MRS. RASHIDA ASAD, J.---This order shall dispose of the instant Cr. Misc. Application filed under section 561-A, Cr.P.C., impugning order dated 09.11.2019 passed by VIII-Additional Sessions Judge, Karachi (South), on application under Section 265-K, Cr.P.C., in case FIR No. 07/2015, registered at Police Station Corporate Crime Circle (CCC), FIA, Karachi under sections 420, 468, 471, 472, 473, 474, 477-A, 109, 34, P.P.C. read with sections 36/37 Electronic Transactions Ordinance , 2002 and sections 3/4 of Anti-Money Laundering Act, 2010 (AMLA), whereby the request for acquittal of the applicant/ accused has been turned down.
2. The precise background of. the case is that pursuant to an enquiry for alleged commission of the cognizable offences by Messrs AXACT Company (hereinafter the Company), the aforesaid FIR was registered containing allegations that the company and its management (the share holder Directors and Officers) were involved in creation of false, fake, fabricated, misleading, forged and spoofed domain names, digital content for websites and emails purposely to target individuals to defraud, mislead and cheat employees, Government/Public Servants, Diplomatic and Consular Services (Embassies and Consulates attestation, notarization, legislation and visa Services). The FIR contains further alleg ations that such websites included hund reds of Schools/Colleges/ Other educational institutions/accreditation bodies and organizations/job sites purporte dly based at various countries including USA and Middle Eastern Countries. It is further alleged that the accused persons, through such criminal conduct, created false, fabricated and fraudulent universities, accreditation organizations, review and critique sites as well as job sites and payment portals masquerading as IT products/services Sites with object to utilize such websites, emails and phone calls in conjunction with one another in a conspiracy to target various people in order to defraud, embezzle, cheat and extort funds from such individuals impersona ting to be Embassy officials of concerned countries thereby used to call the clients and to extort money by manhandling them. According to prosecution, substantial, cogent and concrete evidence, (oral, documentary and digital) was collected and secured during investigation and such material was sufficient for conviction of the accused persons, accordingly the accused persons were sent up for trial.
3. The applicant Ayesha S. Shaikh has been nominated accused and sent up for trial being Director and holding 1
(one) share of the accused company along with her husband with similar number of share who was dominating the affairs and management of the company being its Chief Executive Of ficer (CEO) also.
4. Perusal of the record and statement of Acting Deputy Director/I.O. (FIA) reveals that in support of the charge sheet, the prosecution has submitted a calendar 91 witnesses out of which 20 witnesses have been examined, whereas, 64 witnesses have been given-up by the prosecution and accordingly 07 prosecution witnesses are left to be examined.
5. Learned counsel for the petitioner has sought acquittal on following three grounds (precisely stated):- a. Proceeding of the pending trial against the applicant and co-accused persons are hit by Double Jeopardy enunciated vide section 403, Cr .P.C. and Article 13 of the Constitution of Islamic Republic of Pakistan. b. The applicant had no role in the affairs and management of the company and she possessed just one (1) share and thus redundant Director of the company being home keeper .
C. The charges against the applicant are groundless and prosecution does not possess any incriminating iota of evidence whatsoever against the applicant inasmuch for her conviction, and as such the continuation of proceedings against the applicant would amount to abuse of law as there is no probability of the applicant being convicted in the case.
