The petitioners, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seek suspension of their sentence awarded to them vide judgment dated 27.09.2019 passed by the learned Judge Anti-T errorism Court-II, Multan in case FIR No. 44 dated 02.09.2018 registered at Police Station CTD, District Multan for offences under Sections 4 & 5 of Explosive Act, 1908, 13(2)(c) of Arms Ordinance, 1965 and 7 of Anti- Terrorism Act, 1997, whereby they have been convicted and sentenced as under:- Under Section 5 of Explosive Substance Act, 1908 Rigorous imprisonment for 02 years each and forfeiture of whole property belonging to them.
Under Section 13 of Arms Ordinance, 1965 Muhammad Iqbal Rigorous imprisonment for 02-years and fine of Rs.5,000/- and in case of non-payment of the same, to further undergo two months S.I.
Benefit of Section 382-B Cr.P.C was extended to the accused-petitioners and both the sentences awarded to petitioner Muhammad Iqbal were directed to run concurrently .
2. Against their afore-quoted conviction and sentences, all three petitioners (Muhammad Iqbal, Muhammad Usman & Hasnain Moavia) preferred Criminal Appeal No.891 of 2019 before this Court during pendency whereof, the instant constitution petition has been filed by them for suspension of their sentences. The petitioners have only affixed court fee/stamp paper of Rs.500/- on this petition.
3. Although the petition has been diarized by the office but it is fixed as an objection case. As per objection performa, the following objection has been raised:- "The Court fee is insuf ficient to the extent of Rs.1000/-."
4. Learned counsel for the petitioners, while relying upon the cases reported as Abid Hussain Shah and 28 others Vs. Government of the Punjab through Secretary S&GAD and others (PLJ 2012 Lahore 334) and Zahoor Ahmad and 309 others Vs. Member (Consolidat ion) Board of Revenue, Punjab and 23-others (PLD 2007 Lahore 461), contends that where the impugned acts arise out of one action or one order , one set of court fee is payable by several petitioners; that since the petitioners having joint interest have challenged one and the same order/judgment, therefore, court fee of Rs.500/- on behalf of all the three petitioners is sufficient and the office objection is not sustainable.
5. Heard.
6. Before dilating upon the merits of the case, I deem it necessary to firstly take bird's eye view over the concept and history of levying the court fee/stamp paper with the petition filed by the prisoner(s) before the court of law.
The court-fee was ordered to be levied in the Sub-continent, for the first time, in the year 1780 by Viceroy Warren Hastings during East India Company's rule over India. After his impeachment by the British Parliament, his successor Lord Carnivales took over as the Viceroy of India. He abolished the condition of court-fee as, according to him, a tax on justice was a disgrace to a civilized power. However, after his retirement in the year 1795, the levy of court-fee was again imposed. In 1870, present Court Fees Act, 1870 (Act VII of 1870) was enacted and enforced by the British rulers throughout the British India. However, the British rulers exempted the Chartered High Courts/Supreme Court, established in the three Presidency Towns of India, namely, Calcutta, Madras and Bombay, where their British subjects could file suits without paying any court-fee.
After the establishment of Pakistan on 14th August, 1947 the laws then in force in British India were adopted in Pakistan. The Court Fees Act, 1870 is one of such laws, which has remained in force in Pakistan under Article 268 of the Constitution as the "existing Law". Browsing of the Court Fees Act, 1870 reveals that it is a Central statute relating to the levy of the court-fees. Chapter-I of the Act is preliminary, Chapter II deals with levy of court-fees in High Courts on original side, to be collected in the manner provided in the Act, Chapter III, deals with fees in other Courts, Chapter III-A, deals with fee leviable on probates, letters of administration and certificates of administration, Chapter-IV deals with process fees. Chapter-V deals with mode of levying fees and Chapter-VI deals with miscellaneous matters. There are three Schedules appended with the said Act. Schedule-I prescribes fees on ad-valorem basis whereas Schedule-II prescribes fixed rates and fees. Schedule-III prescribes forms of valuation. The main purpose of the Court Fee Act is to levy fee for the services to be rendered by the court. The Act not only prescribes fee but also provide how they are to be ascertained. In Mst. Walayat Khatoon's case (PLD 1979 SC 821), the apex court has held as under:- "Court Fees Act is a fiscal enactment entitled only to secure revenue, it is a form of taxation."
Needless to mention here that judicature is creation of the constitution. Article 175 of The Constitution of Islamic Republic of Pakistan, 1973 reads as under:
175. Establishment and Jurisdiction of Courts . (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory , and such other courts as may be established by law .
