' SHAHID ANWAR BAJWA, J.--F.I.R. No,76/2008 was registered at Police Station, F.I.A., Karachi on 15-11- 2008 for offences under sections 5,8 and 22/23 of Foreign Exchange Regulations Act, 1947, sections 7, 8 and 20 of Prevention of Electronic Crimes Ordinance, 2007 and under section 420, 467,471, 477-A read with Section 34, P.P.C. It was stated in the F.I.R. That consequent upon enquiry No,118/2008 of F.I.R. Crime Circle, Karachi on complaint of State Bank of Pakistan against illegal foreign exchange operators it had transpired that directors, partners and franchisees of Messrs Khanani and Kalia International being licensed exchange company besides their authorized exchange business have also been indulging in huge illegal transfers of money to the tune of billions of rupees, in collusion with different exchange companies, money changers, businessmen and private parties.
' It was further stated in the F.I.R. That enquiry had further revealed that in order to conduct this illegal business of foreign exchange racketeering the partners/ directors of Messrs Khanani and Kalia International besides their official website for transactions i.e, www.Remitton.Com and www .
Kkionline .Com also created fraudulently with criminal intention replica website www.Click.Pk.Net without the knowledge of State Bank of Pakistan for effecting illegal transfers of money from and into Pakistan in a clandestine manner. This illegal exchange system worked side by side with their declared system being controlled from their head office network situated at 110-115 Samia Tower, I. I.
Chundrigar Road, Karachi in collusion with their franchisees as well as number of further offices all over Pakistan. For this purpose very heavy computer system having sophisticated heavy duty machines were installed at the head office premises having a network of enormous clients stationed inside and outside Pakistan having direct automated access through internet codes and passwo rds. In order to facilitate the business of illegal exchange the accused persons used services of Messrs Al-Zarooni Exchange, U.A.E. Having Atif Polani and Javed Qasim as the focal persons to facilitate and execute all such transactions in the United Arab Emirates.
2. As per modus operandi discovered during the course of enquiry a large number of exchange companies/firms and agents outside Pakistan used to receive amounts from Overseas Pakistanis on behalf of accused persons for remitting the same to Pakistan but instead of transferring these amounts to Pakistan through the authorized banks duly declared through State Bank of Pakistan they either used to retain the same abroad or used to transfer them to any of the following currency accounts/benami accounts in Pakistan opened in collusion with the other persons/employees secretly and illegally, in order to conceal these remittances. These remittances were illegally held in these foreign currency accounts and were never sold/declared to State Bank of Pakistan while the equivalent amounts payable against these remittances were disbursed in Pakistani rupees to the relatives/recipients of such Overseas Pakistanis from their own resources in Pakistan. Thus the accused persons and their franchisees/agents deprived Government of Pakistan of Foreign Exchange to the tune of billions of dollars in past few years.
3. In order to further misuse this foreign exchange retained in these foreign currency accounts the accused persons with common objective and criminal intention in collusion with concerned bank officers and others, manipulated the transfer back of this foreign exchange to different foreign companies, individuals and exporters as "Hawala Transfers" on behest of large number of businessm en, to meet the under invoiced amounts required to be paid illegally to such foreign exporters in connection with their mis-declared exports to evade import duty and taxes. Besides, huge Hawala Transfers were made to different banks, construction companies and institutions abroad illegally, after taking substantial commission being illegal gains. Thus this huge foreign exchange which should have been earned by Pakistan was reversed back to other countries causing loss of billions of dollars to Pakistan in terms of foreign exchange to facilitate those who earned money in Pakistan through illegal means.
4. The enquiry further revealed that the accused persons for the purpose of illegal transfer of money had active connivance of some Director/Partners of other exchange companies and money changers and they used to facilitate, assist and accommodate each other in give and take of illegal foreign exchange as per market requirements. Supplementary challan was submitted on 24-2-2009 in which Muhammad Hanif S.Kalia, Abdul Munaf Kalia and Muhammad Javed Khanani (applicants in Crl. B.As. Nos.291 and 292/2009) were sent up for trial. For the same charge sheet Atif Aziz Polani was shown as one of the absconder accused persons. Said Atif Aziz Polani was subsequently arrested when he came back to Pakistan on 15-5-2009. Crl. Bail Applications Nos.
1123/2009 and 1124/2009 have been filed by the said Atif Aziz Polani.
5. Through order dated 4-9-2009 bail applications of applicants in Crl.B.As. Nos.291 and 292/2009 were dismissed by learned Sessions Judge, Karachi South while through another order, dated 17-9- 2009 Bail applications of Atif Aziz Polani applicant in Crl. B.As. Nos. 1123 and 1124/2009 were also dismissed by learned Sessions Judge, Karachi South. Bail Application No,291/2009 is in respect of offences under Foreign Exchange Regulations Act, 1947 and Bail Application No,292/2009 is in respect of offences under Prevention of Electronic Crimes Ordinance, 2008. Similarly Bail Application No,1124 of 2009 is in respect of offences under Foreign Exchange Regulations Act, 1947 and Bail Application No, 1123/2009 is in respect of offences under Prevention of Electronic Crimes Ordinance, 2008.
6. It is stated in the Bail Applications Nos.291 and 292 of 2009 that Messrs Khanani and Kalia International (Pvt.) Limited is being incorporated under the Companies Ordinance, 1984 and is authorized and licensed by State Bank of Pakistan to deal with Foreign Currency under the Foreign Exchange Regulations Act, 1947. It is further stated that on the night between 7th and 8th November, 2008 a team of FIA raided the offices of Messrs Khanani and Kalia International (Pvt.)
Limited situated at Saima Trade Towers Parchi. It is further stated that during the jame night applicant Muhammad Javed Khanani was arrested from Lahore and applicant Abdul Munaf Kalia was arrested from Karachi. It is further stated that custody of Abdul Munaf Kalia was transferred to Lahore and investigation team of FIA adopted all coercive measures and pressurized the accused persons to confess their crimes and come to terms but on their refusal they have been involved in the case of F.I.R, lodged at Lahore. It is further alleged that F.I.A, in order to further humiliate and malign the applicants in the media registered a F.I.R, at Karachi being F.I.R. No,76/2008. Consequent upon registration of F.I.R, on 20-11-2008 the complainant/I.O of F.I.A. Crime Circle Karachi took custody of the accused Abdul Munaf and Muhammad Javed and obtained their physical remand.
It is further stated that on 28-11-2008 applicant Muhammad Hanif Kalia is an old, infirm and sick person suffering from diabetes mellitus for last 20 years, hypertension for last 10 years and unstable angina as well as kidney and bladder complications and various other diseases, were claimed to be wrecking body of applicant Muhammad Hanif Kalia. It is further stated that applicant had been made a scapegoat by F.I.A. It is further stated that the allegations against the applicants are of general in nature. Regarding various grounds stated in the application, I will turn to them when I will refer to submissions made by the leamed counsel.
