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Petitioner: STATE BANK OF PAKISTAN, KARACHI VS Respondent: WASIUDDIN AHMAD
Court Name: Sindh High Court Judge(s): Durab Patel, Tufail Ali A. Rehman Title: STATE BANK OF PAKISTAN, KARACHI vs WASIUDDIN AHMAD Case No.: Criminal Appeals Nos. 187 and 216 of 1971 Date of Judgment:1973-10-05 Reported As: 1975 P Cr. L J 707 Result: Appeal dismissed
JUDGMENT
JUDGMENT TUFAIL ALI A. REHMAN, C. J.-----These are two appeals directed against the order of the Tribunal constituted under the Foreign Exchange Regulation Act in two different cases against the same accused person who is the respondent in each of them whereby the Tribunal discharged him. In terms it is to be noted that the order purports to be an order of discharge and not a judgment of acquittal and it is indeed an admitted position that no charge had yet been framed in this case. When these cases came up for hearing, although no objection was taken by the learned counsel for respon--dent as to the maintainability of the appeals, my learned brother and I, being doubtful whether an appeal lay invited argument upon that point from learned counsel on both sides and at their request adjourned the case for some time to enable them to study the question. In due course the matter came up before us again and we have heard learned counsel fully upon this question and, desiring to reserve our own decision in order to enable us to consider the matter fully, informed counsel that, should we come to the conclusion that the appeal were maintainable, we would direct their being re-listed for hearing on merits and otherwise would announce judgment. 2. It is obviously unnecessary to state the facts of the case as we are now not considering the merits and it will suffice to say that the prosecution led before the Tribunal all the evidence it had and the Tribunal then decided not to frame a charge but terminated the proceedings by what is expressly headed an "order of discharge". There is also on record a number of notes of written argument and it is some indication of how things proceeded before the Tribunal that the written arguments on behalf of the defence and with a statement of the contention that there is no sufficient evidence of framing a charge while those on behalf of the prosecution similarly end with the conclusion that there is enough evidence for the framing of a charge. The Tribunal also itself
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ends order by saying, "I am, therefore of the clear view that the prosecution has not made out any case against the accused which could warrant the framing of a charge under section 12(1)/23 of the F. E. R. Act. I, therefore, discharge the accused under section 253, Cr. P. C." The memorandum of appeal filed in this Court also in its first paragraph asks that the said order of discharge be set aside though it adds that the respondent be convicted and ends with the prayer that the judgment passed by the lower Court be set aside. Although these are not of course not conclusive matters they indicate clearly at least that both in the minds of counsel and the Tribunal there was a distinction between an order of discharge and a judgment of acquittal, considerations which are relevant to the question of the maintainability of this appeal which will turn mainly upon the question whether the order complained of amounts to a judgment. 3. It would be convenient to set out the provisions of section 23(A) of the Foreign Exchange Regulation Act, although for my immediate purpose only subsections (6) and (7) are important:--- "23-A. Tribunal its power etc---(1) Every Sessions judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under section 23. (2) A Tribunal may transfer any case for trial to an Additional Sessions Judge within its jurisdiction who shall, for trying a case so transferred be deemed to be a Tribunal constituted for the purpose. (3) A Tribunal shall have all the power, of a Magistrate of the First Class in relation to criminal trial and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trials before such Magistrate, and shall also have power as --provided in the said Code in respect of the following matter namely :-- (a) directing the arrest of the accused ; (b) issuing search warrants ; (c) ordering the police to investigate any offence and report ; (d) authorising detention of a person during police investigation ; (e) ordering the release of the accused on bail. (4) All proceedings before a Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 293 and 228 of the Pakistan Penal Code, and for the purposes of section 196 thereof, and the provisions relating to the execution of orders and sentences in the Code of Criminal Procedure, 1898, shall, so far as may be apply to orders and sentences passed by a Tribunal. (5) As regards sentences of fine, the powers of a Tribunal shall be as extensive as those of a Court of Sessions. (6) The State Bank of Pakistan or any other person aggrieved by a judgment of a Tribunal may, within three months from the date of the judgment, appeal to the High Court. (7) Save as provided in the preceding subsection, ail judgment and orders passed by a Tribunal shall be final." It will be noticed that subsection (6) confers a right of appeal against a judgment of the Tribunal and that subsection (7) provides that till judg--ments and orders" passed by the Tribunal are to be final save as is provided for in the preceding subsection, that is to say subsection (6). Clearly there--fore unless the order complained of is a judgment within the meaning of this section an appeal notes not lie. Now in a general way a judgment might be defined as being the judicial adjudication by a competent Court of a controversy before it which, at least so far as itself is concerned, finally determines the matter. If that be the correct meaning, then of course learned counsel for the appellant would be right inasmuch as the Tribunal has finally decided tire matter and that therefore an appeal would lie against this judgment, if the terms may now without further implication be used, by reason of subsection (6). Regard however being had to various statutes in which the word is used and in some of which it is defined it is not possible I think in law to give it, necessarily and. In all contexts, so wide a meaning. It is, therefore, our duty to determine what the