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.
This Article also makes clear that the courts shall exercise the jurisdiction authorized by the constitution and law .
Article 192 of the Constitution states about formation of High Courts of the provinces which reads as under:
192. Constitution of High Court . (1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or , until so determined, as may be fixed by the President.
(2) The Sindh and Baluchistan High Court shall cease to function as a common High Court for the Provinces of Baluchistan and Sindh.
(3) The President shall, by Order , establish a High Court for each of the Provinces of Balochistan and Sindh and may make such provision in the Order for the principal seats of the two High Courts, transfer of the Judges of the common High Court, transfer of cases pending in the common High Court immediately before the establishment of two High Courts and, generally , for matters consequential or ancillary to the common High Court ceasing to function and the establishment of the two High Courts as he may deem fit.
(4) The jurisdiction of a High Court may, by Act of Majlis-e- Shoora (Parliament), be extended to any area in Pakistan not forming part of a Province.
Article 202 of the Constitution empowers the High Courts to make rules for regulating the practice and procedure of the Court or of any court subordinate to it subject to the Constitution and law which, for convenience of reference, is reproduced as follows:-
202. Rules of Procedure . Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any court subordinate to it.
In pursuance of the above constitutional provision, Lahore High Court, Lahore framed certain Rules and time to time issued Orders for regulating its judicial proceedings and that of District courts of the province. In order to determine the livability of the court fee on petitions, Rules & Orders of the Lahore High Court, Lahore, Volume-V (Relating to Proceedings in the High Court) Chapter 1 (Judicial Business) Part-A Rule 1 1 states as follow: "No petition, memorandum of appeal or other document, which ought to bear a stamp under the Court Fees Act, 1870, shall be received in the Court until it is properly stamped."
Moreover , Rule 10(i), Chap.4-F , Part-III of Part. J, V olume-V of High Court Rules and Orders, reads as under: "A court-fee of Rs. 500/- shall be payable on each petition but no court-fee shall be required in case a writ is required in respect of the detention of any person by or under orders of any public authority ."
In Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawad Ahmed (2013 SCMR 1707 ), the august Supreme Court of Pakistan has defined public authority as: "A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private gain or profit"
7. It will be relevant to quote here Section 19(xvii) of The Court Fee Act, 1870 in verbatim which provides as under:- "19. Exemption of certain documents. Nothing contained in this Act shall render the following documents chargable with any fee:- i. ii. iii. xvii. Petition by prisoners, or other persons in duress or under restraint of any court or its officers"
7. It will be relevant to quote here Section 19(xvii) of The Court Fee Act, 1870 in verbatim which provides as under:- "19. Exemption of certain documents. Nothing contained in this Act shall render the following documents chargable with any fee:- While expounding the principle, in Abid Hussain Shah' s case (supra), following dictum has bene laid down:- "In view of the foregoing, since all the petitioners complain of a single action and are employees of the same department, the office objection is overruled for the time being. Let the main case be listed for hearing on the judicial side."
Similarly , in Zahoor Ahmad' s case (supra), following has been observed:- "10. From the survey of above case law, it can safely be concluded that each petitioner, in a joint petition has his/its own cause of action and relief claimed by such petitioner is to his extent and grievance of each petitioner is individual. The petition by each one of the petitioners in a joint petition, shall be deemed independent and each of such person, shall be liable to pay court-fee separately. The object, of allowing joint petitions, is to avoid conflicting judgments or to allow litigants to conveniently and properly file one petition without going into a hassle of filing and documenting the petition separately. This however; does not absolve the petitioners from payment of court-fee, separately. Single set of court-fee in such petition is not legal.
11. One set of court-fee is payable by several petitioners only when inter se the petitioners a jural relationship subsists i.e. association of persons regist ered as a firm or incorporated company etc. or in the case of public injury leading to public interest litigation, or in case where series of complained/impugned acts arise out of one action or order .
8. On the following grounds, Zahoor Ahmad' s case is distinguishable from the present case:-
(a) In present case, the office has raised objection regarding the non-af fixation of court fee on this constitutional petition while the petitioners are in detention whereas the referred case pertains to civil matter . (b) In the referred case, the constitutional petition did not fall within the exemptions mentioned in provision of section 19 of The Court Fee Act, 1870, therefore, the above provisions could not have been considered. (c) In referred case, interest of community and common grievance of the petitioners qua civil matter was involved whereas the present petition involves the personal liberty of the petitioners. It is well settled principle of law that in criminal cases, an individual is responsible of his own act.