6. The learned counsel while dealing with and dilating upon his points of arguments at the very out set contended that continuation of proceedings of the present case is perverse and a sheer violation of section 403 of the Cr.P.C., and Article 13 of the Constitution of Islamic Republic of Pakistan and thus the case is hit by Double Jeopardy . The counsel for the applicant sought support to his arguments with reference to FIR No. 56/2015 (Annexure A-4 of the application) registered on 07.06.2015 at Police Station FIA, Cyber Crime Circle, Islamabad under sections 419, 420, 468, 471, 109, 34, P.P.C. read with sections 36/37 Electronic Transactions Ordinance and Section 4 of the Anti-Money Laundering Act, 2010. The learned counsel argued that the said FIR contains the same and similar allegations and offences as of FIR which is subject matter of the case pending before the trial Court. To avail the benefit of principle of Double Jeopardy as envisaged in section 403 of the Cr.P.C, the learned counsel for the applicant/accused relied on Judgment of the learned Additional Sessions Judge-IV , West/Islamabad (Annexure A-5 of the Application) whereby the applicant and co-accused persons were acquitted of the charges which are the same as involved in the present case. The learned counsel contended that findings of the learned trial court about the point of Double Jeopardy are fanciful, flimsy , unfounded and devoid of facts and law. Per learned counsel, had the facts been appreciated in its true perspective the findings would have been otherwise and thus the dismissal of application under section 265-K, Cr.P.C., rejecting the plea and point of Double Jeopardy is perverse and liable to be corrected by this court by exercising jurisdiction vested in this court vide section 561-A, Cr.P.C. The learned counsel relied upon case law 2014 SCMR 1376 (Head Note (b), 2010 SCMR 861 and 2018 MLD 2089 . Ratio Decidendi of all citation is that no persons could be vexed twice and prosecuted or punished for the same offences if he was guilty of offence under another enactment, though by the same chain of facts, he could be tried, convicted and punished under that very offence committed by him. To my understanding there is no cavil and confusion about the principle of Double Jeopardy within the ambit section 403 of the Cr.P.C., provided both the trials are in respect of same of fences.
7. The learned counsel for the applicant further argued that the applicant is although one of the Director of the accused company but she was holding just one share, yet she had never been active to deal with the management and affairs of the company but rather it reveals from the record that she was a house wife and thus she cannot be saddled with the actions emanating to offences, if any, committed by the persons involved in the management and affairs of the company as commission of an of fence is a strict liability .
8. The learned counsel for the applicant, more emphatically , argued that from the bare reading and appreciation of the prosecution's evidence recorded, so far, and while considering the remaining evidence in juxtaposition with the statement submitted by I.O. Saeed Ahme d Memon, would reveal unequivocally that registration of the case was mala fide although there was no iota of evidence, whatsoever , to send the accuse d persons for trial. To scribe his arguments, the learned counsel for the applicant deeply thrashed out evidence of the prosecution witness recorded in the pending trial and the remaining evidence yet proposed and supposed to be produced. (omission to refer such evidence is intentional in view of pending trial against the co-accused persons who have not sought their acquittal on the basis of available evidence). The learned counsel argued that the trial court has erred in law by dismissing the applicant's application under section 265-K, Cr.P.C. as, even by stretch of imagination, the charges against the applicant are groundless and there is no probability of her conviction and as such continuation of criminal proceedings against the applicant would amount to abuse of process of law. In support of arguments proposing exercise of powers and jurisdiction unde r sections 249-A and 265-K, Cr.P.C. by the trial court at any stage if the facts of the case so warrant, the learned counsel relied upon case law (i) 2000 SCMR 122 (ii) PLD 2008 Kar. 310 and (iii) PLD 2017 SC (AJ & K)
11. For me there could be hardly any reason to disagree with the principle of law (ratio of the citations) that exercise of jurisdiction under sections 249-A and 265-K, Cr.P.C. is most congenial to the administration of justice in a criminal proceedings if facts of the case so warrant and persons accused of an offence should not be made to face agony of the trial in which the charge is groundless and there is no probability of the accused being convicted.
9. The learned counsel for the applicant even endeavor to maximize the scope of his application which has been filed under section 561-A, Cr.P.C. against order passed on application 265-K, Cr.P.C., filed by the applicant alone, and strenuously argued that while appreciating the available evidence, this court may quash case even against the co-accused persons who have not invoked Sections 265-K, Cr.P.C. and 561-A, Cr.P.C. He relied upon case law (i)
2011 SCMR 863 and (ii) 1972 SCMR 194. However , maintainability of the present Criminal Misc. Application under section 561-A, Cr.P.C. against dismissal of application under section 265-K, Cr.P.C, notwithstanding it was questioned, remained unattended and unaddressed.
