' DR. GHOUS MUHAMMAD, J.---The present cases were referred to this Division Bench for the purposes of resolving a conflict of views arising from the judgments passed by Mr. Mukhtar Ahmed Junejo, J. (as he then was) in Criminal Appeals Nos,106-107 of 1989 (i.e. Sitting singly) and Qaiser Ahmed Hamidi, J., (as he then was) in Criminal Appeal No,132 of 1989 (i.e. Also sitting singly).
2. After perusing the record and hearing the learned counsel at length the precise issue which requires resolution is:-- "Whether the offences which are created by the Companies Ordinance, 1984 (hereafter referred to as "1984 Ordinance") are to be triable by the High Court under section 7 of the 1984 Ordinance or by the Sessions Court under section 476(4) of the 1984 Ordinance?"
3. In Criminal Appeals Nos,106-107 of 1989 Mukhtar Ahmed Junejo, J. (as he then was) has taken the view that the offences under the 1984 Ordinance are triable by the High Court under section 7, while the Sessions Court could only try such offences under section 476(4) in case the Federal Government under the proviso to section 7(1) empowers the Sessions Courts to try such offences through a notification. He has further held that in the absence of such a notification, any cognizance and trial by the Sessions Court would be without jurisdiction.
4. On the other hand, Qaiser Ahmed Hamidi, J. (as he then was) in Crimina l Appeal No,132 of 1989, has disagreed with the judgment of Mukhtar Ahmed Junejo, J., while observing that the proceedings relating to the trial of offences under the 1984 Ordinance are not the proceedings under the Ordinance, but are proceedings under the Cr.P.C., triable by the Sessions Court having the territorial jurisdiction and a notification by the Federal Government in terms of sectio n 7 of the Ordinance is not necessary to confer jurisdiction to the Session Court.
5. The judgment passed by Qaiser Ahmed Hamidi. J., is reported as Abdul Rahim Khan v. The State 1991 MLD 2448 , whereas the judgment authored by Mukhtar Ahmed Junejo, J., appears to be unreported.
6. Before dilating upon the controversy it will be relevant and pertinent to reproduce sections 7 and 476 of the 1984 Ordinance:-- "7. Jurisdiction of the Courts.---(1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered of fice of the company is situate: ' Provided that the Federal Government may, by notification in the official Gazette and subject to such restrictions and conditions as it thinks fit, empower any Civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in that case such Court shall, as regards the jurisdiction so conferred, be the Court in respect of companies having their registered office within the territorial jurisdiction of such Court.
(2) For the purpose of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately proceeding the presentation of the petition for winding-up.
(3) Nothing in this section shall invalidate a proceeding by reason of its being taken in a Court other than the High Court or a Court empowered under subsection (1)."
"476. Punishment and adjudication of fine or penalty .---(1) Where a fine (other than fine in addition to, or in lieu of, imprisonment) is provided for any offence, contravention of, or default in complying with, any provisions of this Ordinance or a directive of the Authority or the Registrar or other authority empowered to issue a directive under the provisions of this Ordinance, it shall be adjudged and imposed:--
(a) Where the maximum fine provided is less than five thousand rupees and the daily fine is less than two hundred rupees, by the of ficer who is inchar ge of the registration of fice in which the company is registered.
(b) Where the maximum fine provided is five thousand rupees or more but less than one hundred thousand rupees and the daily fine is two hundred rupees or more but less than five hundred rupees, by the Registrar who is head of the or ganization for the registration of companies in Pakistan.
(c) Where the maximum fine provided is one hundred thousand rupees or more and the daily fine or penalty is five hundred rupees or more, by the Authority or the officer to whom the Authority has delegated its powers and functions in this behalf.
(2) Notwithstanding anything contained in subsection (1), t'he Authority may, by an order in writing, empower any officer to exercise the powers conferred by the said subsection in respect of any case or class of cases, either to the exclusion, of, or concurrently with, any other of ficer.
(3) The fine as aforesaid shall be imposed after giving the person concerned an opportunity to show cause why he should not be punished for the alleged offence, contravention, default or non-compliance and, if he so requests, after giving him an opportunity of being heard personally or through such person as may be prescribed in this behalf.
(4) Where imprisonment or imprisonment in addition to fine is provided for any contravention of, or default in complying with, any provisions of this Ordinance, it shall be adjudged by a Court not inferior to that of a Court of Sessions."
7. Section 7 of the 1984 Ordinance confers a special jurisdiction upon the High Court under the Ordinance, while reposing power in the Federal Government to confer such jurisdiction, through a notification, on any Civil Court. The key question which requires determination is as to what is the nature and extent of this jurisdiction. A Division Bench of the Lahore High Court in Messrs Sunrise Textile Ltd. And others v. Mashriq Bank PSC and others PLD 1996 Lahor e 1 has held that the jurisdiction exercised by the High Court under section 7 of the 1984 Ordinance i.e. By the Company Judge is in the nature of a summary but original civil jurisdiction conferred by the statute. It B was further observed that this jurisdiction has all the attributes of an original civil jurisdiction (i.e. Summary in nature), which jurisdiction is in contradistinction to criminal jurisdiction. This judgment of the Lahor e High Court has been fully endorsed and cited with approval by a Full Bench of the Honourable Supreme Court comprising 5 learned Judges in Brothe r Steel Mills Ltd. And other v.
