' AJMAL MIAN, J. ---This is an appeal with the leave of this Court against the judgment dated 7-5- 1992 passed by a learned Single Judge of the High Court of Sindh in Criminal Miscellaneous Application No, 109 of 1992 filed by the respondents under section 561-A, Cr.P.C. For quashment of proceedings pending against them before the District Magistrate pursuant to F.I.R. No,6 of 1992 lodged with the Docks Police Station, Karachi, on 27-1-1992 under section 9 of the Exclusive Fishery Zone (Regulation of Fishing) (Amendment) Ordinance, 1983 (Ordinance XXIX of 1983), hereinafter referred to as the Ordinance, allowing the same and quashing the above proceedings. Leave to appeal was granted to consider the following two questions:--
(i) Whether the learned Judge in chambers was justified in holding that the prosecution of the respondents was not competently initiated for want of requisite notification;
(ii) Whether the High Court was justified in entertaining the above petition under section 561-A, Cr.P.C. In the present case without asking the respondents to approach the. District Magistrate under section 249-A, Cr.P.C.
2. The brief facts are that under S.R.O. No, 331(1)/79 issued under clause (b) of section 2 of the Exclusive Fishery Zone (Regulation of Fishing) Act, 1975 (XXXII of 1975), hereinafter referred to as the Act, authorised the Director, Marine Fisheries Directorate, Government of Pakistan, and all officers of the said Directorate in Grade-16 and above of the National Pay Scales and the Commanding Officer of the Pakistan Navy Ships, vessels or boats not below the rank of a Lieutenant of the Pakistan Navy to exercise and perform all the powers and functions of Fishery Officer.
3. It appears that on 26-1-1992 Lt.-Commander Zafar Iqbal, Deputy Director, Fisheries, addressed a complaint dated 26-1-1992 to the S.H.O. Docks Police Station, Karachi, to the following effects:-- "It is to report that Maritime Security Agency Ship during the routine patrol of the Eastern region apprehended Pak Flag deep sea fishing 'Trawler Al-Basit' who was engaged in illegal fishing within 35 miles of coast in position 2328 N 6736 which is about 18 N.M Miles from the coast. The trawler along with its 17 in number crew of which 11 are Taiwani and 6 are Pakistani have been escorted to Karachi Harbour.
(2) It is requested that a case be registered against the owner and crew of the subject trawler under the Exclusive Fishing Zone Regulation of Fishing Act, 1975 as amended in 1983 and the custody of the crew be taken from Maritime Security Agency."
4. On the basis of the above written complaint, F.I.R. No, 6 of 1992 was registered on 27-14992 at 11- 00 a.m. On the basis of the above F.I.R., the proceedings were initiated, which were challenged by respondents Nos. 1 to 18 i,e, respondent No, 1, being the proprietor of Marine Management Company and respondents Nos. 2 to 18, being the members of crew of the above trawler, AL-BASIT, hereinafter referred to as the trawler, by filing an application under section 561-A, Cr.P.C. In the High Court of Sindh, which were allowed by the impugned judgment for the following reasons:-- "Since the very registration of the case by a person, who was not a Fishery Officer as defined in the S.R.O., the investigation by A.S.I. And the cognizance taken by the District Magistrate were illegal and the continuance of proceedings in these circumstances shall be an abuse of the process of the Court. The proceedings, which are outcome of F.I.R. No, 6/92 of P.S. Docks, are hereby quashed. The trawler 'Al-Bash' owned by the petitioner No, 1, if not released so far, is directed to be released forthwith. These are the reasons for the short order dated 5-5-1992."
' Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
5. In support of the above appeal, Mr. A. Aziz Khan, leaned Deputy Attorney-General appearing for the appellant, has contended that Lt.- Commander Zafar Iqbal was competent to seize the trawler and to initiate the above proceedings in view of S.R.O. No 331(1)/79 published in the Gazette of Pakistan on 14-4-1979, hereinafter referred to as the S.R.O., and therefore, the learned Judge in chambers was not justified in quashing the above proceedings. His second submission was that, in any case, the respondents should have pressed into service section 249-A, Cr.P.C. (wrongly mentioned as ,249-K, Cr.P.C. In the leave granting order) before the District Magistrate.