7. In case of applicant in Crl. B.As. Nos. 1123/2009 and 1124/2009 it is claimed that the applicant is neither Director nor Partner nor employee nor has any affiliation with Messrs Khanani and Kalia International (Pvt) Limited. It is further stated that applicant has been living in Dubai for the last 20 years and is running a business under the name of Atif Polani Trading LLC. It is also stated that besides the said business he was having part time employment with Messrs Al-Zarooni Exchange Company owned by a U.A.E. National, Mr. Sohail Al-Zarooni.
8. Mr. A. Q Halepta, learned counsel for the applicants in Crl. B.As. Nos.291 and 292/2009 and made the following submissions:
8. Mr. A. Q Halepta, learned counsel for the applicants in Crl. B.As. Nos.291 and 292/2009 and made the following submissions: IN RESPECT OF OFFENCES UNDER PREVENTION OF ELECTRONIC CRIMES ORDINANCE, 2007 (THE PECO)
(1) Learned Counsel referred to section 25 of PECO to contend that the Federal Investigation Agency had no authority to investigate and prosecute the offence under PECO.
(2) Section 31 of the PECO provides for constitution of Information and Communication Technologies Tribunal (hereinafter referred to as the Tribunal). Thereafter learned counsel referred to section 23 of the PECO to contend that the offence is only cognizable and triable by the Tribunal.
Therefore, Sessions Judge, Karachi South had no jurisdiction whatsoever to try the offence.
(3) F.I.A. Is constituted under the Federal Investigation Agency Act, 1975. Federal Investigation Agency had no jurisdiction to register F.I.R. Or investigate and prosecute any offence under the PECO because the offence is not a scheduled offence under the Federal Investigation Agency Act, 1975 and it has to be police who can act in this regard in terms of provisions contained under section 154 to section 173, Cr.P.C.
(4) Under section 193(1), Cr.P.C. Sessions Judge in any case cannot directly take cognizance.
Sessions Judge is not Tribunal under section 31 of PECO, therefore, Sessions Judge could not even have taken cognizance. Thereafter, as far as PECO is concerned, Sessions Judge is corum non judice.
10. Learned counsel in this regard relied upon State v. Hamtho 1971 SCMR 686, Sabir Ali v. Khalil Ahmed Bajwa and others 2005 MLC 1127, Chaudhry Abid Saeed v. The State 2002 PCr.LJ 1818.
' IN RESPECT OF OFFENCES UNDER THE FOREIGN EXCHANGE REGULATIONS ACT, 1947 (THE FERA)
(1) Under section 23-A of the FERA every Sessions Judge for the area within the territorial limits of his jurisdiction is to be a Tribunal for trial of an offence punishable under section 23. In terms of provisions contained in subsection (3) of section 23-A, a Tribunal under FERA has all the powers of a Magistrate of first class and under section 32 of the Cr.P.0 a Magistrate of first class can award the maximum sentence of imprisonment for a term not exceeding three years including such a solitary confinement as authorized by law and fine not exceeding Rs,45,000.
(2) Applicant Muhammad Javed Khanani and Abdul Munaf Kalia were arrested on 20-11-2008 and applicant Muhammad Hanif Kalia was arrested on 28-11-2008. They have remained behind the bars since then. Maximum sentence under section 23 of FERA is two years. During their incarceration the applicants have earned remission of 30 days granted on 27-10-2008, another remission of 60 days granted by I.-G. Prisons on 12-1-2009% under jail rules every prisoner is given remission of 8 days every month and for last 13 months of imprisonment he has earned remission of 104 days, on 27-12-2008 Home Office of Province of Sindh gave remission of 60 days and special remission of 30 days was granted by the Superintendent Jail on 26-11-2009. Therefore, the applicant has practically completed much more than half of maximum possible sentence under FERA. The applicant, in any case, is entitled to the benefit of section 382-B, Cr.P.C. The applicants have almost served their sentence. Learned counsel in this connection relied upon Shah Hussain v.
State PLD 2009 SC 460.
(3) More than one year has elapsed since their arrest and the trial Court is still busy in proclamation proceedings under section 87 Cr.P.C. Because out of absconding accused only one has been arrested while seven are still absconding. In support of this contention that in such like cases delay in trial is a valid ground for grant of bail learned counsel relied upon PLD 2005 Kar.
255.
(4) Under section 23(4) of FERA only a Director etc. Of a company is to be charged with an offence by the company if he is "knowing" party to the offence. Learned counsel in this regard referred to statements of P.W.9, Fayyaz, P.W.8, Sindhu, P.W.7, Shuja and P.W.6 Razzak recorded under section 161 Cr . P. C .
(5) Learned counsel referred to S.R.O. 890(1)/2008 issued by the Finance Division, Government of Pakistan and published in the Federal Gazette on August 28, 2008 and submitted that the Federal Government has no jurisdiction or power to declare an offence under section 23 of FERA to be non- bailable. Learned counsel submitted that such declaration by the Federal Government is an act mala fide in law. He referred to PLD 1997 Lahore 38. Relying on 1999 PCr.LJ 53 learned counsel argued that the offences alleged are bailable and his clients are entitled to concession of bail.
(6) Learned counsel that apprehension has been expressed by the Court below that if the applicants are granted bail they are likely to flee the country. In presence of power with the Federal Government to place a person on Exit Control List (ECL) this apprehension is not at all well founded, the learned counsel submitted.
(7) That all the evidence is either in shape of documents or electronic record and it has already been taken over by the F.I.A. And business licence of the applicants' company has also been cancelled. Therefore there cannot be any question of the applicants tampering with evidence.
Learned counsel relied upon Tariq Bashir and 5 others v. The State, PLD 1995 SC 34.
(8) The fact that amounts involved are large cannot be a ground for refusal of concession of bail.
Learned counsel relied upon Ijaz Akhtar v. The State, 1978 SCMR 64; Mir Akhtar Khan Khattak v. The State PLD 1982 Pesh. 128; Abdul Hay-uz-Zafar v. The State1983 PCr.LJ 2010 and Abdul Hai Siddiqui v.
The State 1993 PCr.LJ 446. In support of his proposition that the benefit of doubt entitled applicants to bail learned counsel relied upon Sikandar A. Karim v. The State, 1995 SCMR 387 at page 408.
11. Dr. Faroogh Nasim supplemented submissions of Mr. A.Q. Halepota and made the following submissions.
1. If a person is prosecuted under two statutes, for the purpose of bail the statute which prescribes lower punishment is to be considered. He relied upon Muhammad Younus and another v. The State, 2001 PCr.LJ 157; Liaqat Ali v. The State, 1998 PCr.LJ 1955; Akhtar Hussain Shah v. The State, 1999 PCr.LJ 225 and 1992 PCr.LJ 568.
2. For the offences under PECO applicable Article would be Article 164 of Qanoon-e-Shahadat, 1984 and it is settled that under Article 164 most stringent proof is required. He relied upon Haji Sirajuddin v. Haji G.M. Khan, 1990 CLC 331 and Arif Hashwani and 3 others v. Sadaruddin Hashwani and 3 others, PLD 2007 Karachi 448.
