1. ' SARDAR MUHAMMAD NAWAZ KHAN, C.J.---Through the impugned order dated 23-4-2005, the convict appellant has been sentenced for three years' R.I with Rs,200,000 two lac, as fine under section 11 of Ehtesab Act and in case of default in payment of fine, he has to undergo a simple imprisonment for one year. He has also been convicted for commission of offence under section 409, A.P.C. And has been sentenced for two years' R.I. With Rs,200,000 two lac as fine and in case of non-payment of fine, a simple imprisonment for six months. The trial Court has further sentenced the appellant for two years' R.I. With one lac fine for commission of offence under section 467, A.P.C.
2. And in case of non-payment of fine three months' simple imprisonment has been awarded to the appellant. Similarly he has been sentenced for two years' R.I. With one lac fine for commission of offences under sections 468 and 471, A.P.C. And in case of default in payment of fine, three months' simple imprisonment. The conviction order would show that the appellant has to undergo one year's R.I. With one lac fine for commission of offence under section 5(2), P.C.A. And in case of default in payment of fine, three months' simple imprisonment has been awarded for the said offence.
3. ' The facts giving rise to the present appeal are that one Yehya Abdullah, Regional Joint Director Oversees Pakistani Foundation (hereinafter shall be referred as OPF) School Mirpur lodged a report with Police Station Thothal District Mirpur against the appellant Anjum Shahbaz and two other persons Ghias Lodhi and Sabeeha Ahmed wherein he alleged that the aforesaid persons who were obliged to remit tuition, fee received by them from the students of the school, through bank draft to head office OPF Islamabad. They, according to the complainant, remitted the amount lesser than they received from the students in connection with the tuition fee. On an inquiry through a special committee, it was disclosed that a sum of Rs,16,4842, ranging from April, 1999 to October, 2000, was misappropriated by them and in this way they deliberately caused damage to the foundation. On this report, the police concerned registered a case under sections 419, 420, 467, 468, 409, 471 and 109, PC and started the investigation. They apprehended the appellant Anjum Shahbaz, Accounts Assistant of the school. Mrs. Sabeeha Ahmed, Principal of the school, succeeded to secure bail from the Court of competent jurisdiction whereas Ghias Lodhi absconded and went abroad. The police took the relevant record into custody and while deleting sections 419 and 420, PC added section 5(2), P.C.A. Anti-Corruption police investigated the matter. Meanwhile the appellant was allowed bail. The police, during investigation, found misappropriation in the bills of electricity and water supply payable by the school. After completion of investigation, it was found that the accused, misappropriated Rs,24,76,516 out of tuition fee whereas Rs,59,701 were misappropriated by the accused in connection with the electricity and Rs,12,192 from water supply bills, therefore, total amount misappropriated by the accused was Rs,25,48,409. A reference was sent to Ehtesab Court No,2 at Mirpur and the accused faced trial before the said Court. During trial, Principal Sabeeha Ahmed was discharged/acquitted by allowing an application under section 265-K, Cr.P.C. At the end of trial, co-accused. Ghias Haider Lodhi was also acquitted, however, the appellant was sentenced as stated earlier, hence this appeal.
4. ' The learned counsel for the appellant raised a preliminary objection with regard to jurisdiction of Ehtesab Bureau of Azad Jammu and Kashmir and the Court established under Ehtesab Act, 2001.
5. According to him, the OPF has been set up by the Federal Government and is registered as a company limited by guarantee under the Companies Act.VII of 1913. It has been registered at Islamabad on 8th day of July, 1979. It is governed by a board of governors comprising of the persons mentioned in introductory clause of the rules made under the Ordinance through which the said foundation came into existence. It has its own rules and regulations and has been managing its affairs through these rules. Its projects and employees have no nexus whatsoever with the Azad Kashmir Government or the AJK Council nor its employees are serving in connection with the affairs of AJ&K. This foundation is an outcome of a law enacted by the Federal Legislature and the Federal Government, therefore, the Ehtesab Bureau in AJ&K and for that matter the Ehtesab Court has no jurisdictional competence to investigate or try any crime allegedly committed by the employees of the foundation. The learned counsel, during his arguments, referred definition of service, holder of public office and person provided under definition clause of Ehtesab Act and contended that Ehtesab Bureau in AJ&K could only investigate the crime under this Act allegedly committed by those who are "in service of Azad Government of the State of Jammu and Kashmir or the Council or those who are holding public offices or position in the service of AJ&K or any post or any service in connection with the affairs of the State or Council or the employees of the corporation, banks, financial organizations established controlled and administered by or under the Council and the Azad Govt. Of the State of Jammu and Kashmir." He further submitted that as the employees of the OPF were neither employees of Azad Government nor in the service of AJ&K Council or in the service of a corporation, organization or any other institution established under a law enacted by AJ&K Legislative Assembly or the Council, therefore, the jurisdiction of Ehtesab Bureau or Ehtesab Court did not extend to the appellant's case, hence conviction order recorded against him was without jurisdiction. It was also the case of the learned counsel for the appellant that the observation of the trial Court regarding estoppel was also erroneous because there was no estoppel against law and similarly no party by admission or previous conduct could confer jurisdiction on a Court having no such jurisdiction. He during his arguments relied on the following case-law:--
(1) Muhammad Suleman's case (PLD 1982 SC(AJ&K) 64)
(2) Messrs Jabeer Hotel's case (2001 PLC (C.S.) 11)
(3) Nafees Baker's case (PLD 1995 SC (AJ&K) 47) and
(4) Sheikh Manzer Masood's case (;1981 PCr.LJ 661) and contended that the trial Court while recording conviction order against the appellant fell in error because the same was coram non judice in view of above stated law. Conversely the learned Deputy Chief Prosecutor while supporting the impugned order contended that the Ehtesab Bureau of AJ&K and the Court established under Ehtesab Act were fully competent to investigate and adjudicate upon the case under reference, as the employees of the school established at Mirpur by OPF were within the jurisdiction of Ehtesab Bureau and its employees were serving in connection with the AJ&K Government, therefore, the question of jurisdiction did not arise here in this case. He further submitted that school has been registered with the education department of AJ&K, therefore, it could not be said that the same was not 'within the jurisdiction of Ehtesab Bureau and its employees were not connected with the affairs of the State of AJ&K. He during his arguments referred to definition clause available under Ehtesab Act and contended that Ehtesab Act applies to all persons in Azad Kashmir, therefore, the impugned order has rightly been recorded by the Ehtesab Court vested with the jurisdiction to do so.