Mian Ilyas Miraj and 14 others PLD 1996 SC 543. Writing his appending note and while fully agreeing with the lead judgment/opinion of Saleem Akhtar , J. (as he then was), Fazal Karim, J. (as he then was) has observed that section 7 of the 1984 Ordinance proceeds on the assumption that the jurisdiction of the Court under this section is civil jurisdiction. In coming to this conclusion the learned Judge was awayed by the language of the proviso to section 7(1) which provided that "all or any jurisdiction by this Ordinance conferred may be conferred upon the 'Civil Court'."
8. The judgment of the Honourable Supreme Court in Brother Steel categoricall y confirms that the jurisdiction exercised by the Company Judge under section 7 of the 1984 Ordinance is a jurisdiction of civil nature. In other words any jurisdiction which is not of a civil nature, but is of a criminal nature, even if arises out of the provisions of the 1984 Ordinance shall not be covered by or fall under the said section 7. Admittedly , the offences which are created by the provisions of the 1984 Ordinance including sections 230(7)(a), 245(1)(b) and 245(3) do not create a civil liability; the same essentially create offence of a criminal nature. Section 474 of the 1984 Ordinance lays down the methodo logy for taking cognizance of offences, while section 474(2) through a non-obstante clause overrides the provisions of the Cr.P.C.; section 475 of the 1984 Ordinance further spells out that every offence created by the Ordinance shall be deemed to be non-cognizable, notwithstanding anything contrary contained in the Cr.P.C. All such provisions i.e. Sections 474 and 475 of the Ordinance further confirm that the offences created by the Ordinance are criminal in nature. On this score alone it can be safely held that the provisions of section 7 of the 1984 Ordinance do not extend to trial of offences under the Ordinance. In other words, the jurisdiction conferred upon the High Court under section 7 could not be extended to criminal offences under the Ordinance. Likewise the power of the Federal Government under the proviso to section 7(1) to confer the jurisdiction under section 7 through notification to any Civil Court is also only in respect of civil jurisdiction and not criminal of fences.
9. In our considered opinion section 476 of the 1984 Ordinance provides the forum for trial and adjudication of criminal offences arising under the Ordinance. Section 476(1) and (2) provides for trial of offence by the Authority , Registrar or Officer Inchar ge of registration, whereas section 476 (4) provides for the trial of offences by a Court not inferior to a Court of Sessions for offences which provides for imprisonment or imprisonment in addition to fine.
10. Section 278 of the erstwhile Companies Act. 1913 (i.e. The predecessor of the 1984 Ordinance) and section 622 of the Indian Companies Act, 1956 (presently in force in India) are analogous to section 476 of the 1984 Ordinance in conferring jurisdiction to the Courts to try criminal offences arising under the Company law. It would be pertinent to reproduce the said section 278 of the 1913 Act and section 622 of the 1956 Act (Indian):- - "Section 278 of the Companies Act, 1913. Cognizance of offences.---(1) No Court inferior to that of a Magistrate of the First Class shall try any of fence against this Act."
"Section 622 of the Indian Companies Act, 1956 Jurisdiction to try offences.---No Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any of fence against this Act."
11. Section 278 of the erstwhile 1913 Act was considered by a learned Full Benc h of the Allahabad High Court in Harish Chandra v . Kavindra Naravan Sinha and others AIR 1936 All.
830. In this case the Allahabad High Court held that the High Court under section 3 of the 1913 Act (i.e. Analogous to section 7 of the 1984 Ordinance) was not empowered to try offences arising under the Act, which empower and jurisdiction was only possessed by the Presidency Magistrate/Magistrate under section 278. It is pertinent to note that Qaiser Ahmed Hamidi, J., in his judgment in issue had noted, applied and followed this decision from Allahabad.
12. Section 622 of the 1956 Act was considered by the Mysore High Court in K. Venkata Rao v. State (1966)
36 Company Cases 562 (Mys.). In this case it was held that the trial of offences defined and punished by the Companies Act is not assigned to any Special Court created by the Companies Act but to the ordinary criminal Courts exercising jurisdiction under the Code of Criminal Procedure. Act (V of 1898), subject to the provisions of section 622 which says that no Court inferior to that of a Presidency Magistr ate or a Magistrate of the First Class shall try an of fence under this Act.
13. The above analysis would amply exhibit the following conclusions; (a) sections 7 and 476 of the 1984 Ordinance are distinct and independent and thus section 7 does not control or cover the field falling under section 476; (b) section 7 deals exclusively with the civil jurisdiction whereas section 476 deals with the criminal jurisdiction arising under the 1984 Ordinance; (c) for all matters of civil nature arising or the Civil Court empowered through notification by the Federal Government shall have the jurisdiction i.e. Under section 7; (d) for all matters of criminal nature arising under the 1984 Ordinance, the forum of trial is the one provided under section 476, which would mean that for offences entailing imprisonment or imprisonment, in addition to fine, the Sessions Court under section 476 (4) having the territorial jurisdiction shall be the Court competent to try the criminal offence; (e) the power of the Federal Government to confer the jurisdiction of the Company .
Judge under the proviso to section 7(1) of the 1984 Ordinance has no nexus with competence of the Sessions Court to try of fences under section 476 (4).
14. In substance and conclusion we are of the view that the judgment of Qaiser Ahmed Hamidi, J. (as he then was) in Criminal Appeal No,132 of 1989 dated 18-8-1991 reported as Abdul Rahim Khan v. The State 1991 MLD 2448 is the correct statement and pronouncement of law. With due respect we have disagreed with the judgment of Mukhtar Ahmed Junejo, J. In Criminal Appeals Nos,106- 107 of 1989.
15. The office is now directed to place the individual cases before the learned Single Judge (s) to be decided on merits and in terms of this D.B.'s verdict on the point of jurisdiction as above.