3. None of the documents alleged against the applicants have been shown to them. He relied upon Muhammad Luqman v. Bashir Ahmed, PLD 1994 Karachi 492, and Miss Haleema Banker and another v. Haji Ghulam Rasool Soomro, 1994 CLC 2422.
4. Seriousness of charge is no ground for denying facility of bail. He relied upon Chaudhry Muhammad Aslam v. The State, 1992 MLD 880.
5. It is alleged that there had been benami transactions. No person on whose behalf the alleged transactions were executed has been named. Learned Counsel relied upon Makhdoom Javed Hashmi v. The State and 2 others, 2003 PCr.LJ 266.
12. Mr. Shaukat Hussain Zubedi learned counsel for the appellant and Crl. Bail Applications Nos.1123 and 1124 of 2009 made the following submissions:- 'IN RESPECT OF OFFENCES UNDER PREVENTION OF ELECTRONIC CRIMES ORDINANCE, 2007 (THE PECO)
1. The applicant was arxested when he returned from Dubai on 15-5-2009. Applicant is not the main accused. He is only shown in the F.I.R. As focal person who in Duabi facilitated execution of all the alleged transactions.
2. The main accusation is that applicant in Crl. Bail Application Nos. 291 and 292 of 2009 being life and soul behind M/s. Khanani and Kalia International had dealt with Messrs Al-Zarooni Exchange United Arab Emirates. The applicant in Crl. Bail Applications Nos.1123 and 1124 of 2009 had nothing to do with Messrs AlZarooni Exchange U.A.E. He is not even alleged to have been involved in any deal in any manner whatsoever.
3. Date and period of occurrence is shown in the F.I.R. As "20072008" . Since 2001 applicant in Crl. Bail Applications Nos.1123 and 1124 of 2009 has been continuously residing in Dubai. Learned counsel referred to page 33 of the bail application which shows that Atif Polani Trading (LLC) was registered under the Commercial Registrar of Department of Economic Development, Government of Dubai on 24-6-2001.
4. That the said applicant is neither a director nor an employee of Messrs Khanani and Kalia International (Pvt.) Ltd. He has neither opened nor operated any FC Account of Khanani and Kalia International nor has been involved in any benami transaction.
5. The applicant has been resident in Duabi all along an no witness had stated that he received remittance from any one or paid to any one in Duabi.
6 Learned counsel referred to definition of data, electronic system, electronic device contained in clauses (e), (1) and (i) of subsection (1) of section 2 of PECO and submitted that there has been no evidence that he has any access to an such data, electronic system or electronic device. No witness has come forward to state in the statement under section 161 Cr.P.C. Even with an iota prima facie evidence linking the applicant with any such offence. Similarly learned counsel referred to section 8 of PECO and submitted that section 8 is attracted only when there is an interference with data, electronic system or electronic device. No prima facie evidence of any such interference has been stated in any statement.
7 Sections 7 and 8 have been added with mala fide intention for to making the offence non- bailable.
8. Learned counsel referred to section 20 of PECO and submitted that if there is no evidence about use, misuse or illegal use of data, electronic system or electronic device. Section 20 in any case cannot be attracted.
9. It has been alleged in the F.I.R. That the applicant used services of Messrs Al-Zarooni Exchange, U.A.E. But no owner, director or employee of Messrs Al-Zarooni Exchange, U.A.E. Has been cited as an accused in this matter. Not even any person from Messrs AlZarooni Exchange, has been cited witness in the case.
' IN RESPECT OF OFFENCES UNDER THE FOREIGN EXCHANGE REGULATIONS ACT, 1947 (THE FERA)
13. Learned counsel submitted that the applicable sections are 5, 8,22 and 23. Learned counsel referred to section 5 and contended that this is applicable only to person resident in Pakistan and the applicant was never resident in Pakistan. Thereafter learned counsel referred to section 8 and stated that is in respect of gold, sliver or currency notes and there is no such allegation against the applicant. In any case, case against the applicant is case of further inquiry. While concluding the learned counsel submitted that he has been implicated merely because one of the main accused is his relative and the applicant refused to become a witness. It is for this reason that applicant is being forced to face the music.
14. Mr. Shahab Sarki, learned Standing Counsel made the following submissions: - ' Section 31 of PECO is answered by section 45 of PECO. The present proceedings being before Sessions Judge and since the Tribunal has not yet been constituted, proceedings before Sessions Judge are competently filed and maintained.
2. In respect of jurisdiction of F.I.A. Learned counsel referred to S.R.O. No, 2006(1)/2008, dated 12-2- 2008 and contended that jurisdiction has been conferred upon F.I.A. In respect of offences under PECO.
3. Although Messrs Khanani and Kalia International has reported website for transactions i.e, www.
Remitton.Com to State Bank, they surreptitiously made another website www . Clickpk. Net. This website was not reported to the State Bank and 70% of the remittances took place through this website and such action on part of the applicant constituted 'suppression of date' under section 8.
Therefore sections, 7, 8 and 9 of PECO are completely attracted to the offences committed by the applicants. Severely affected due to illegal acts of applicants. State Bank has reported that this crackdown on inward remittances into Pakistan from Overseas Pakistanis have increased remittances by 26%. Therefore, the argument that the punishment is less than 10 years and therefore bail is a right is not a tenable argument.
6. In respect of applicant in Crl. Bail Applications Nos.1123 and 1124 of 2009, the learned counsel submitted that the applicant is real nephew of the main accused/ applicant in two other bail applications. He has been working with Messrs Al-Zarroni Exchange, in Duabi. Dubai is hub of remittances all over the world. He submitted that applicant was the focal person. He further submitted that father of the applicant in Crl. B.As. Nos.1123 and 1124/ 2009 is himself running an exchange company in the name of Polani Exchange Company and there was agreement between Messrs Khanani and Kalia International and Polani Exchange Company. Learned counsel further submitted that brother and father of applicant in Crl. B.As. Nos.1123 and 1124/ 2009 are still absconders.
4. Learned counsel referred to S.R.O. No,890(I)/2008, dated 26-8-2008 to contend that offences under FERA are cognizable and non-bailable.
5. Bail has to be deiced on case to case basis. In this case entire economy of the country has been that no malice has been pleaded or established on part of the government against any of the applicant. The case involves reputation of the country and the economy and the Court should read the law according to the circumstances.
15. Mr. Ibrar Hassan learned counsel for the State Bank referred to statements of witnesses Ghulam Rabbani, Muhammad Furqan, Muhammad Hussain, Asif Maqbool and Kamal Mumtaz recorded under section 161 Cr.P.C. And contended that according to these statement applicant in Crl. Bail Applications Nos.1123 and 1124 of 2009 is directly and clearly implicated and alleged to be directly responsible for 104 Billion of inward Hawala. Learned counsel submitted that it was Altaf Khanani who was running AlZarooni Exchange. He further submitted that father and brother of applicant in Crl. B.As. Nos.1123 and 1124 of 2009 are still absconders.
16. Exercising his right of reply Mr.A.Q. Halepota made the following submissions:-
1. Learned counsel referred to supplementary charge-sheet No,20/ 2009 dated 24-2-2009 which is stated to be submitted before "Court of District and Sessions Judge (PECO Tribunal) South Karachi."