6. ' After hearing the learned counsel for the parties, the law cited at bar with regard to jurisdiction of Ehtesab Bureau and the Ehtesab Court has been examined. Though both the learned counsel have debated the merits of the case also; but we feel it advisable to resolve the point of jurisdiction first before reaching a conclusion. We feel to have a brief survey of the case-law cited at bar.
7. ' In Muhammad Suleman's case PLD 1982 SC(AJ&K) 64 the apex Court of Azad Kashmir while discussing the point of jurisdiction and estoppel has observed as under:-- "It is settled that the principle of estoppel cannot be allowed to defeat the provisions of a statute or enactment which affects the jurisdiction of a Court. A party cannot, by its admission or previous conduct, confer jurisdiction on a Court where none exists. The doctrine of approbate and reprobate, or consent or waiver, which would apply to the conduct of the parties, is not applicable to the case of a statute or an order passed without jurisdiction; and when there is a complete lack of jurisdiction, no consent or acquiescence can cure the illegality. An order which is not an order of a Court of competent jurisdiction can never be pleaded as an estoppel."
8. ' In Messrs Jabeer Hotel's case (2000 SCR 507), the Supreme Court of Azad Kashmir, while determining the jurisdictional competence of AJK Council has held as under:-- "The Interim Constitution Act does not postulate that executive authority of Azad Jammu and Kashmir Council will be exercised by the functionaries or officers of the Government of Pakistan although the Prime Minister of Pakistan is the Chairman of the Council.
9. It is equally clear that while performing functions as Chairman of the Council the Prime Minister of Pakistan cannot delegate any functions of the Council to an officer or authority in the Government of Pakistan although they are subordinate to him as Prime Minister."
10. ' In Nafees Baker's case (PLD 1995 SC (AJK)47) the Apex Court of the State has declared that electricity and tax thereof is not within the legislative or executive jurisdiction of Azad Kashmir Government. The relevant observation is as under:-- "So far as notification issued by the Azad Jammu and Kashmir Government is concerned it is in violation of the Constitution Act for two reasons. Firstly electricity is not within the legislative or executive jurisdiction of the Azad Jammu and Kashmir Government and for that reason the question of levying C any duty relating to electricity does not arise. The second reason is that under section 31(4) of the Azad Jammu and Kashmir Interim Constitution Act a tax can only be levied through a law enacted by the Azad Jammu and Kashmir Council or the Azad Jammu and Kashmir Assembly."
11. ' The learned counsel by citing the above mentioned case-law attempted to strengthen his argument that the Ehtesab Act is applicable to those persons who are in service of Azad Kashmir Government or the Council or holder of a public office in connection with the service of AJ&K Government or the Council or dealing with the affairs of any institution, corporation, organization etc. Established by a law enacted by AJ&K Council. We agree with the learned counsel for the appellant that the (employees of OPF are neither in the service of Azad Kashmir Government or AJK Council nor they are dealing with the affairs of AJK Government or Council while serving in a school established by OPF which is created under a federal Law. The argument by the learned counsel for the Ehtesab Bureau with regard to application of Ehtesab Act is misconceived. The words" all persons in Azad Kashmir" include and refer to those persons who are in service of AJ&K or the Council or dealing with the affairs of Azad Kashmir Government or the Council while serving in a corporation organization, bank or financial institution established under a law legislated by the AJ&K Legislative Assembly or AJK, Council. OPF is an out come of Federal Legislature and it has established different institutions working in Pakistan and Azad Kashmir. The employees of such institutions are neither in service of Azad Kashmir Government nor the Council. Though, the school has been registered with the education department of Azad Kashmir, but this registration has no legal backing. It is correct that if a person who is not in the service of Azad Kashmir Government or the Council nor dealing with the affairs of AJ&K, if commits an offence, he can be investigated and tried under normal penal laws; but not under the Ehtesab Act which is meant for a specified class of persons mentioned in it. The Ehtesab Act is a law which deals with the persons in the service of AJ&K Government or the Council or holder of Public Office as provided under it or their associates.
12. All those persons who are not included in the aforesaid category of persons, if commit an offence, they are liable to face the consequences under normal penal laws, therefore, the appellant, if found guilty of misappropriation or forgery could be put into penalty under normal penal laws provided under Penal Code; but the prosecution by sending him to face trial before Ehtesab Court under Ehtesab Act, was not justified under law, hence the reference by the Ehtesab Bureau and the impugned order, being without jurisdiction, are hereby quashed. As we are of the considered view that the reference and order on it, impugned before this Court, is without jurisdiction, therefore, it hardly needs to dilate upon the merits of the case.