' On the other hand, Mr. Saghir Hussain Jaffri, learned counsel appearing for respondents Nos. 1 to 18, has submitted that since Lt.-Commander Zafar Iqbal was not competent either under the Act or the S.R.O., the learned Judge in chambers was justified in allowing the respondents' application under section 561-A, Cr.P.C. He has further submitted that since the proceedings were patently without jurisdiction, coram non judice, the respondents were justified in approaching the High Court instead of filing an application under section 249-A, Cr.P.C. Before the District Magistrate.
6. Before dealing with the above contentions, it may be pertinent to refer to the relevant provisions of the Act and the S.R.O.
' It may be stated that the Act was assented to by the President on 1-3-1975 and was gazetted in the Gazette of Pakistan, Extraordinary, Part I, on 5-3-1975. It was extended to the whole of Pakistan and to waters within the exclusive fishery zone of Pakistan beyond the territorial waters. It was applicable to all fishing crafts within the zone and to all persons on board such fishing. Crafts. It was enforced at once. The Act was amended by the Ordinance but the amendments are not pertinent to the controversy in issue.
It may further be observed that clause (b) of section 2 defines the term "Fishery Officer" as means any person who is authorised by the Federal Government by notification in the official Gazette, to exercise or perform any of the powers or functions of Fishery Officer under the Act. Whereas clause
(d) defines the term "fishing craft" as to include every vessel of whatever description and size and in whatever way propelled or moved which is used in fishing or the transport or processing thereof.
' It may also be stated that section 3 prohibits to operate a fishing craft or use any kind of fishing gear within the zone except under the authority of a licence. Whereas section 4 lays down that every fishing craft shall be subject to any law relating to navigation for the time being in force. It also provides for other allied matters relating to fishing.
' It may be observed that section 6 empowers the Federal Government to prohibit fishing for any period and for all or any specified area within the zone of or any specified description of fish.
Whereas section 7 empowers the Fishery Officer to search any fishing craft or landing ground.
' Since section 8 of the Act has direct bearing on the controversy, it may be pertinent to reproduce the same, which reads as follows:-- "8. Seizure and disposal. -(1) If any Fishery Officer has reason to believe that any fish has been caught or taken in contravention of any provision of this Act or the rules, or that any fishing craft and fishing gear has been used for such fishing, he may arrest without warrant the owner or the person in charge of the vessel and seize such fish.
(2) Every officer making an arrest under subsection (1) shall, without unnecessary delay, take of send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of the nearest police station; and thereupon the provision of the Code of Criminal Procedure, 1898 (Act of 1898), applicable in respect of a person who, having been arrested without warrant, has been taken or sent before a Magistrate or an officer in charge of a police station shall apply to him.
(3) Any fish seized under subsection (1) shall be disposed of in accordance with the decision of the Court before which the owner or person in charge of the fishing craft is prosecuted under subsection (2): ' Provided that, if the fish seized is such as is likely to perish unless preserved or processed without delay, it may be sold or otherwise disposed of and, if it is sold, its value shall be treated as seized property for the purpose of this subsection."
A perusal of the above-quoted section 8 indicates that a Fishery Officer if he has reason to believe that any fish has been caught or taken in contravention of any provision of the Act or the rules, or that any fishing craft and fishing gear has been used for such fishing, he may arrest without warrant the owner or the person in charge of the vessel and seize such fish. It may further be noticed that subsection (2) imposes an obligation on the officer who seizes the vessel and arrest the owner to take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of the nearest police station without unnecessary delay and thereupon the provision of the Code of Criminal Procedure, 1898 becomes applicable in respect of a person who having been arrested without warrant, has been taken or sent before a Magistrate or an officer in charge of a police station. It may be noticed that subsection (3) provides that any fish seized under subsection (1) shall be disposed of in accordance with the decision of the Court before which the owner or person in-charge of the fishing craft is prosecuted under subsection (2). It may further be noticed that proviso to above subsection empowers the disposal of the seized fish without delay if it is likely to perish unless preserved or processed.