Learned counsel submitted that this is incompetently filed because the Sessions Judge is not the PECO Tribunal because firstly no such Tribunal has yet been constituted and secondly each bench of the Tribunal is required to consist of at least two members. Learned counsel submitted that even under section 45 of PECO the Sessions Judge is not competent. Learned counsel submitted with reference to section 29, Cr.P.C. And its Second Schedule that since under PECO maximum punishment is 7 years and Sessions Judge is not competent to try such offence, it has to be a Magistrate First Class.
2. In any case State has filed prosecution not before the Sessions Judge per se but before the Sessions Judge claiming him to be the Tribunal.
3. F.I.A. Has no jurisdiction to investigate unless a special cell is constituted. In this regard he referred to section 25 of PECO and submitted that no such cell has been constituted and therefore the offence had to investigated by police.
4. As far as website www.Clickpk.Net it was opened by Mr. Taha employee of Messrs Khanani and Kalia International and the applicant in Crl. B.As. Nos.291 and 292/2009 had no knowledge of it.
5. Khanani and Kalia International (Pvt.) Limited is a company incorporated under the Companies Ordinance, 1984. Learned counsel referred to section 21 of the PECO to contend that a company can be punished only with fine and if offence is punishable with fine only then section 67 of P.P.C. Kicks in and maximum possible punishment is 6 months.
6. Notification dated 26-8-2009 is ultra vires of the provisions contained in subsection (2) of section 23 of FERA and therefore, has to be struck down to the extent that it made offences under FERA as non-bailable.
17. Exercising his right of reply Mr. Zubedi made the following submissions:--
1. Statements under section 161 Cr.P.C. Are based on hearsay. Out of 5 witnesses referred to by learned counsel for State Bank 4 are employees of Messrs Khanani and Kalia International. No document has been obtained from the Duabi Government in respect of said Messrs Al-Zarooni.
Messrs Al-Zarooni Exchange is owned by Sohail Al-Zarooni and he has not been cited as an accused person. There is no evidence that any message was sent by applicant in Crl.B.As. Nos.1123 and 1124/ 2009 or any payment was made by him on his own behalf or on behalf of Messrs Al- Zarooni Exchange. It is a case of further inquiry. Learned counsel replied upon Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and other, 2008 SCMR 240.
17-A. Since Mr. A.Q. Halepota in his reply has raised the question that even under section 45 of PECO when considered with Second Schedule to the Cr.P.C. Sessions Judge is not competent to try an offence under FERA, Learned State Counsel and learned counsel for the State Bank were requested to assist Court on this point i.e, whether Sessions Judge acting as Sessions Judge could try the offence under PECO. Mr. Ibrar Hassan submitted that under section 23(1) of FERA it is provided that it will be tried by a Tribunal and section 23-A provided that every Sessions Jude shall, for the areas within territorial limits of his jurisdiction be a Tribunal in respect of offences under the FERA. Learned counsel referred to sections 235 and 239(d) of the Cr.P.C. He submitted that no prejudice by trial by Sessions Judge has been caused to the applicant and no such prejudice has been pleaded. He further submitted that for the purpose of bail this ground is not available.
18. I have considered the submissions made by the learned counsel and have also gone through the record as well case law cited by the learned counsel. I must record here any personal debt of gratitude to all the learned counsel and particularly to Mr. Abdul Qadir Halepota.
19. I will first take up the two bail applications (Criminal Bail Applications Nos.291 and 1124 of 2009) in respect of the Foreign Exchange Regulations Act, 1947. Mr. Halepota referred to S.R.O. 890(1)/2008 issued by the Finance Division, Government of Pakistan and published in the Federal Gazette on August 28, 2008 and submitted that the Federal Government has no jurisdiction or power to declare an offence under section 23 of FERA to be non-bailable. Learned counsel submitted that such declaration by the Federal Government is an act mala fide in law. The said S.R.O. Is in the following words: ' S.R.O. 890(I)/2008.---In exercise of powers conferred by subsection (2) of section 23 of the Foreign Exchange Regulations Act, 1947 (VII of 1947) the Federal Government is pleased to declare the period ending the 30th June 2009 to be the period for which all offences punishable under the said section 23 shall be cognizable and non-bailable.
20. This S.R.O. Is stated to be issued in exercise of powers under subsection (2) of section of the FERA. Said subsection (2) is in following words:---
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 any offence punishable under this section shall be cognizable and non-bailable for such period as the Federal Government may from time to time, by notification in the official Gazette, declare.
21. A bare reading of subsection (2) of section 23 of the FERA indicates that two fold powers have been conferred upon the Federal Government: (i) to declare an offence as cognizable and (ii) to declare an offence as non-bailable. And that is what has been precisely done by the Federal Government.
22. Second limb of argument of the learned counsel was that maximum punishment under section 23-A of the FERA is two years. This argument was in the form of tripod: it has three legs. First leg was that every Sessions Judge for the area within the territorial limits of his jurisdiction is to be a Tribunal for trial of an offence punishable under section 23. In terms of provisions contained in subsection (3) of section 23-A, a Tribunal under FERA has all the powers of a Magistrate of first class. Under section 32 of the Cr.P.C. a Magistrate of first class can award the maximum sentence of imprisonment for a term not exceeding three years including such a solitary confinement as authorized by law and fine not exceeding Rs,45,000. Second leg was that applicant Muhammad Javed Khanani and Abdul Munaf Kalia were arrested on 20-11-2008 and applicant Muhammad Hanif Kalia was arrested on 28-11-2008. They have remained behind the bars since then. Maximum sentence under section 23 of FERA is two years. During their incarceration the applicants have earned remission of 30 days granted on 27-10-2008, another remission of 60 days granted by I.G.
Prisons on 12-1-2009, under jail rules every prisoner is given remission of 8 days every month and for last 13 months of imprisonment he has earned remission of 104 days, on 27-12-2008 Home Office of Province of Sindh gave remission of 60 days and special remission of 30 days was granted by the Superintendent Jail on A 26-11-2009. Therefore, the applicant has practically completed much more than half of maximum possible sentence under FER A. The applicant, in any case, is entitled to the benefit of section 382-B, Cr.P.C. The applicants have almost served their sentence.
Learned counsel in this connection relied upon Shah Hussain v. State PLD 2009 SC 460 and third leg was that more than one year has elapsed since their arrest and the trial Court is still busy in proclamation proceedings under section 87, Cr.P.C. Because out of 8 absconding accused only one has been arrested while seven are still absconding. In support of his contention that in such like cases delay in trial is a valid ground for grant of bail learned counsel relied upon PLD 2005 Karachi 255.
23. As to the first leg. Reference has to A be, first of all, made to provisions of section 23-A of FERA.
The said section is in the following words: 23-A. Tribunal--its powers, etc.---(1) Every Sessions Judge Shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under section 23.
(2) A Tribunal may transfer any case for trial to an Additional Sessions Judge within its jurisdiction who shall, for trying a case so transferred be deemed to be a Tribunal constituted for the purpose.
