JUDGMENT JUDGMENT RIAZ AHMAD KHAN, J.---This Criminal Appeal is directed against the judgment dated 24-1-2011, passed by learned Addl: Sessions Judge, Islamabad in case F.I.R. No.5, dated 7-3-2005, under sections 31 TRA and 36/37 and others r/w sections 420,109 P.P.C., Police Station F.I.A.. Corporate Crime Circle, Rawalpindi, by virtue of which the appellant was convicted under section 31(3) of the Pakistan Telecommunication (Reorganization) Act, 1996 and was sentenced to three years' R.I. With fine of Rupees Teri Million, that is to be recovered from the accused/convict as Arrears of Land Revenue.
2. Brief facts of the case are that complainant Sajjad Latif Awan, Zonal Director (Enforcement)
Pakistan Telecom Authority, Rawalpindi, lodged a complaint dated 7-3-2005, with the Director FIA, Rawalpindi Zone; wherein it was alleged that PTA had received a complaint through PTCL that co- accused of the present appellant namely Umar Chaudhry was A terminating International Traffic by passing PTCL gateway by using Internet Protocol Address as source at Messrs Omni post Postal Staff College. Building, G-8/4, Islamabad. On receiving the complaint, a case was registered on 7- 3-2005, search warrants from the Court of Judicial Magistrate Islamabad were obtained and raid was conducted on the premises of the co-accused of the present appellant. All equipments available in the premises of the co-accused of the appellant were taken into custody by the FIA.
Accused/appellant along with co-accused namely Umar Chaudhry were arrested on the spot.
Third accused namely Brig (R) Syed Ali was arrested when his pre-arrest bail was not confirmed but afterwards released on bail. On completion of investigation, challan was submitted in the Court against the Present appellant and his co-accused namely Umar Chaudhry; whereas name of third accused Syed Ali was placed in Column No.2 of the challan, with the observations that lie was not found involved in the offence. Learned Additional Sessions Judge, Islamabad when ceased with the matter framed charge on 21-4-2006, under section 31 of The Pakistan Telecommunication Organization) Act, 1996, 36/37 of Electronic Transactions Ordinance, 2002 read with sections 420/ 109, P.P.C. The prosecution examined twelve witnesses and thereafter the accused were examined under section 340(2), Cr.P.C. After-hearing the parties, learned trial Court acquitted the accused/appellant under sections 36/37 of The Electronic Transactions Ordinance, 2002 as well as under sections 420/109 P.P.C.; however convicted him under section 31(3) of The Pakistan Telecommunication '(Reorganization) Act, 1996 and sentenced to three years' R.I. With fine of Rupees Ten Million. The fine was to be recovered as Arrears of Land Revenue. Feeling aggrieved, of the above said judgment, present appeal was filed.
3. Learned counsel for the appellant contended that the alleged offence had been committed in the year, 2005 and at the relevant time; punishment provided under section 31(3) of The Pakistan Telecommunication (Re-organization) Act, 1996 was two years. Said section was amended in the year 2006 and punishment was enhanced to three years. Learned trial Court had awarded three years punishment, which according to law could not be awarded. According to learned counsel for the appellant, learned trial Court had failed to take into consideration the correct legal position. It- was further submitted that under subsection (5) Of section 31 of The Pakistan Telecommunications (Re-organization) Act, 1996, it was provided that no Court shall take cognizance of any offence punishable under this Act except on a complaint in writing by any officer authorized by the Authority or the Board. Elaborating this point, learned counsel for the appellant submitted that Board has been defined under section 2(C) of The Pakistan Telecommunication (Re-organization)
Act, 1996, which means the Frequency Allocation Board established under section 42. Section 42 provides that the Federal Government shall, by a notification in the official Gazette, establish a Frequency Allocation Board. According to the learned counsel for the appellant only the Board as provided in the Pakistan Tele communication (Re-organization) Act, 1996 or any person authorized by the Board, could file a complaint and without the same, no Court could take cognizance of the alleged offence. Learned counsel for the appellant submitted that the legislature was conscious of the fact that the alleged offence was too technical and ordinary Investigation Agencies could not understand the offence; so, therefore, only the Board as provided in the Act was given authority to lodge the complaint. It was further contended that in the instant case original complaint was lodged by PTCL, which was not the authority to tile the complaint and on the basis of complaint, filed by the PTCL, no case could be registered. Learned counsel for the appellant further contended that allegation against the present appellant is that he abetted the co-accused but there is no evidence against the present appellant for abetting the co-accused namely Umar Chaudhry.
Learned counsel for the appellant in support of his contentions, relied upon judgments reported as PLD 1998 Karachi 116, 1993 PCr.LJ 1307, 1993 PCr.LJ 1448 and PLD 2001 Karachi 112.
4. On the other hand, learned Standing Counsel submitted that the prosecution had proved its case and the accused/ appellant was guilty of the alleged offence.
5. I have heard learned counsel for the parties and have also perused the record.
6. Section 31(5) of The Pakistan Telecommunication (Re-organization) Act, 1996, clearly provides that the Court would take cognizance only on the complaint filed by the Board or ally Officer authorized by the Board. It is admitted that in the present case, the complaint was not lodged by the Board or any person authorized by the Board. F.I.R. Registered under section 154 Cr.P.C. Or challan submitted under section 173, Cr.P.C. Cannot be equated with the complaint as provided under section 31(5) of The Pakistan Telecommunication (Re-organization) Act, 1996. Cognizance taken by the learned trial Court on the police. Report and the trial conducted was therefore, not in consonance with the mandatory provisions of the law. The same amounted to abuse of the process of the Court and is therefore, not maintainable. In the circumstances, this appeal is accepted, judgment of learned Addl. Sessions Judge, Islamabad dated 24-1-2011, is set aside and the appellant is acquitted of the charge levelled against 2283 him. He shall be released forthwith, if not required in any other case.