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word means as used in section 23-A of the Foreign Exchange Regulation Act. Now it is to be noted that under this section all Sessions Judges are ex officio Tribunal Linder the Act as also are such Additional Sessions Judges as receive a case by transfer under subsection (2) of the section. Nevertheless it does not follow that tire Tribunal is for the purposes of procedure or even powers a Sessions Court. The procedure for the trial of all offences is laid down in section 5 of the Criminal Procedure Code which reads as follows :-- "5.-(1) All offences, under the Pakistan Penal Code shall be investi--gated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences." If the Act itself, therefore, was silent upon the question the offences would have to be tried by a Magistrate and by a Cessions Court only if such Magistrate in accordance with provisions of the Code, committed the case to a Court of Session. It would of course under section 5(2) of the Code be competent to the Legislature by enactment to provide for the pro--cedure of dealing with such offences and, to the extent that it did, the Code would have to yield. By statute the Legislature could have excluded the Code altogether but in fact in express terms subsection (3) of section 23-A of the Act not only confers upon the Tribunal all the powers of a Magistrate of the First Class in relation to criminal trials but directs the Tribunal to follow "as nearly as may be the procedure provided in the Code of the Criminal Procedure, 1898 for trials before such Magistrates". In the mater of punishment it is to be noticed that subsection (5) enhances the powers of a Tribunal to impose a fine to a level as extensive as those of a Court of Session; both by the reason of the fact that Code will apply unless expressly excluded and also by reason of the clear implication consequent upon the omission to provide for other sentences and the reference in subsection (3) to the powers of a Magistrate, the powers of the Tribunal for the purposes of punishment must be those of a Magistrate. In effect therefore it comes to this that the Tribunal is being directed to follow the procedure which a Magistrate would have followed under the Code and since the power of discharging an accused person and of giving final judg--ment in a trial is mentioned in that Code I do not think that any further argument is necessary for establishing the proposition that the word "judgment" must be understood in the same sense as it is used in the Code. This conclusion I think arises from necessary implication but even explicit in the section is some distinction between a judgment and an order for while an appeal is provided against the former under subsection (6), subsection (7) gives finality not only to judgments but orders also. Unless therefore, the Legislature contemplated that there could be orders of the Tribunal which did not amount to judgments the language of these two subsections would have been different. Nothing could have been easier than to have provided for appeals not only against judgments but also against orders or possibly generally against decisions under subsection (6) and then to have provided in subsection (7) that save as provided for in the preceding subsection all decisions passed by a Tribunal should be final. The Act itself, while it does make a clear distinction between judgments and orders, defines neither and that only fortifies me in the conclusion that the word `judgment' must be understood in the same sense as it is used in the Criminal Procedure Code. 4. Now in contrast to the Code of Civil Procedure, the Code of Criminal Procedure does not define the word `judgment'. A judgment is defined in the Civil Procedure Code section 2(9) as "the statement given by the Judge of the grounds of a decree or order." The decree in turn is defined in subsection (2) of the same section as follows:--- "`decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determine, the right of the parties with regard to all or any of the matters
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in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order or (b) any order of dismissal for default." An order on the other hand under subsection (14) is defined negatively as the formal expression of any decision of a civil Court which is not a decree. Except for the fact, therefore, that the word "judgment" in statutory law can neither be defined so extensively as I have earlier said that in a general way it can, nor can it necessarily has the same meaning in every context, the definitions given in the Civil Procedure Code are of no real assistance. 