(3) A Tribunal shall have all the powers of a Magistrate of the First Class in relation to criminal trials, and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trials before such Magistrate, and shall also have powers, as provided in the said Code in respect of the following matters, namely:---
(a) directing the arrest of the accused;
(b) issuing search warrants
(c) ordering the police to investigate any offence and report;
(d) authorizing detention of a person during police investigation;
(e) ordering the release of the accused on bail.
(3-A) For the purpose of subsection (3), the Code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if an offence under this Act were one of the offences referred to in subsection (1) of section 337 of the Code.
(4) All proceedings before a Tribunal shall be deemed to be a judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Cole, and for the purposes of section 196 thereof, and the provisions relating to the execution of orders and sentences in the Code of Criminal Procedure, 1898, shall so far as may be apply to orders and sentences passed by a Tribunal.
(5) As regards sentences of fine, the powers of a Tribunal shall be as extensive as those of a Court of session.
(6) The State Bank of Pakistan or any other person aggrieved by a judgment of a Tribunal may, within three months from the date of the judgment, appeal to the High Court.
24. Under subsection (1) it is provided that for trial of offences falling under section 23 of the Act, every Sessions Judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal.
Thus a Sessions Judge trying any offence under section 23 of FERA does act as a Court of Sessions: it is merely acting as a Tribunal for the purpose of trial of offences, It does not have any more powers of a Court of Sessions. Then what are it powers when it is acting as a Tribunal? Answer to question had to be provided and subsection precisely did that by providing that the Tribunal shall have all the powers of a Magistrate of the First Class in relation to criminal trials, and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trials before such Magistrate. Powers of Magistrate First Class are, as also Magistrates of other classes are prescribed in section 32 of the Criminal Procedure Code. It provides that a Magistrate of First Class can impose maximum punishment for a term not exceeding three years including such solitary confinement authorized by law and fine not exceeding forty five thousand Rupees. When this provision is read with provisions contained in section 65 of the Pakistan Penal Code maximum punishment for non-payment of fine can only one fourth of maximum substantive imprisonment that can be awarded under section 23.
25. Maximum punishment prescribed under section 23 is two years. Therefore if non-payment of fine is assumed, maximum punishment is sentence of imprisonment for B two and a half years.
Contention of the learned counsel was that this quantum of prescribed sentence does not fall within the prohibited degree prescribed under section 497, of Cr.P.C.
26. Second leg was that the applicants, if remissions are taken into consideration have already competed a substantial part of teir sentences. And third limb was regarding inordinately slow speed with which the trial is moving.
27. While supplementing arguments on this point Dr. Nasim submitted that seriousness of charge is no ground for denying facility of bail. He relied upon Chaudhry Muhammad Aslam v. The State, 1992 MLD 880. The Applicant in this case charges with an offence under sections 408/ 420/468/34 P.P.C.
It was held by a Single Bench of this Court as under: ' The offence with which the applicant is charges does not fall within the prohibitory clause of section 497, Cr.P.C. The grant of bail in such a case is a rule, while its refusal should be an exception.
The perusal of the F.I.R. And its relevant record makes it clear that it was not a case of exceptional nature. The only fact that the amount so embezzled is sufficiently large, by itself would be no ground for refusing bail. This was in fact view taken by the Supreme Court in case of Ijaz Ahhtar v.
The State reported in 1978 SCMR 64. The well known case of Haji Wali Muhammad v. The State reported in 1969 PCr.LJ 664, is the nearest parallel to the present case, wherein it was held that where the charge was short of involving sentence of death or transportation for life, bail would ordinarily be allowed disregarding ground of seriousness or anti-social nature of the offence. It may be added that accused in that case was involved in smuggling of gold valued at Rs, One crore. The case of Brig. (Ret'd.) Sahib Dad Khan v. The State and 2 others, reported 1977 PCr.LJ 676 provides a guideline for exercise of discretion while deciding bail applications in a case of this nature where allegations relating to rendition of accounts and veracity of various documents are likely to consume a great deal of time.
28. Learned Standing Counsel for the State submitted that the case involves reputation of the country and the entire economy and the Court should read the law according to the circumstances. Guidelines for grant of bail have been laid down lucidly and in ringing words, by the honourable Supreme Court in Tariq Bashir's case (supra). It was a case where alleged offence was dacoity. The Supreme Court first referred to provisions of sections 496 and 497 Cr.P.C. And then observed as under:--- "It is crystal clear that in bailable offences the grant of bail is a right and not a favour, whereas in non-bailable offences grant of bail is not a right but concession/grace. Section 497 Cr.P.C. Divides non-bailable offences into two categories i.e, (i) offences punish-able with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than 10 years. The principle to be deduced from provision of this law is that in non-bailable offences falling in second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail would be declined in extraordinary and exceptional cases, for example---
(a) where there is likelihood of abscondence of the accused;
(b) where there is likelihood of accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict.
29. Thus offence under the FERA is non-bailable but it is punishable with maximum imprisonment of two years, and two and a half if imposition of fine and thereafter non-payment thereof are also reckoned in. As far as abscondence from Pakistan is concerned that can be adequately safeguarded by taking into custody passports of the applicant. Additionally the Government may, in accordance with the law, place their names on exit control list. All the evidence is in the form of documents or electronic record and it has already been taken into custody the F.I.A. Licence issued to Messrs Khanani and Kalia (Pvt.) Ltd. Has been cancelled by the State Bank of Pakistan and therefore the applicant cannot, at least it so appears at this stage, commit the offence alleged against them. There is no allegations of any of the applicants being previous convicts. There as far as four examples stated in Tariq Bashir are concerned they are not attracted to the case of the applicants.
30. This brings us to statement by the State counsel that the case involves reputation of the country and the entire economy and the Court should read the law according to the circumstances. Seriousness of an offence is something for the Legislature to take into consideration. One yard of amount of seriousness that the Legislature attached to a particular offence is the amount of punishment prescribed for it. That is why capital punishment is provided for murder and three months for mischief under section 426, P.P.C. In case of trespass, Legislature in its wisdom provides with escalating scale of punishments: Criminal trespass (three months: 447); House trespass (one year: 448) House trespass in order to commit offence punishable with imprisonment (two years: 451) House trespass in order to commit offence punishable with imprisonment for life (ten years: 450 and House trespass in order to commit an offence punishable with death: 449). This scale goes on and one can, without a significant degree of prescience see is strewn all across the sinews and scheme of the Pakistan Penal Code, others statute and indeed in every system of jurisprudence every where in the world. Thus Legislature which is represents the will of the political sovereign in its wisdom chooses to assign a particular level or degree of seriousness to a particular offence and the gauge used by the Legislature is quantum of punishment. This Court cannot sit in judgment over the wisdom of the Legislature. It can neither supplant nor assume nor arrogate to itself the function which our Constitution has conferred upon the Legislature. In the present case what the learned Standing counsel seems to be saying was that though the Legislature has prescribed punishment of two years but given the astonishingly high figures of rupees involved, the court should treat this offence differently from other offences where punishment involved is also two years. If I do that I would be legislating rather than applying the law. Therefore irrespective of the amount involved, this Court will have to deal with the application of the applicants in ID accordance with the law and the law prescribes maximum punishment of two years. Therefore in my opinion the applicants are entitled to bail. Therefore. Bail Applications Nos.291 and 1124 of 2009 are allowed. The applicants are admitted to bail for an amount of Rs,1,000,000 (one million) each with P.R. Bond and two sureties in the like amount to the satisfaction of the Trial Court. Applicants shall also be required to deposit their passports and original CNICs with the trial Court.