10. Conversely , the learned A.A.G, supported the impugned order .
11. I have heard the arguments and carefully perused/scanned the record and noticed that applicant, through instant Cr. Misc. Application under sectio n 561-A, Cr.P.C. has impugned the order passed on application under section 265-K, Cr .P.C. by the ,trial court and sought following prayer:- "In the light of above, it is humbly prayed that instant Cr1. Misc. Application may kindly be accepted, impugned order dated 09.11.2019 may graciously be set-aside and applicant may kindly be acquitted in the best interest of just".
12. To see that when an application under section 249-A or 265-K, Cr.P.C. was dismissed what appropriate remedy is available to a persons/ accused aggrieved of such order , the reproduction of section 561-A, Cr.P.C., (which has been invoked by the applicant) seems appropriate which is as under:- "561-A... Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of Justice".
13. Legislative history shows that after British occupation of the Sub-Continent, the first legislation made by them on the subject of Criminal Procedure was through Act XXV of 1861 which was followed by Act X of 1872 and Act X of 1882. It was after experimenting these laws for almost four decades the Legislatu re finally enacted the law which is presently in force being the Code of Criminal Procedure as Act V of 1898. Having operated this law for a further period of twenty five years, the then law giver tried to identify the shortcoming of the same and found, inter alia, that situations did arise which had not been foreseen by the Legislature and for which no provisions existed in the Code. It was for the reason that section 561-A, was incorporated in the Code of Criminal Procedure in the year 1923 through the Code of Criminal Procedure Act (XVIII of 1923).
14. The purpose of adding this provision to the Code was to recognize and reiterate the inherent powers possessed by a High Court to pass such orders as would enable it to do justice to all concerned. The object was to meet the lacunae existing in the Code and to cater for situations which could not be foreseen by the Legislature and for which no specific provision or remedy had been provided. Section 561-A, was never meant or intended to offer an additional or an alternate remedy . This may be illustrated through an example of a person who is convicted and sentenced as a result of trial held by a Court of Session. Section 410, Cr.P.C. provides him with a remedy of filing an appeal in the High Court to impugn the conviction and the sentence recorded against him. Such person, therefore, cannot be allowed to seek annulment of such a conviction and sentence by invoking the provisions of section 561-A of Cr.P.C. instead of filing an appeal for the purpose under section 410 of the said Code. Vice versa, a person aggrieved by the order of acquittal of an accused passed by any Court other than High Court, may file an appeal against such order under section 417(2-A) of the Code of Criminal Procedure.
15. What has been consistently held by the superiors Courts for over a century now is that the provisions of section 561-A cannot be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law. It is an extraordinary jurisdiction preserved only for extraordinary situations which powers must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine.
16. After a considerable deliberation, I am convinced that jurisdiction under section 561-A, Cr.P.C. is not an additional or alternative jurisdiction. Inherent power of Court cannot be exercised to undo other provisions of the Criminal Procedure Code or to obstruct or divert ordinary course of criminal procedure. Inherent jurisdiction of High Court is neither alternative nor additional in its character and is not intended to invest the High Courts with powers to pass any order particularly after evaluation of evidence as argued in this matter with the support of statement of Investigation Officer. (The statement of the I.O. is in complete derogation of charge sheet submitted by him under section 173, Cr .P.C. for trial of the accused persons).
17. From the above discussion, a question arises that in case of a situation when a person aggrieved of a judgment/order has no right of appeal under section 410 or 417 (2-A) of the Cr.P.C, what remedy is available to him/her and/or whether the Code cater for the situation? To find out the answer of such question, the reproduction of provisions of section 439 of the Cr .P.C. would be advantageous and the same is as under:- "Sec. 439...High Court's powers of revisio n. (1) In the case of any proceeding the record of which has been called for by itself of which otherwise come to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accu sed has committed, than might have been inflicted for such offence by Magistrate of the first class.
