1. FAKHRUDDIN G. IBRAHIM, J.-This appeal raises a limited law point of general importance, namely, whether under section 23-A(6) of the Foreign Exchange Regulation Act (Act VII of 1947) an appeal against an order of discharge of an accused is competent.
2. The respondent Saifuddin was tried by a Tribunal constituted under section 23-A of the Act for offences under sections 4(3) and 22 of the Act. The Tribunal by its order dated 5-6-1971, after recording the entire prosecution evidence, came to the conclusion that there was no contravention on the part of the accused of the provision of section 4(3) of the Act, and since the evidence on record even if not rebutted was not sufficient to bring about the conviction of the accused he was discharged under section 253, Cr. P. C.
3. The appeal of the State Bank of Pakistan (appellant herein) under sec--tion 23-A(6) was dismissed by the High Court on the short ground that no appeal shall lie against the order of discharge of a person accused of an offence under the Act. In reaching this conclusion, the learned Single Judge relied on an earlier judgment of the Division Bench of the High Court of Sind & Baluchistan in State Bank of Pakistan v. Wasiuddin Ahmad (.1975PCr.L1707 Leave was granted by this Court vide order dated 4-9-1974 to consider the question whether the High Court was right in holding that subsection (6a, t of section 23-A of the Act did not permit an appeal to the High Court fro an order of discharge made by the Tribunal.
4. To begin with, it may be convenient, to set out the provisions of sec--tion 23-A of the Foreign Exchange Regulation Act although for the purpose of present appeal subsections (6) and (7) only are important. Section 23-A reads as under: -- "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 trans--ferred, 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 trial 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) authorising detention of a person during police investigation ;
(e) ordering the release of the accused on bail
(4) All proceedings before a Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 293 and 228 of the Pakistan Penal Code, 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.
(7) Save as provided in the preceding subsection, all judgments and orders passed by a Tribunal shall be final."
5. It may be noticed that subsection (6) confers a right of appeal against a judgment of the Tribunal and subsection (7) provides that all judgments and orders passed by the Tribunal are final save as provided in the preceding sub--section, that is to say, subsection (6). It is, therefore, obvious that unless the order complained of is a judgment within the meaning of this section, an appeal will not lie.
6. The question for our determination, therefore, is as to the meaning to be given to the word `judgment' occurring in the aforesaid section 23-A. More particularly, whether it should be given wider dictionary meaning so as to include judicial adjudication by a competent Court of a controversy before it which at least, so far as itself is concerned, finally determines the matter or the meaning of the word `judgment' has to be confined to a judgment of con--viction or acquittal as contemplated by the Code of Criminal Procedure.
7. Mr. Nasim Faruqui, learned counsel for the appellant, contended that the word "judgment occurring in section 23-A of the tact, should not be given limited meaning as understood in the Code, but the wider meaning so s to include wider popular meaning so as to include an order of discharged made under section 253, Cr. P. C. Particularly when such an order is based on findings on the merits of the case.
8. Now, in so far as the Code of Criminal Procedure is concerned, it was not canvassed before us that the judgment would mean anything more than a judgment of conviction or acquittal and would, therefore, exclude an order of discharge under section 253 of the Code. What was argued was that the word "judgment" under section 23-A of the Foreign Exchange Regulation Act should not be given a limited meaning as understood by the Code The con--cession made is understandable, for in the D. B. Decision of the Sind High Court, referred to above, the learned Chief Justice Mr. Justice Tufail Ali A. Rehman has at length and admirably, dealt with the meaning of the word "judgment" in the Code and found himself in respectful agreement with the following passage appearing in the Federal Court of India's decision in the case of Hariram Singh v. The Emperor (AIR1939FC43)
9. "In view of the observation, made by their Lordships of the Privy Council, the word `judgment' cannot now be taken in its widest possible sense so as to include every order which terminates a proceeding pending in a High Court so far as that Court is concerned. In crimi--nal cases the position is still stronger. In England judgment is equiva--lent to a judgment of conviction or acquittal and is distinct from other orders in a criminal case. This will appear from an examination of paragraph 260.4 in Vol. 9, Halsbury's Laws of England (Hailsham Edition). In the Indian Code of Criminal Procedure, judgment is not defined, but various sections suggest what it means; Sections 404 and 415-A no doubt refer to appeal from judgment or appealable judgment respectively. But under sections 263 and 264 the judgment in a sum--mary trial has to contain the finding and sentence or other final order.
10. Under section 305, in a jury, trial the order of conviction or acquittal in accordance with the opinion of the jury is the judgment. Under section 309 in a case tried with assessors, the final order which is followed by the sentence, is the judgment. Section 367 suggests what the contents of a judgment should be, and what it should comprise of when it be, a judgment of conviction and what if it be a judgment of acquittal. Section 370 also requires a record of the offence complained of or proved, the plea of the accused and the final order. As final orders like those under sections 144 and 145 could not be judgments, a special provision has been made in section 367(6) that certain orders should be deemed to be a judgment. The Code provides appeals from certain appealable orders and section 423 provides appeals from convic--tion and sentence. Thus, judgment in the Code means a judgment of conviction or acquittal."
