JUDGMENT CH. KHURSH1D AHMAD, J.- The petitioner seeks the quashment of F.I.R.No. 12/94 registered at P.S.FIA/SIU Islamabad on 10.11.1994 for the commission of offences under sections 419, 420, 468, 471/109 PPC, 5(2) 47 P.C.A, and Article 3 of Holder of Representative Offices (Punishment for Misconduct) Order, 1977 on the grounds that the registration of the case was the result of infringement of immunity granted under section 5 of Protection of Economic Reforms Act, 1992 (Act XII of 1992). It was further alleged that opening an enquiry into the foreign currency account was also against the freedom to bring, hold, sell and take out foreign currency as ensured under section 4 of the Act XII of 1992 supra. The authority of Saad Ullah Khan, Commissioner of Income Tax, Company Zone-I, Lahore, was also questioned and it was contended that he set the ball of enquiry, registration of case and investigation by F.I.A, rolling by writing a letter to Regional Commissioner of Income Tax, Central Region, Lahore without any lawful authority and that all the proceedings were tainted with mala fides. It was further contended that all the proceedings prior and subsequent to the registration of the case were without lawful authority and of no legal effect and a direction was sought from the Court as a relief restraining the respondents from implementing the said directions, steps and requisitions, utilization the information collected and record obtained for the purpose of the said F.I.R.
2. The learned counsel for the petitioner extensively quoted from Act XII of 1992 supra and submitted that the opening of foreign currency accounts in the names of Suleman Zia and Muhammad Ramzan could not be looked into even with regard to the irregularity committed in the opening of the said accounts and the opening of even a fictitious account did not violate any law for the time being in force in the country and, while reading section 4 of Act XII of 1992 supra, he stressed upon: - 4) "...... And shall not be required to make a foreign currency declaration at any stage nor shall any one be questioned in regard to the same." and while arguing the question of total immunities as granted under section 5 of the Act XII supra, following was specifically stressed
(5) "......... Shall continue to enjoy immunity against any inquiry from the Income Tax Department or any other taxation authority as to the source of financing of the foreign currency accounts."
3. It was contended on behalf of the petitioner that the mala fide against the petitioner was manifest from the fact that in column No.4 of the F.I.R. (Annexure A) the place of occurrence was given as "Lahore etc" but still the F.I.R, was lodged at P.S. FIA/SIU Islamabad and that the same was a contravention of section 156 Cr.P.C. Section 177 Cr.P.C, was also referred. According to section 177 Cr.P.C, submitted the learned counsel for the petitioner, appearing in Part VI, Chapter XV of Cr.P.C, the place of enquiry and trial could only be the place within the local limits of whose jurisdiction the offence was committed.
4. The learned counsel, in the context of allegation of mala fides referred to the contents of the letter of Commissioner of Income Tax dated 10.11.1994 and that of the F.I.R, and submitted that in fact there was no enquiry as mentioned in the F.I.R and the same was almost reproduction of the letter of the Commissioner of Income Tax. This submission, I may remark here, is absolutely out of context for the purpose of the disposal of the present petition.
5. It was the case of the petitioner that obtaining of loan facility from a bank as against the security of a foreign currency account, as in the present case, was also protected by the immunity under section 4 and complete secrecy as provided under section 5(3) of Act XII of 1992. Mr. Kashif Masud Qazi, the Account-holder was a resident of U.K. And had foreign currency account and he had the freedom to open such account as he was covered by," all other persons," and as such the same could not be questioned. The learned counsel further contended that the Commissioner could not look into the source of financing of foreign currency account of Mr. Kashif Masud Qazi as the same was provided total immunity under section 5(1) of Act XII of 1992 and the banks as such, were obliged to maintain complete secrecy in respect of the transactions in the foreign currency accounts as provided by section 5(3) of the Act supra and that the account holder was a person in existence and living in-IIIford, Essex, U.K. As the interior Minister had himself admitted, which admission was published in daily Jang of Lahore^ which, according to him, had evidentiary value.