31. In view of my above conclusion I do not think I need to refer other submission of the learned counsel in respect of bail Applications Nos.291 and 1124 of 2009.
32. This brings me to Criminal Bail Applications Nos.292 and 1123 of 2009 which application are for offences under PECO. One of contentions of Mr. A.Q. Halepota was that F.I.A. Is constituted under the Federal Investigation Agency Act 1975. Federal Investigation Agency had no jurisdiction to register F.I.R. Or investigate and prosecute any offence under the PECO because the offence is not a scheduled offence under the Federal Investigation Agency Act, 1975 and it has to be police who can act in this regard in terms of provisions contained under section 154 to section 173, Cr.P.C. In reply Mr. Shahab Sarki referred to S.R.O. No,2006(I)/2008 dated 12-2-2008 and contended that jurisdiction has been conferred upon F.I.A. In respect of offences under PECO.
33. Federal Investigation Agency was established under the Federal Investigation Agency Act, 1974.
Under section 3 of the Act of 1974 F.I.A. Is vested with jurisdiction to inquire into and investigate offences specified in the Schedule to the Act of 1974. Under section 5 in respect of such offences it has the same powers, duties, privileges and liabilities as are conferred upon officers of provincial police in relation to offence under the Code of Criminal Procedure or any Other law for the time being in force. In the Schedule apart from some 70 or so sections of the Pakistan Penal Code, some 30 plus statutes are specified. PECO is not one of the statutes specified in this regard. However section 6 of the Act, 1974 empowers the Federal Government that it may, by notification in the official Gazette amend the Schedule so as to add any entry thereto, or modify or omit any entry therefrom. It is in exercise of such powers under section 6 of the Act of 1974 that Notification dated 12-2-2008 was issued. The Notification is in the following words: PART II Statutory Notification (S.R.O.)
GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR NOTIFICATION Islamabad, the 12th February, 2008.
S.R.O. 206(I)/2008.---In exercise of the powers conferred by section 6 of the Federal Investigation Agency Act, 1974 (VIII of 1975) the Federal Government is pleased to direct that the following further amendment shall be made in the schedule of FIA Act,1974. After entry 26, the following new entry shall be added namely:- "(27) Offences punishable under the Prevention of Electronic Crimes Ordinance, 2007 (LXXII of 2007)."
34. Thus in view of Notification dated 12-2-2009 which has the legal effect of adding an entry to the Schedule to the Act of 1974 and keeping in view the fact that under section 6 the Federal Government has such a power, the contention of Mr. Halepota loses its steam.
35. Mr. Halepota also referred to section 25 of PECO to contend that the Federal Investigation Agency had no authority to investigate and prosecute the offence PECO. In fact this was his first objection and the above decided objection in respect of non-inclusion in the Schedule was his second objection. Since the learned counsel referred to section 25 of the PECO it may be of advantage to reproduce the same and it is as under:--
25. Establishment of investigation agencies and prosecution. ---The Federal Government shall establish a specialized investigation and prosecution cell within Federal Investigation Agency to investigate and prosecute the offences under this Ordinance: ' Provided that till such time any agency is so established, the investigation and prosecution of an offence shall be conducted in accordance with the provisions of the Code: ' Provided further that any police officer investigating an offence under this Ordinance may seek Assistance of any special investigation agency for any technical input, collection and preservation of evidence.
36. Section 25 provides, rather mandates because the word used is "shall", that the Federal Government shall establish a special investigation and prosecution cell in the F.I.A. For the purpose of investigation and prosecution of offences under PECO. First proviso provides that till such a cell is constituted investigation and prosecution shall be conducted in accordance with the provisions of the Code.
37. Contention of Mr. Halepota was twofold. Firstly no such cell has been established and secondly since no such cell has been established Investigation etc. Has to be in accordance with the provisions of sections 154 to 173 of the Code of Criminal Procedure by the Provincial Police. Mr. Sarki conceded that no such cell has as yet been established in the F.I.A. Question would be in the absence of such a cell would not provision contained in the first proviso to section 25 of the PECO kick in and therefore F.I.A. Would cease to have jurisdiction to investigate and prosecute an offence under PECT. Concomitant question would be in such a situation what would be legal effect of inclusion of PECO in the Schedule to the Act of 1974 by Notification dated 12-2-2008.
38. In support of his contention Mr. Halepota relied upon Ch. Abid Saeed and others v. The State, 2002 PCr.LJ 1818. Facts of that case were that the Directorate of Intelligence and Investigation (Customs and Excise), Karachi received information that Abid Saeed and another person in collaboration with a private bonded carrier were smuggling electronic goods, cigarettes etc. By mis-declaration under the grab of waste paper and were disposing of such goods from their private warehouse. A team was constituted by the Directorate to keep surveillance. It followed two such containers destined for Faisalabad Dry Port, traced the containers to the warehouse and kept watch. Ultimately it intercepted that two applicants in presence of witnesses. The applicants were asked to declare contents of the containers and as to why the containers had not been transported to their destination i.e, Faisalabad. They could not reply satisfactorily. However Abid Saeed produced invoice, bill of lading etc. In support of his claim of lawful possession of consignment. Seals of containers were not found in tact and cursory examination revealed that containers contained cigarette paper, washing machine, aluminums foil etc. The accused persons and containers were escorted to the Directorate. Same or similar was story of another container.
Ultimately inventory of goods was prepared, accused persons were taken into custody and interim charge sheet was submitted before the Special Judge (Customs and Taxation). Bail application was rejected by the Special Judge. Thereafter bail application was filed in the High Court.
39. In the High Court it was, inter alia, contended that in absence of notification notifying police station for the customs in terms of clause (r) of subsection (1) of section 4, Cr.P.C. By the Provincial Government, therefore report against the applicants and all the proceedings initiated and taken on such report would be corum non judice as Customs Officer in absence of any notification notifying the police station for the purpose of custom cannot initiate or register an F.I.R. The Special Judge had made applicable provisions of Criminal Procedure Code to proceedings under the Customs Act, 1969 by taking "refuge" (in the words of learned Single Bench) of section 5(2) of the Code which has caption of "trial of offences against other laws". The High Court first observed that "it is now well settled that where a statute has created a special offence and lays down a special procedure for investigation and trial of such offence, it is that procedure, that must be followed and not ordinary procedure" and then disagreed with reason given by the Special Judge and in doing that it referred to section 161 of the Customs Act. Thereafter High Court compared and contrasted provisions of sections 54, 59, 60, 497, 167, 160, 161, 169, 154, 172, 173, 164, 103 and 190 of Cr.P.C. With provisions of sections 161, 162, 163 and 185-A of the Customs Act , 1969 and observed that in view the above provisions of Customs Act, provisions of Cr.P.C., in terms of section 5(2) thereof would not be applicable. It therefore held that non-notification would not make report or the inquiry conducted on the basis of such report, without jurisdiction in respect of offences emanating from Customs Act.
