference by the learned counsel for the respondent to the judgment dated 10.12.1989 in C.P. No, D.49/1982 is of no avail in these proceedings as in that judgment the competency of the Government to revise rates of fee was in issue, which has no relevancy in the context of the subject matter before us.
9. In view of the above the appeals are accepted to the extent mentioned above With no order as to costs.