5. The meaning of the word judgment in criminal law has been can--vassed in a number of cases in different contexts and to some of these cases I shall presently refer but at the outset must state that neither was any case cited at the bar as to its meaning under section 23-A of the Foreign Exchange Regulation Act nor has arsy study on my own part been able to discover any such case. The meaning of the word as used in the Govern--ment of India Act, 1935 before Independence and, therefore, before the enlargement of the jurisdiction of the Federal Court at the time when the Judicial Committee of the Privy Council was still the final Court of Appeal for this sub-continent was considered In the case of Horiram Singh v. The Emperor (AIR 1939 FC 43). The question was considered in some detail by Sir Shah Sullaiman but in order to appreciate in what context he was examining it is necessary briefly to state how the question arose. Under the Government of India Act, 1935 as it then stood an appeal lay under certain conditions under section 205(1) from "any judgment, decree or final order". The appellant was found guilty by a Magistrate but the conviction as set aside by a Sessions Judge upon the ground that the proceedings were without jurisdiction. The Crown appealed to the High Court which set aside the order and returned the record to the Sessions Court for disposal of the appeal on merits, Against this decision of the High Court the appellant appealed to the Federal Court and the question therefore arose whether the appeal before the Federal Court was competent. The real question, therefore, before their Lordships of the Federal Court was whether under the limited powers of appeal conferred upon that Court by the Government of India Act they had jurisdiction to hear a criminal appeal at all. Learned and interesting as the discussion of his Lordship is I do not propose to quote it in full but content myself by reproducing the following passage which appears at pages 47 and 48 of the Report:-- "In view of the observation, made by their Lordships of the Privy Council, the word `judgment' cannot now be taken in its widest possible sense so as to include ever: order which terminates a pro-- ceeding pending in a High Court so far as chat Court is concerned. In criminal cases the position is still stronger. In England judgment is equivalent to a judgment of conviction or acquittal and is distinct from other orders in a criminal case. This will appear from an examination of paragraphs 260.4 in Vol. 9, Halsbury's Laws of England (Hailsham Edition). In the Indian Code of Criminal Procedure, judg--ment is not defined, but various sections suggest what it means, sec--tions 404 and 415-A no doubt refer to appeal from judgment or appeal able judgment respectively. But under sections 263 and 264 the judg--ment in a summary trial has to contain the finding and sentence or other final order. Under section 3135, in a jury trial the order of conviction or acquittal in accordance with the opinion of the jury is the judgment. Under section 309, in a case tried with assessors, the final order which is followed by the sentence, is the judgment. Section 367 suggests what the contents of a judgment should be, and what it should comprise of when it be a judgment of conviction and what if it be a judgment of acquittal. Section 370 also requires a record of the offence complained of or proved, the plea of the accused and the final order. As final orders like those under sections 144 and 145 could not be judgments, a special provision has been made in section 367(6) that certain orders should be deemed to be a judgment. The Code provides
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appeals from certain appeal able orders, and section 423 provides appeals from conviction and sentence. Thus, judgment in the Code means a judgment of conviction or acquittal." Of high authority as the case is I should have been content to base my judgment upon this one case alone but I am conscious that the word `judgment', not being defined in the Code, the observations of his Lordship must be read primarily in the context of the question that he was then deciding and think it better to examine the question further though of course, the case is binding upon me and I am, in any event, greatly influenced by the weighty reasoning that I have quoted. 6. The learned Chief Justice, Sir Maurice Gwyer, in a very short concurring judgment merely observed that the word judgment, decree or final order," ought to receive no narrow interpretation while Varadacharir, J. Held merely that the word judgment as used in the Government of India Act was comprehensive enough to include a judgment pronounced in a criminal case. His Lordship did not go into the question as to what the meaning of that word in the Criminal Procedure Code itself was. 7. Although the Criminal Procedure Code does not define the word "judgment" it does in fact make use of it in several sections and of these may be mentioned sections 366, 367, 369, 371, 372. Each of these sections however takes the meaning of the word 'judgment', as it were, for granted. Section 36 for example says how the judgment is to be delivered and section 367 provides for the contents of a judgment. Section 369 provides against the alteration of a judgment and sections 371 and 372 merely refer to such matters as the grant of a copy to the accused and translation. Chapter XXXI of the Code which provides for appeal does not use the expression in any of the sections which confer a right of appeal all of which are couched in the language of granting such a right to a person who has been convicted or against whom an order has been passed and even section 417 which confers a right of an appeal against acquittal upon the Provincial Government refers to "an original or appellate order of acquittal". In this Chapter the word "judgment" has been used only in sections 