(4) Nothing in this section shall be deemed to authorize a High Court;
(a) to convert a finding of acquittal into one conviction; or
(b) To entertain any proceedings in revision with respect to an order made by Sessions Judge under section 439-A.
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under Subsection (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
18. The above provisions of section 439 of the Cr.P.C, so delicately demonstrate that it is an obstacle in the way of provisions of section 561-A of the Cr.P.C. if an accused is aggrieved of an order of dismissal of application under Section 265-K, Cr.P.C, unless the provisions of section 439 of the Code are barred by any special law. The Code of Criminal Procedure is mutatis mutandis applicable for trial of offences under both laws, Anti-Money Laundering Act, 2010 and Electronic Transaction Ordinance 2002 and there is no bar to invoke section 439 of the Code.
19. Accordingly , the said order for dismissal of application under Section 265-K, Cr.P.C. has to be impugned through a Revision Application and not by invoking the jurisdiction of this Court under section 561-A of the Cr.P.C. as such provisions are not additional or alternate remedy and the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation .or where the Code offers no remedy for the redress of a grievance. Moreover , the jurisdiction under section 561-A of the Code is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under section 435 read with section 439 of the Cr.P.C. to examine the correctness, legality or propriety of any findings or order passed by an inferior Court. Such wide powers can only be exercised under section 439 of the said Code, Indeed, abuse, as a rule, the inherent jurisdiction of the court to correct an abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with. The two jurisdictions are thus fundamentally different. I am fortified with a plethora of case law out of which few are referred herein below with the dictum laid down:
(i) 1993 PCr .LJ 125
(b) Criminal Procedure Code (V of 1998) ----S. 561-A---Power under 5.561-A, Cr.P.C. cannot be invoked in respect of matters directly covered by specific provision of the Code of Criminal Procedure.
(ii) 1993 PCr .LJ 215
(b) Criminal Procedure Code (V of 1998) ----Ss. 561-A & 133---Inherent power under S.561-A, Cr.P.C. cannot be invoked in respect of the matter directly covered by the specific provisions of the Code of Criminal Procedure, nor High Court, would interfere at an interlocutory stage of proceedings, unless exceptional circumstances were shown to justify such action.
(ii) PLD 1963 SC 237
(a) Criminal Procedure Code (V of 1998) ----Ss. 561-A & 439---S.561-A contrasted from S. 439---Scope of S. 561-A, limited to abuse of process of Court--- Jurisdiction under S.561-A not available where other "express remedy is provided by Code"---T wo jurisdictions "fundamentally dif ferent".
(iii) PLD 2004 SC 298
(c) Criminal Procedure Code (V of 1998) ----Ss. 561-A, 249-A, 439 & 439-A--- Dismissal of application filed under S.249-A, Cr.P.C.---Quashing of proceedings by High Court under S. 561-A, Cr.P.C.---V alidity---Where an applicati on under section 249-A, Cr.P.C. was dismissed by the Trial Court, the proper remedy for the aggrieved person was under S. 439 or 439-A, Cr.P.C., as the case may be and not under 5.561-A, Cr.P.C, as the provisions of S.561-A, Cr.P.C. were not meant to provide an additional for an alternate remedy---Ex ercise of powers under S. 561-A, by the High Court in the circumstances, was legally untenable---Principles.
20. In view of what has been discussed above, this Cr. Misc. Application is found to be incompetent and as such not maintainable and accordingly the same stands dismissed.
21. Before parting with this order it deem s fit and proper to direct the learned trail court to strictly adhere to the directions of the Hon'ble Supreme Court of Pakistan for disposal of case within stipulated period of time.The learned trail court is further directed to ensure expeditious trail in compliance of direction of the apex court and such no unnecessary adjournment shall be granted. In case of absence of any accused or his counsel, appropriate legal action shall be initiated to ensure smooth proceedings without any hindrance.
22. Copy of this Order shall be sent to the trail court and learned Sessions judge without any amount of delay for information and compliance.