6. Lastly it was submitted that from the contents of the F.I.R no offence was made out and that Act XII of 1992, being a special Act, had over-ridden the Income Tax Ordinance 1979 and "all other law for the time being in force" and as such F.I.A. Act 1979, Criminal Procedure Code, Pakistan Penal Code, Prevention of Corruption Act, 1947 and Holder of Representative Offices (Punishment for Misconduct) Order, 1977 were to be considered as repealed, by implication, by Act XII of 1992. He placed reliance on "Income Tax Officer Jalandhar Vs. The State (AIR 1950 East Punjab 306).
7. The learned Deputy Attorney General appearing on behalf of the respondents raised the objection of jurisdiction.
He contended that Islamabad, where the F.I.R was registered, was within the civil division of Rawalpindi Bench and the present petition was in the exclusive jurisdiction of Rawalpindi Bench as provided under Rule 3 of the Lahore High Court (Establishment of Benches) Rules, 1981. It was also submitted that a similar application was pending before the Rawalpindi Bench and this application could not proceed at the Principal Seat. In reply to the same, the learned counsel for the petitioner submitted that in column No.4 of the F.I.R, the place of occurrence was mentioned as Lahore being one of the places and in view of section 177 of Cr.P.C, the Principal Seat could hear and decide the present petition. This objection was taken at the very outset and the argument was so repelled by the learned counsel for the petitioner. The learned Deputy Attorney General took no steps to get the present petition transferred to the Rawalpindi Bench. He could have approached the Hon'ble Chief Justice for the needful but he conceded that no prayer was made to the Hon'ble Chief Justice in this behalf. As Lahore was one of the places of occurrence as mentioned in the F.I.R itself and Lahore was within the civil division of the Principal Seat, I am satisfied that Principal Seat also has the jurisdiction to dispose of the present petition. It was admitted by the learned counsel for the petitioner that the matter pending before the Rawalpindi Bench was a petition under section 498 Cr.P.C.
8. The learned Deputy Attorney General had sufficient time to obtain the orders of the Hon'ble Chief Justice but still failed to make a petition before his lordship. I am to observe that none of the parties made a request to this Court to place this file before Hon'ble Chief Justice for passing appropriate orders. I proceed to dispose of this writ petition.
9. I have examined "Income Tax Officer Jalandhar Vs. The State (AIR 1950 East Punjab 306). The same relates to Section 54 of Income Tax Act of 1922 which, prior to the promulgation Income Tax Ordinance, 1979, was also in force in Pakistan. In the cited case the dispute was that the police officer had obtained search warrants from the Magistrate whereas 54 of the said Act read as under:- "54(1) All particulars contained in any statement, disclosure made, return furnished or accounts or information or documents produced under the provisions of this Act, or in any evidence given, or affidavit or the position made, in the course of any proceeding under this Act other than proceeding under this Chapter, or in any record of any assessment proceeding, or any proceedings relating to the recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential, and notwithstanding anything contained in the Evidence Act, 1872, no Court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record of any part of any such record, or to give evidence before it in respect thereof.
54(2) If a public servant discloses any particular contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine."
10. Income Tax Act 1992 (Act XI of 1922) was repealed vide section 166 of the Income Tax Ordinance (XXXI of 1979).
It was observed in the above case that "the objection of the said section was secrecy of the financial affairs of the assessee as disclosed in the assessment proceedings and reasons for having a provision of this kind in the Income Tax Act is that assessee may not be reluctant to disclose the details of their business and it is quite possible that they may not disclose their affairs without any kind of reserve unless they had an assurance that the information contained in these returns, accounts, statements and so forth furnished by them would not be divulged to anyone. It was further observed that if the object of the Act was secrecy, the same could be defeated by issuing process under the powers given by another Statute.