State v. Hamtho 1971 SCMR 686 is to the effect of laying down principle that where special statute creates a special offence and lays down a special procedure for investigation and trial of such offence, it is that procedure, that must be followed and no ordinary procedure.
40. There is no cavil with these propositions of law. In the present case it is admitted fact that no special investigation and prosecution cell as mandated by E section 25 of PECO has been constituted. Therefore obvious meaning and implication would be that in terms of section 25 no investigation and prosecution can be carried out or pursued by the F.I.A. But the matter does not end there. That is so because effect of Notification dated February 12, 2008 must also be taken into consideration. The Notification is a statutory instrument. It added a new entry in the Schedule to the Act of 1974 and made offences under PECO as amenable to the jurisdiction of F.I.A. Thus the Notification has not only force of statute behind it but it is a law itself and has co-equal effect and therefore F.I.A. Has the same powers in respect of offences under PECO as it has in respect any other offence within the swa y of Schedule of the Act of 1974.
41. Thus the conclusion is escapable in the absence of constitution of cell under the PECO, the Notification cannot be said to cease to be of no legal effect and is therefore redundant. An interpretation has to be found which gives, at the same time, to provision of section 25 of PECO as well as the Notification dated 12-2-2008. Therefore if no cell is constituted F.I.A. Has jurisdiction to investigate and prosecute in view of the entry added to the Schedule by the Notification. On the other hand if (and when) the cell is constituted provisions of section 25 of PECO shall come into play. This interpretation is not in violation of what is provided in the first proviso to section 25-A.
That is for two reasons. Firstly offences under PECO are fully attracted to provisions of section 5(2) of the Criminal Procedure Code and the new entry in the Schedule provides procedure for such an eventuality. Therefore contention of learned counsel for the applicants is not tenable.
42. It was next argued by the learned counsel for the applicants that section 31 of the PECO provides for constitution of Information and Communication Technologies Tribunal (hereinafter referred to as the Tribunal). Thereafter learned counsel referred to section 23 of the PECO to contend that the offence is only cognizable and triable by the by the Tribunal. Therefore, Sessions Judge, Karachi South, it was contended by the learned counsel, had, and has, no jurisdiction whatsoever to try the offence under PECO. In reply it was stated by Mr. Sarki that section 31 of PECO is answered by section 45 of PECO. The present proceedings being before Sessions Judge and since the Tribunal has not yet been constituted, proceedings before Sessions Judge are competently filed and maintained. While exercising his right of reply Mr. Halepota referred to supplementary charge-sheet No,20/2009 dated 24-2-2009 which is stated to be submitted before "Court of District and Sessions Judge (PECO Tribunal) South Karachi." Learned counsel submitted that this is incompetently filed because the Sessions Judge is not the PECO Tribunal because firstly no such Tribunal has yet been constituted and secondly each bench of the Tribunal is required to consist of at least two members. Learned counsel submitted that even under section 45 of PECO the Sessions Judge is not competent. Learned counsel submitted with reference to section 29, Cr.P.C. And its Second Schedule that since under PECO maximum punishment is 7 years and Sessions Judge is not competent to try such offence, it has to be a Magistrate First Class. Learned counsel further submitted that under section 193(1), Cr.P.C. Sessions Judge in any case cannot directly take cognizance. Sessions Judge is not Tribunal under section 31 of PECO, therefore, Sessions Judge could not even have taken cognizance. Therefore, as far as PECO is concerned, Sessions Judge is corum non judice. He relied upon Sabir Ali v. Khalil Ahmed Bajwa and others 2005 MLD 1127. This was too significant a point and therefore the Standing Counsel and Counsel for State Bank of Pakistan were granted time and they submitted that under section 23(1) of FERA it is provided that it will be tried by a Tribunal and section 23-A provided that every Sessions Judge shall, for the areas within territorial limits of his jurisdiction be a Tribunal in respect of offences under the FERA. Learned counsel referred to sections 235 and 239(d) of the Cr.P.C. He submitted that no prejudice by trial by Sessions Judge has been caused to the applicant and no such prejudice has been pleaded. He further submitted that for the 'purpose of bail this ground is not available.
43. Before entering into discussion on the point raised by Mr. A.Q. Halepota it would be appropriate to refer to relevant provisions of PECO: 'SECTION 23 OF PECO.--Prosecution and trial of offences.--(1) the Tribunal shall take cognizance of and try any offence under this Ordinance.
(2) In all matters with respect to which no procedure has been provided in this Ordinance or the rules made thereunder, the provisions of the Code shall, mutatis mutandis, apply for the trial.
(3) All proceedings before the Tribunal shall be deemed to be judicial proceedings within the meanings of sections 193 and 228 of the ' Pakistan Penal Code, 1860 (XLV of 1860) and the Tribunal shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code.
'SECTION 31 OF PECO.--Information and Communication Technologies Tribunal. ---(1) As soon as possible after the commencement of this Ordinance, the Federal Government shall, by notification in the official Gazette, constitute the Information and Communication Technologies Tribunal whose principal seat shall be at Islamabad.
(2) The Tribunal may hold its sittings at such place or places as the Federal Government may decide.
(3) The Tribunal shall consist of a chairman and as many members as the Federal Government may determine but not more than seven members.
(4) The Chairman may constitute Benches of the Tribunal and unless otherwise directed by him a Bench shall consist of not less than two members. A bench shall exercise such powers and discharge such functions as may be prescribed. There shall be established at least one Bench in each province.
(5) The Federal Government shall appoint the Chairman and members of the Tribunal.
'SECTION 45 OF PECO.--Transitory proceedings. ---(1) Until the establishment of the Tribunal all cases, proceedings and appeals, subject matter of which is within jurisdiction of the Tribunal, shall continue to be heard and decided by the competent forum existing under any law for the time being in force.
(2) On the constitution of the Tribunal all cases, proceedings and appeals shall stand transferred to and be heard and disposed of by the Tribunal.
(3) On transfer of cases, proceedings and appeals under subsection (2), the Tribunal shall proceed from the stage the proceedings had reached immediately prior to the transfer and shall not be bound to recall any witness or again record any evidence that may have been recalled."
44. Section 31 of the PECO provides for constitution of an Information and Communication Technologies Tribunal. The Tribunal is vested with all requisite powers for taking cognizance of offences under PECO and for trying those offences. Under subsection (3) Tribunal is to consist of a Chairman and as many members as the Federal Government may determine. Under subsection
(3) powers can be exercised by Benches of the Tribunal and Bench of the Tribunal must consist at least to two members. Under section 32, of PECO Chairman of Tribunal can only be a person who is, or has been, or is qualified for appointment as a Judge of High Court and can only be a person who has served for two years as a District and Sessions Judge or being an advocate has been for a period of not less than 10 years an advocate of a High Court or is a person with special knowledge of legislation or and experience in the field of telecommunication and information technology.