11. The argument raised in the present appeal that the Code meaning of the expression "judgment should not be given to the word "judgment" in sec--tion 23-A was considered and negative in the aforesaid Sind Judgment. The learned Chief Justice noticed that subsection (3) of section 23 of the Act not only confers upon the Tribunal powers of a Magistrate of the First Class in relation to criminal trials, but directs the Tribunal to follow "as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898 for trials before such Magistrate" and in the matter of punishment subsection (5) enhances the powers of the Tribunal to impose a fine to a level as extensive as those of Courts of Session by reason of the fact that the Code will apply unless expressly excluded.
12. The learned Chief Justice then went on to observe:- In effect therefore it comes to this that the Tribunal is being directed to follow the procedure which a Magistrate would have followed under the Code and since the power of discharging an accused person and of giving final judgment in a trial is mentioned in that Code I do not think that any further argument is necessary for establishing the pro-- position that the word "judgment" must be understood in the same sense as it is used in the Code. This conclusion I think arises from necessary implication but even explicit in the section is some distinction between a judgment and an order for while an appeal is provided against the former under subsection (6), subsection (7) gives finality not only to judgments but orders also. Unless, therefore, the Legislature contemplated that .There could be orders of the Tribunal which did not amount to judgments the language of these two subsections would have been different. Nothing could have been easier than to have provided for appeals not only against judgments but also against orders or possibly generally against decisions under subsection (6) and then to have provided in subsection (7) that save as provided for in the preceding subsection all decisions passed by a Tribunal should be final. The Act itself, while it does make a clear distinction between judgments and orders, defines neither and that only fortifies me in the conclusion that the word `judgment' must be. Understood is the same sense as it is used in the Criminal Procedure Code."
13. Mr. Nasim Ahmad Faruqui, the learned counsel for the appellant, did not cite any decision to the contrary. I am in respectful agreement with the learned Chief Justice that the expression `judgment' occurring in section 23-A B of the Foreign Exchange Regulation- Act has to be given a meaning as under- stood in the Cr. P. C., which an order of conviction or acquittal and since the appellant in the present case was discharged under section 253, Cr. P. C., this order was not a judgment and therefore, not appealable to the High Court.
14. As will be presently shown the result will not be different even if the argument of Mr. Nasim Farooqi that the word `judgment' in section 23-A be given its ordinary dictionary or popular meaning, is taken into consideration. Black's Law Dictionary, Fourth Edition, defines "judgment" as :-- "Formal determination of any action or proceeding; final determination of the action of the Court; a written decision that finally determines the rights of the parties in a judgment; final and conclusive adjudication between the parties."
15. In American's Jurisprudence, Vol. 30, page 821, `judgment' is defined in its broadest sense as the final consideration and determination of a Court on matters submitted to it in an action or proceeding.
16. In Corpus Juris Secundum, Vol. 49, page 25, it is stated that the dis--tinguishing character of a judgment is that it is final.
17. The Indian Supreme Court in the case of State of Bihar v. Ram Naresh Panday (PLD1957SC (Ind.)
18. 361while considering the meaning to be given to the word `judgment' in section 494, Cr. P. C.
19. Recognized that it had a limited meaning-being a judgment of acquittal or conviction, but a committal order, though not a judgment in the context of Chapter XXVI of the Criminal Procedure Code would still qualify to be called `judgment' for it terminates the proceedings as far as Inquiry Court is concerned.
20. In Kupuswami Rao v. The King (AIR1949 FC1) the question before the Court was the meaning of the word `judgment' or `final order' appearing in section 205(1) of the Government of India Act, 1935.
21. Amongst other things the definition. Which was referred to in this judgment was the meaning given by Lopes, L. J. In Salaman v. Warner ((1891) 1 Q B 734which is as follows :- "I think that a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties."
22. The Federal Court also approved the real test for determining the question as was held by Lord Alverstone, C. J. In Bozson v. The Altricham Urban District Council No. 1 ((1903) 1 K B 547 "Does the judgment or order, as made, finally dispose of the rights of the parties.
23. The next question to be considered is whether an order of discharge made under section 253, Cr. P.
24. C. Is final and conclusive adjudication between the parties. A Full Bench of the Calcutta High Court in Mir Ahmad Hossain v. Mohomed Askari (1 L R 29 Cal. 726held that a Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence without an order for further inquiry being passed under section 437, Cr. P. C., having the effect of setting aside such order of discharge. Earlier in Dwarka Nath Mondul v. Beni Madhab Benerjee (I L R 28 Cal. 652it was held that since 1877 invariably held opinion was that there was no restriction to a 1lagistrate trying a case in which there had not been a final order of acquittal or conviction.