11. The dictum laid down in this authority was not applicable to the facts of the present case. After the promulgation of Ordinance XXXI of 1979 supra a similar provision has been incorporated in the said Ordinance as section 150. The prohibition as mentioned in section 54 of Act 1922 supra was qualified and the rider clause as sub-section (3) was added thereto and the prohibition as contained in subsection (1) thereof, which was similar to section 54 of Act XII of 1992 was not to apply to the disclosures as mentioned in sub-section of section 150 supra. Clause (f) to sub- section (3) reads as under:- "(3) Nothing contained in sub-section (1) shall apply to the disclosure of such facts to any authority exercising powers under the Central Excises and Salt Act, 1944 (1 of 1944), the Estate Duty Act, 1950 (X of 1950), the Sales Tax Act 1951 (III of 1951), the Gift Tax Act, 1963 (XIV of 1963), the Wealth Tax Act, 1963 (XV of 1963), or the Customs Act, 1969 (IV of 1969), as may be necessary for the purpose of enabling it duly to exercise such powers;or"
There was yet another clause which read as under: -
(i) of any such particulars as may be required by any order made under sub-section (2) of Section 19 of the Foreign Exchange Regulation Act, 1947 (VII of 1947), or for the purposes of any prosecution for an offence under Section 23 of that Act, or" and also
(m) of any such particulars for the purposes of a prosecution for any offence under the Pakistan Penal Code (Act XLV of 1860) in respect of any such statement, returns, accounts, documents evidence, affidavit or deposition, or for the purposes of prosecution for an offence under this Ordinance; or.
12. To appreciate the matter properly and in absence of there being an express prohibition as contained in Act 1922 supra, we shall have to look into the provisions of Act XII of 1992 itself. Section 3 of the Act supra is very clear on this point and the same would indirectly repeal the provisions of the Acts mentioned therein and also "any other law for the time being in force" but the Act is to be read as a whole and no particular section can be ignored while interpreting intent of the Legislature regarding a particular section.
13. Notwithstanding the provisions of sections 3,4 and 5 of Act XII of 1992 supra there is section 9 to the said Act which reads as under: - "9. Secrecy of banking transaction:- Secrecy of bona fide banking transactions shall be strictly observed by all banks and financial institutions, by whosoever owned, controlled or managed."
Act XII of 1992 supra is not sub-divided in parts and or Chapters. The Act contains, in all, 11 sections and while codifying Section 9 of Act supra, word "bona fide" was used in relation to banking transactions. It was in the wisdom of Legislature that they inserted the word "bona fide" in the said section while providing blanket of secrecy to the banking transactions.
14. Banking transactions, when qualified as bona fide in the section, shows the clear intent of the Legislature. Banking transactions, other than bona fide, were not provided any immunity, or secrecy. In view of the above section the provisions of section 4 and section 5 are to be regulated and are to be read and applied subject to limitation of "bona fide" as imposed by Section 9 of the Act XII supra. The' words "take out foreign exchange within or out of Pakistan in any form" is subject to the same condition of "bona fides" as mentioned in section 9 of the Act. Similarly the blanket of secrecy provided under sub-section (3) of section 5 is subject to the same qualification.
15. Adverting to the contents of the F.I.R. No. 12 of 1994, which is impugned in the present writ petition, the bank transactions have been questioned as otherwise than bona fides.
The facts mentioned in the FIR regarding operation of foreign currency accounts maintained in the names of Suleman Zia and Muhammad Ramzan" and the facility of finance obtained by the petitioner, from a bank is a banking transaction and the same having been obtained as against the security of a foreign exchange account, I am of the view that the transactions could be looked into to see as to whether they were bona fide, where- the allegation of their being other than bona fide has been made.
16. The investigation after registration of the F.I.R, was the exercise of State power and this court cannot place any clog thereon in exercise of its extra ordinary constitutional jurisdiction and would refrain from intruding upon the domain of Federal Investigating Agency who are investigating the case.