7. Now we may revert to the S.R.O., which reads as follows:-- "In pursuance of clause (b) of section 2 of the Exclusive Fishery Zone (Registration of Fishing) Act, 1975 (XXXII of 1975), the Federal Government is pleased to authorise the Director, Marine Fisheries Directorate, Government of Pakistan, and all officers of the said Directorate in Grade-16 and above of the National Pay Scales and the Commanding Officers of the Pakistan Navy ships, vessels or boats, not below the rank of a Lieutenant of the Pakistan Navy to exercise and perform all the powers and functions of Fishery Officer under the said Act."
' A perusal of the S.R.O. Indicates that pursuant to clause (b) of section 2 of the Act, the Federal Government was pleased to authorise the Director, Marine Fisheries Director, Government of Pakistan, and all officers of the said Directorate in Grade-16 and above of the National Pay Scales and the Commanding Officers of the Pakistan Navy ,ships, vessels or boats not below the rank of a Lieutenant of Pakistan Navy to exercise and perform all powers and functions of Fishery Officer under the Act.
8. The controversy in issue is, as to whether Lt.-Commander Zafar Iqbal who is seized and arrested the owner of the trawler and its crew members and who lodged the F.I.R., as an officer was covered by the relevant S.R.O. It may again be pointed out that under clause (b) of section 2 of the Act it has been provided that Fishery Officer means any person who is authorised by the Federal Government by a notification in the official Gazette to exercise or perform any of the powers or functions of the.
Fishery Officer under the Act.
9. Mr. A. Aziz Khan has urged that since Lt.-Commander Zafar Iqbal was an officer of the Pakistan Navy not below the rank of a Lieutenant, he was competent under the S.R.O. To exercise the power under the Act. This submission seems to overlook the fact that the S.R.O. Provides that the Commanding Officers of the Pakistan Navy ships, vessels or boats not below the rank of a Lieutenant were authorised under the S.R.O. Admittedly, Li- Commander Zafar Iqbal was not at the relevant time commanding any Naval ship, vessel or boat but he was on deputation with the Directorate of Fisheries and the vessel on which he was on board, namely, M.S. Rehmat, was not a Naval boat or vessel. He has also referred to S.R.O. 44(KE)/92, dated 28-1-1992 gazetted on 10-2- 1992, whereby the Federal Government notified under clause (b) of section 2 of the Act, the Fishery Officers for the purpose of the Act in the following words:-- "In exercise of the powers conferred by clause (b) of section 2 of the Exclusive Fishery Zone (Regulation of Fishing) Act, 1975 (XXXII of 1975), and in supersession of its Notification No, S.R.O.
334(1)/79, dated the 14th April, 1979 the Federal Government is pleased to authorise Director- General, Marine, Fisheries Department, Government of Pakistan, and all officers of the said Department in Basic Pay Scale 16 and above and the Commanding officers of the ships, vessels and boats of the Pakistan Navy and Maritime Security Agency, not below the rank of Lieutenant of the Pakistan navy and Maritime Security Agency, to exercise and perform all the powers and functions of Fishery Officers under the said Act."
9-A. It may be pointed out that the above S.R.O. Is wider in its import as compared to the S.R.O.