Under section 23 of PECO power to take cognizance and try the offence is that of the Tribunal. No Tribunal has been so far constituted. Mr. Halepota referred to charge sheet dated 6-12-2008 which has the following heading: In the honorable Court of District & Sessions Judge abd PETC Tribunal Karachi (South). His submission was two fold. Firstly, the offence has been taken cognizance by the Sessions Judge as PECO Tribunal. No Tribunal has yet been constituted. Therefore Sessions Judge could not have taken cognizance as PECO Tribunal. Even otherwise a single Sessions Judge cannot be the Tribunal and the Tribunal can only act through one of its Benches and a Bench has to consist of at least two members. I think Mr. Halepota is right at least on one these counts: Sessions Judge is not (and he cannot be while acting as a Sessions Judge) be the Tribunal under PECO.
Statement in title of various documents submitted before the learned Sessions Judge to the effect as quoted above indicates a certain degree of ambivalence and, if I may say so with due respects, a certain degree of confusion on part of the prosecuting agency. It may be interesting to note that a Tribunal is also provided for under FERA but then under section 23-A of FERA every Sessions Judge is Tribunal for the area of his territorial jurisdiction in respect of offences under FERA. That may, and probably is, the reason for confusion. However since no provision analogous to section 23-A of FERA exists in PECO, Sessions Judge cannot act as Tribunal under PECO. However mere statement in the title in respect of PECO can neither convert the Sessions Judge into a Tribunal nor can be given effect of incompetently filed merely for the reasons of wrong additional title.
45. But can the Sessions Judge, given the fact that no Tribunal under PECO has been constituted so far, take cognizance and try offence under subsection (1) until the Tribunal is established (which the position as of now) all cases, proceedings and appeals, subject matter of which is within jurisdiction of the Tribunal shall be heard and decided by the competent forum under any law for the time being in force. Subsections (2) and (3) provide for transfer of proceedings to the Tribunal when it is constituted and matters ancillary thereto. It was contended by Mr. Sarki that therefore, in the absence of Tribunal, Sessions Judge is competent to take cognizance of offences and try them under PECO. To the extent of section 23 of PECO Mr. Sarki is absolutely right that since section 45 makes transitory provisions and provides that till such time as the Tribunal is constituted "competent existing" forum under law proceedings can be made before the ordinary Courts of.
Thus is appeared that Mr. Sarki has met, successfully so, objection of Mr. Halepota.
46. Or has he? Is the Sessions Judge "competent existing forum"? Second Schedule to the Criminal Procedure Code Provides as under: OFFENCES AGAINST OTHER LAWS OffenceBy which Court Triable If punishable with death, imprisonment for life, imprisonment exceeding 7 years, amputation of hand or foot or both hand or foot or with whipping exceeding 80 stripes with or without any other of the said punishments.Court of Session If punishable with imprisonment for 3 years and upwards but not exceeding 7 years or with Whipping not exceeding 80 stripes with or without any other of the said punishments.Magistrate of the First Class If punishable with imprisonment for 1 year and upwards but less than 3 years or with whipping not exceeding 40 stripes with or without any other of the said punishments.Magistrate of the Second class If punishable with imprisonment for less than 1 year or with whipping not exceeding 10 stripes with or without any other of the said punishments.Magistrate of the Third class
47. Punishment are prescribed under various sections of PECO. It is three months under section 14; two years under section 20; three years under sections 3, 4, 5, 6, 9, 10 and 15; Five years under sections 11, 12 and 16; Seven years under sections 7, 8, 13 and ten years under sections 17,
18. Charge Sheet levels charges under sections 7, 8 and 20 of PECO. Therefore maximum imprisonment is 7 years and therefore under Second Schedule to Cr.P.C. It is Magistrate of First Class and not Sessions Judge who is competent to try the offence. Therefore on this score the Sessions Judge is corum non judice.
48. Reference by Mr. Ibrar Hasan to sections 239(d) and 235 of Criminal Procedure Code does not seem to be at all relevant. Section 239(d) Cr.P.C. Provides that persons accused of different offences committed in the course of the same transactions may be charged and tried together.
Section 235 provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. All the illustrations given in section 235 relate to, it may be interesting to note, offences under P.P.C. Provisions of sections 239(d) and 235 do not provide, either expressly or by necessary intendment, that such offence may be tried by a Court even if it does not have jurisdiction to try such offence. Moreover under FERA Sessions Judge does not act as a Sessions Judge but acts as a Tribunal under section 23-A of FERA.
49. At this reference may be made to Sabir Ali v. Khalil Ahmed Bajwa and others 2005 MLD 1127.
Facts of this case were that an F.I.R. Under sections 10(2), 13 and 14 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was registered. It was quashed by the High Court and the High Court directed the Investigating Officer to proceed against the informant for Qazaf.
Consequently Investigating Officer submitted the matter in the Court of learned Executive Magistrate who took cognizance of the case and commenced the proceedings. Accused was summoned. Writ petition was filed to challenge commencement of trial. It was contended that under section 17 of the Ordinance of 1979 it is provided that the offence shall be triable "before a Court of Sessions and not be or before a Magistrate authorized under section 30 of the Code of Criminal procedure." High Court accepted the contention and directed the concerned Judicial Magistrate to forward the case under section 190(2) of Criminal Procedure Code to the Court of Session.
50. In the present case it is held that the Sessions Judge had (and has) no jurisdiction to take cognizance of offences F under PECO. Therefore the learned Sessions Judge is directed to send the case to a Court of Magistrate first class competent to try the offence under Second Schedule to the Criminal Procedure Code which Magistrate will decide whether to take cognizance or not and thereafter proceed in accordance with the law. Since bail applications were filed in the Court of Sessions Judge who was not competent to try the offence, those bail applications shall be deemed to be pending and the Magistrate shall expeditiously hear and decide those applications as expeditiously as possible. In view of this order I do not think other contentions of the learned counsel regarding merits of the application as well as other law points need to be decided in these proceedings.
Result of the above discussion is:--
(i) Bail Applications Nos . 291 and 1124 of 2009 are allowed. The applicants are admitted to bai I for an amount of Rs,1,000,000 (one million) each with P.R. Bond and G two sureties each in the like amount to the satisfaction of the Trial Court. Applicants shall also be required to deposit their passports and original CNICs with the trial Courts.
(ii) Bail Applications Nos. 292 and 1123 of 2009 are disposed with direction to the learned Sessions Judge Karachi South to send the cases to a Court of Magistrate First Class competent to try the offence in terms of Second Schedule to the Criminal Procedure Code which Magistrate shall first decide whether to take cognizance or not and thereafter proceed in accordance with the law.
Since bail applications were filed in the Court of Sessions Judge who was not competent to try the offence, those bail applications shall be deemed to be pending and the Magistrate shall H hear and decide those applications as expeditiously as possible.