17. The writ petition has no force and the same is dismissed.
18. Short order was announced at 9.40 am in the presence of Mr. Ashtar Ausaf Ali, Advocate and the above are the reasons for the dismissal.
Mr. A.K. Dogar Advocate, learned counsel for the petitioner, had appeared on 19.12.1994 after about half an hour of the announcement of the short order which was made in the presence of Mr. Ashtar Ausaf Ali Advocate who had appeared with Mr.A.K.Dogar on 18.12.1994 during the course of arguments. Mr.A.K.Dogar Advocate had addressed the Court under the assumption that even the short order was not signed. He was informed that the short order was dictated, typed and signed but the detailed judgment which was being typed in my chamber by my Personal Assistant was still to be read by me and to be signed. He demanded that the short order be got inspected by him and he was informed that I was sitting in the Court room and he could come at 10.30 A.M. Ie. Tea break, and inspect the file. There was no reason to assume for the learned counsel that the detailed judgment was still to be signed. He appeared today before the break and thereafter the file was requisitioned.
2. He submitted that the judgment would only assume its legal character when it is written, signed and pronounced. As the detailed judgment was not signed till the time he had put in appearance in Court on 19.12.1994, he submitted that notice be issued to the other side, the judgment be recalled and the parties be re-heard on the point that they may agitate. On his query regarding the basis of dismissal of the writ petition, which he made with the courtesy that a lawyer extends, he was considered, as a rider to Sections 4 and 5 of Act XII of 1992.
3. At that particular time I was hearing another matter and I had informed the learned counsel that he could come after 10.30. A.M. And may have a look at the file but he requested that his submissions be heard on the point on 20.12.1994.
4. Today the file has been requisitioned and is before me.
5. The learned counsel for the petitioner has relied on "Muhammad Ibrahim Vs. D.C." (1971 SCM R 63).
He quoted from the said judgment, written by Mr. Muhammad Yaqub Ali J. (as he then was) and drew my attention to the following observation "It is well established that the learned Judges in the High Court can change their decisions before putting their signatures to the judgment."
The learned counsel for the petitioner has also relied on "Muhammad Amin Vs. Muhammad Ramzan" (PLD 1988 Lahore 331) and has submitted that as the detailed judgment was not typed, signed and pronounced at the time of his coming to the Court after receipt of information about the fate of writ petition from Mr. Ashtar Ausaf Ali Advocate on 19.12.1994, the same, thus, was liable to be recalled. It has also been contended that in the circumstances and in view of the law laid down in the above two citations, notice be issued to the other party and arguments of both the parties be heard and judgment be recalled.
5. The learned counsel submits that he wanted to address mainly on the implication of Section 9 of Act XII 1992 which was, according to him, not a rider clause to the preceding sections of the said Act and that the blanket of immunity and secrecy, as provided under Sections 4 and 5 of Act supra, was absolute.
6. It has also been submitted by the learned counsel for the petitioner that the observation of the Court in allowing him to address the Court on the point involved, on the subsequent day, meant, according to him, that the oral order passed earlier had since been recalled and that he was thus entitled to argue as above and that today he had appeared in Court to argue the point.
7. The learned counsel for the petitioner has gone by the assumption that short order was not dictated and signed by me or conversely the same was recalled on his submissions made on 19.12.1994 and for that reason alone he still seeks time to argue the point that the order stood recalled or not, and seeks adjournment for two days.
8. As the short order was signed and announced, the judgment was also signed by me on 19.12.1994 and the file was sent to the office, I feel, in the circumstances, that no lis is pending before me and, therefore, unless an application for review be made, I have become functus officio.
9. With these remarks the matter stands resolved, so far as this Court is concerned.
The file be sent back to the office.. The order was dictated and announced in the presence of the learned counsel for the petitioners.
2. The above may be annexed with the judgment passed on 19.12.1994.