25. The view expressed in the aforesaid two Calcutta cases was considered by this Court in the case of Abul Ilossoin v. Suwalal Agarwala (PLD1962SC242The facts of this case were as follows:- "Abul Hossain Sana, the appellant in this appeal by special leave, had been sent up for trial by the police under section 379 and 465 of the Pakistan Penal Code, the allegation againsthim being that he had forcibly taken away some property, belonging to one Mungilal Radha Krishan Agarwalla.
26. The case was being toted by Mr. Meharullah,Magistrate 1st Class Satklhira. On a number of dates fixed for hearing no evidence was produced at all by the prosecution The complainantwho had lodged the first informatics report was himself under detention in Khulna jail and did not appear asa witness. As the prosecution failed to adduce any evidence in spite of the fact that several opportunities were allowed to it to do so the Magistrate discharged the accused on the 14th November 1959 under section 253 without record--ing any evidence holding in the words of section 253 that the charge was groundless. The complainant filed an application in revision before the Sessions Judge. Khulna with a prayer that the order ofdischarge be set aside and by his order dated the 18th of December 1559 the Sessions Judge called for the records. During the pendency of these proceedings before the Sessions Judge, that is, on tile 17th of December, 1959 the Court Sub- Inspector of Satkhira flied an application before Mr. Meherullah who had passed the order of discharge-- for a revival of the case in which the order of discharge had beer passed. Mr. Meherullah by an order of the same data granted the application without notice to the appellant and fixed a date for a ale novo hearing. The application in revision pending before the Sessions Judge was dropped by the complainant in view of the order passed by Mr. Meherullah. Against the order of revival the appellant filed an application in revision before the Sessions Judge who refused to interfere and the appellant then moved the High Court. The learned Single Judge of the High Court who heard the application is it revision was the opinion that although no grounds for revival were stated in the order of Mr. Meherullah the petition on which the order was passed did show some grounds and therefore the order was justified in law. Apparently the learned Single Judge was of the opinion that there was sufficient cause for non-production of evidence in the proceedings which resulted in a discharge and the proceedings could be revived."
27. The Supreme Court noticed that the above referred to two Full Bench Calcutta decisions were cases of revival of the same proceedings and the judgments do not make any distinction between a `revival' and 'a fresh prosecution with respect of the same offence'. The revival of a complaint was 11lrld not to be legal for the twin reasons that it will violate the general principle that there has to be an end to litigation and will also make redundant the power granted to the revisional Court to set aside a discharge and order a fresh inquiry. The question whether there could be a prosecution in case of discharge after hear--ing of evidence, was not directly in issue before the Supreme Court, but some observations relating to the same are significant. These appear at pages 245 and 247 of the judgment and are as follows :- It would be impossible to contend that once an accused person has been discharged after the whole of the evidence produced by the prosecution has been recorded he can be proceeded against on a fresh complaint or report on the basis of the very same evidence. If this were permissible there may be proceedings ad infinitum against an accused person. Also the power granted to a revisional Court to set aside discharge and order fresh inquiry would on this view become redundant. An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal. In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted."
28. "The difference between the view we are taking Y and the view which was taken in the Full Bench cases is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge after hearing of evidence, there should not be a second prose--cution and that is substantially the basis of this judgment. We are in agreement with the learned Judges on the question as to whether a second prosecution will be with or without jurisdiction for we do not hold it will be entirely without jurisdiction. The main difference in the view we take and the view taken by the Full Bench cases with respect to the competence of fresh proceedings is that while we are laying down a general rule prohibiting Magistrates from entertaining first proceedings in respect of an offence after there has been an order of discharge, the learned Judges of the Calcutta High Court simply gave expression to their expectation that the Magistrates will not entertain such proceed--ings and stated further that if they did so the revisional Court would interfere."
29. Thus, it will be seen that a second prosecution upon a fresh complaint preceded by an order of discharge on merits is not without jurisdiction, but I the same evidence, or substantially the same evidence as was considered and rejected, is sought to be reconsidered, then it may amount so improper exercise of jurisdiction. In the given case if it is demonstrated that the prosecution was reasonably prevented from leading all its evidence, or having led all I evidence, new evidence was found, there would be no legal bar to a fresh proceeding for the same offence, notwithstanding the earlier order of discharge on merits under section 253, Cr. P. C. Thus, in law, as distinct from practice there is no bar to fresh proceedings in case of discharge on merits under sec--tion 253, Cr. P. C., and this lack of finality will take the discharge order out of the ordinary meaning of the word "judgment".
30. The result is that this appeal fails and is dismissed, but in the circum--stances of the case there will be no order as to costs.