Inasmuch as it included Director-General, Marine, Fisheries Department and Maritime Security Agency. However, since the incident had taken place on 26-1-1992, the above S.R.O. Cannot be pressed into service as the question in issue is, as to whether the seizure of the trawler and the arrest of its owner and the crew members were made on 26-1-1992 by the competent officer. If on the above date, Lt.-Commander Zafar Iqbal was not an officer notified under the S.R.O., his seizure of the trawler and arrest of the owner of the trawler and its crew members and the subsequent proceedings founded on the same, would be illegal. In this regard reference may be made to the case of Muhammad Yousuf v. The Collector of Sea Customs, Karachi and others PLD 1969 SC 153, in which the facts were that certain goods were seized by the Customs authorities from the shop of the appellant. He filed a Constitution petition, which was heard by a Division Bench of the erstwhile High Court of West Pakistan at Karachi. Farooqi, J. Was of the view that since the seizure of the goods was found to be illegal, the goods should be returned. Whereas Anwarul Haq, J. Was of the view that the goods should not be returned as it might prejudice the contemplated proceedings under the Sea Customs Act. The matter was referred to a learned third Judge Khamisani, J., who agreed with Farooqi, J. However, Fa'rooqi, J. While ordering return of the goods imposed certain conditions including that the goods shall not be sold or disposed of within a period of three months. The appellant with the leave of this Court filed an appeal against the imposition of the above conditions.
' The above appeal was allowed and it was held that the High Court under Article 98 of the late Constitution of 1962 had no jurisdiction to impose any condition once it came to the conclusion that the seizure of the goods was illegal and the goods were to be returned. The High Court judgment is reported in PLD 1968 Karachi 599 (S.M.
Yousuf and others v. Collector of Customs and others). The ratio of the above judgment of this Court seems to be that if seizure of the goods under the Sea Customs Act was found to be illegal, the same were to be returned without imposing condition. This judgment has been followed by this Court as well as the High Courts including in the case of Messrs Shaheen Calico Printing Works v.
Mumtaz Ali Khan and 3 others PLD 1975 Lahore 1442.
10. The ratio decidendi of the above case is applicable to the present case as we have found that Lt.-Commander Zafar Iqbal was not competent either to seize the trawler or to arrest the owner and the crew members and, therefore, the trawler and the above-arrested persons were to tie released. We may point out that under subsection (1) of section 8 in case of contravention of any provision of the Act, a Fishery Officer has been empowered to arrest without warrant the owner or the person in-charge of the vessel and not the members of the crew who are not in-charge of the vessel as has been rightly pointed out by Mr. Abdul Ghafoor Mangi, learned Additional Advocate- General, besides the seizure of the trawler and fish.
' The above judgment of this Court supports the view which we are inclined to take. In this view of the matter, the conclusion arrived at by the learned Judge in chambers seems to be in consonance with law.
11. This leads us to the second question, namely, whether the respondents should have approached the District Magistrate under section 249-A, Cr.P.C. Instead of invoking section 561-A; Cr.P.C. Before the High Court. In this respect it may be pertinent to reproduce above two sections, which read as follows:-- "Section 249-A. Cr.P.C,: 249-A. Power of Magistrate to acquit accused at any stage.--Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
"Section 561-A. Cr.P.C.: 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."
A perusal of the above-quoted two sections 'indicates that both are couched in different language and their scopes appear to be different. Section 249-A empowers a Magistrate to acquit an accused at any stage of the case if after hearing the prosecutor and the accused and for the reason to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. Whereas section 561-A, Cr.P.C. Lays down that nothing in the Code shall be deemed to limit or effect 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.
12. The above power is not available to a Magistrate under section 249-A, Cr.P.C. Inasmuch as under the latter provision, he can acquit an accused after he considers either that the charge is groundless or that there is no probability of the accused being convicted of any offence. On the other hand, the High Court can quash a criminal proceeding in order to prevent abuse of process of any Court or otherwise to secure the ends of justice.