I may refer a judgment from the other side of the international border . In AIR 1978 AP 297, the Indian High Court has observed as under:- "5. This provision makes it abundantly clear that it exempts the application to be filed by a prisoner of other person in duress or under restraint of any Court or its Officers from payment of court-fee. As the petitioners are in prison, the application filed by them in the Cour t need not be affixed with any court-fee stamp. Whether the petition is presented to Court through jail or it is presented through an advocate is not material for the reason that exemption is given from the payment of court-fee for filing a petition by the prisoner . Therefore, in out view, the accused who are in jail need not pay any court fees."( underlined for emphasis)
I may supplement the above proposition by referring Section 371(1) of The Code of Criminal Procedure,1898 which provides as under:- "In every case where the accused is convicted of an offence, a copy of the judgment shall be given to him at the time of pronouncing the judgment, or when the accused so desires, a translation of the judgment in his own language, if practicable, or in the language of the Court, shall be given to him without delay . Such copy or translation shall be given free of cost."
It is clear from the afore-quoted section of Cr.P.C that copy of judgment or translat ion shall be given free of cost to the convicted person. The provision leads to the conclusion that at the moment when judgment of conviction with imprisonment is pronounced, convict person is ordered to be taken under custody unless granted bail under Section 381-A of Cr.P.C and copy of the same is given to him free of cost because he is under detention. Likewise, if he approaches the upper forum regarding his conviction and detention while he is in prison or under custody , law exempts his petitions from levy of court fee. Intention and purpose of the legislature was that there should be no financial burden on the person under custody or detention who wants to approach the courts for redressal of any of his grievance in the case in which he is in prison or custody etc. I may refer to Section 420 of the Criminal Procedure Code which provides that:- "If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the Officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court."
In order to advance the above object, Rule 94 (Chapter 5) of Pakistan Prisons Rules, 1978 is referred which provides as under:-
(i) If a convicted prisoner without a friend, relative or counsel to act for him, elect s to appeal, the Superintendent shall apply to the Court concerned for a copy of the judgment or order against which the appeal is to be filed. If several persons are sentenced in the same case, only one copy of judgment shall suffice for all the prisoners electing to appeal from the same prison.
(ii) On receipt of the copy of the judgment or order , a prisoner if literate shall be allowed to write his own appeal. If the prisoner is not able to write, the Superintendent shall cause his appeal to be written for him by another prisoner or a prison of ficial strictly in accordance with the dictation of the appellant.
(iii) An appeal preferred by a prisoner from the prison should, before despatch, be read over to him in the presence of the Superintendent. If the prisoner approves of the appeal, he shall affix his signature or thumb-impression on it.
The Superintendent shall sign the document and cause the of ficial seal of the prison to be stamped on it.
(iv) The Superintendent shall forward the appeal, with a copy of the judgment or order appealed against, direct to the appellate court as required by section 420 of the Code of Criminal Procedure.
Article 9 of the Constitution of Islamic Republic of Pakistan guarantees the right to life and liberty of citizens of Islamic Republic of Pakistan in the following words:- "No person shall be deprived of life or liberty save in accordance with law ."
The above-quoted provision i.e. Section 19(xvii) of the Court Fee Act, 1870 clearly grants exemption from affixing court fee on the petitions by prisoners or other persons in duress or under restraint of any court or its officer(s). The office should avoid from raising illegal and unnecessary objection on the petitions when there are specific, clear provisions and rules granting exemption particularly when question of liberty of a person is involved because such like objection may curtail his/her days of liberty if they are otherwise entitled to apply to the High Court to be set at liberty in accordance with law. Such office objections may amount to infringement of their fundamental right of liberty as envisaged in Article 9 of the Constitution if otherwise they are entitled to apply for any relief of liberty on merits. Unnecessary objections cause delay in disposal of cases and waste the precious time of the court. Article 4 of the Constitution covenants that every citizen has protection of law and to be treated in accordance with law particularly (i) no action detrimental to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law; (ii) no person shall be prevented from or be hindered in doing that which is not prohibited by law (iii) no person shall be compelled to do that which the law does not require him to do.
9. For what has been discussed above, I am of the view that since the petitioners are confined in jail to serve out sentences awarded to them in the aforementioned criminal case, thus, in the presence of afore-quoted provisions of law, they are not liable to affix court fee/stamp paper on this petition. The office objection, in view of above, is over-ruled .
10. Before parting with this order , I duly appreciate the assistance rendered by Mr. Fakhar Bashir Sial and Mr. Muhammad Shafiq, Civil Judges/Research Officers Lahore High Court, Multan Bench, Multan to deal with the issue discussed and dealt with hereinabove.