13. At this juncture it may be appropriate to refer to the case of Mian Munir Ahmad v. The State 1985 SCMR 257, in which a comparison of the provisions of sections 249-A, 265-K, and 561-A, Cr.P.C. Was made as under:- "16. As a result of the above discussion we hold; that provisions of section 561-A, Cr.P.C. Apply to the proceedings pending before any Court, whether subordinate to the High Court or not, unless the offence being tried is an offence under any law other than the Pakistan Penal Code and the power has. Been specifically taken away by any enactment relating to the said (special) law; and that the powers of the trial Court under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Are coextensive with the similar powers of the High Court under section 561-A, Cr.P.C., and both can be resorted to.... ...
' It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C., directly."
14. Mr. A. Aziz Khan, learned Deputy Attorney-General has referred to the following cases on the above question:--
(i) Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317. ' in which this Court has held that inherent jurisdiction given by section 561-A, Cr.P.C. Is not alternate jurisdiction or an additional jurisdiction, but this jurisdiction is preserved "in the interest of justice" to redress grievances for which no other procedure is available or has been provided by the Courts itself.
(ii) Khushi Muhammad and 4 others v. The State 1979 SCMR 94; ' in the above case the petitioners had moved the Lahore High Court under section 561-A, Cr.P.C. For quashing proceedings initiated against them for abetment of the alleged commission of offences for rash and negligent driving under section 279/338/304, P.P.C. But the same was dismissed on the ground that it was premature to hold that on the allegations levelled against the petitioners, no case was made out against them. The petition for leave to appeal was declined and in the dismissal order the following observations were made:- "However, under the law, as it now stands, the trial Magistrate can acquit the petitioners under section 249-A, Cr.P.C. At any stage of the proceedings and in these circumstances the most appropriate remedy for the petitioners appears to be to request the trial Magistrate to consider their case under the above provisions of the law. The learned trial Magistrate should, thereupon, apply his mind to this aspect of the matter and in the first instance, before proceeding any further with the proceedings, decide whether the petitioners are entitled to be acquitted, in terms of section 249-A, Cr.P.C."
' Mr. A. Aziz Khan has also relied the judgment in the case of Mian Munir Ahmad v. The State (supra).
15. We are inclined to hold that if quashment of criminal proceedings is sought on the ground that the charge is groundless or that there is no probability of the accused being convicted of an offence, which questions cannot be decided without appraisal of the evidence or the material placed on record or where the question is, whether the facts as alleged in the F.I.R. Or in a direct complaint constitute an offence or not, the High Court should insist upon that the above questions should be agitated before the trial Court under section 249-A, or section 265-K, Cr.P.C. As the case may be or through any other permissible mode before invoking the jurisdiction of the High Court.
However, if the quashment of criminal proceedings is sought on the ground that the proceedings are ex facie without jurisdiction and continuation of the same will constitute abuse of the process of the Court, the High Court will entertain proceedings without insisting upon that a party should first approach the trial Court. In such a case it will not be just and proper to insist upon that a party should approach the trial Court.
16. In the present case, since admittedly Lt.-Commander Zafar Iqbal had no jurisdiction in the matter to seize the trawler or to arrest its crew members or to lodge the report, the entire exercise was coram non judice and, therefore, the learned Judge in chambers could invoke section 561-A, Cr.P.C.
17. It may be stated that the learned Judge in chambers has referred to the following cases:--
(i) Muhammad Azam and 3 others v. The State PLD 1991 Lahore 313; ' in which report lodged by S.H.O. Of the police station under section 6 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, was quashed by the Lahore High Court on the ground that neither it was lodged by a person in respect of whom Qazf was committed nor by any person authorised by them.
(ii) Ram Chand v. The State and another PLD 1966 (W.P.) Karachi 207; ' in which the erstwhile High Court of West Pakistan at Karachi quashed a complaint filed under sections 27 and 28 of the Displaced Persons (Compensation and Rehabilitation) Act on the ground that the same was filed by a person who was not competent.
18. The above judgments do support the view, which found favour with the learned Judge in chambers.
19. The upshot of the above discussion is that the judgment of the High Court is unexceptionable the appeal has no merits. It is, accordingly, dismissed, but there will be no order as to costs.