404, 424, 429 and 430. The first of these sections provides only that no appeal shall lie from any judgment or order except as provided for by the Code or by any other la for the time being in force. Section 424 extends the rules applicable t judgments of a Criminal Court of original jurisdiction so far as may be prac--ticable to the judgment of any Appellate Court other than the High Court. Section 429 talks of the procedure applicable when there is a division o opinion between the Judges composing the Court of Appeal and then provide that another Judge shall hear the matter, deliver his opinion and the judg--ment or order will follow such opinion. Lastly section 430 confere finality upon judgments except as provided for in section 417 and Chapter XXXII, A the former of which permits acquittal judgments to be challenged while the latter provides for references and revisions. 8. Although, therefore, the word judgment is not defined in the Code it does clearly contemplate a distinction between a judgment and an order and the fact that the revisional process is applicable to the judgments and orders of Courts subordinate to the High Court shows that the two are being treated differently. It is also noteworthy that some power of revision is conferred even upon a Court lower than the High Court namely, the Court of Sessions and equally noteworthy is the fact that, while the revisional power of a High Court is very wide indeed, interference with acquittals by means of revision is not permissible to the same extent as it would be by means of an appeal under section 417 of the Code. 9. It would be appropriate now to consider the procedure laid down in the Code of Criminal Procedure for the trial of offences generally and, therefore, by reference, of offences under the Foreign Exchange Regulation Act. Under the Code a different procedure is prescribed, so far as trial before Magistrates are concerned, for warrant cases and summons cases. Summons cases are provided for in Chapter XX (Sections 241 to 250) and warrant cases in Chapter XXI (Sections 251 to 259). While I shall presently refer in a little greater detail to the procedure prescribed for warrant
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trials. So far as summons cases are concerned it is worth noticing only that there is no stage in the trial of a summons case where, after the evidence or part of it led by the prosecution has been recorded, a formal charge is framed. Indeed the proceedings in a summons case begin by the statement of a substance of accusation which is equated with what is properly described as a charge in warrant cases; in its very nature therefore there cannot be in a summons case any such thing as an order of discharge and all cases must end either with an acquittal or with a conviction. As against this there the more elaborate procedure described for the trial of warrant offences might pause here to point out that there can be no question but that trials for offences under the Foreign Exchange Regulation Act must be warrant trials. A warrant case is defined in section 4(W) as "a case relating to at, offence punishable with death, transportation or imprisonment for a term exceeding 6 months" while the preceding clause in the same section defines a summons case as one relating to an offence and not being a warrant case. The penal provision in the Foreign Exchange Regulation Act is section 23 and among other things it provides, for a contravention, or an attempt to contravene, or an abetment of the contravention of any of the provisions of the Act or of any rule, direction or order made thereunder, a sentence of imprisonment which may be extend to two years or with fine or with both; clearly therefore such an offence would be a warrant case within the meaning of the Code. In Chapter XXVI the first section, namely, section 251 merely states that the procedure hereinafter laid down shall be observed by Magistrates in the trial of warrant cases. The next section provides that the Magistrates shall then hear the complainant if any and take all such evidence as may be produced in support of the prosecution and also such other evidence as the Magistrate shall ascertain, from the complainant or otherwise, as being the evidence of witnesses likely to be acquainted with the facts of the case and able to give evidence for the prosecution. It is after all this evidence is taken that under section 253 the Magistrate may discharge the accused though nothing in that section is to prevent the earlier discharge of the accused if the Magistrate considers the charge to be groundless. It true that section 253 in this latter provision does use the word 'charge' but clearly it is not using the word in any technical sense as being a formal expression of a statement of the offence as is described in section 221 or in the entire Chapter (XXI) of which that section is a part. Nor in section 253 is the expression being employed to designate a written framed charge which the immediately succeeding section authorises and requires. The charge then having been framed under section 254 a plea has to be taken and formally recorded after which, if it is not a plea of guilty, the accused is then required to state whether he wishes to cross-examine any of the prosecution witnesses who have already been examined and after their cross-examination and re-examination if any he is required to enter upon his defence. It I when all this is over that section 258 both requires and authorises the Magistrate to record a finding that the accused is guilty or not guilty and in the former case to pass sentence upon him and in the latter to acquit him. It is to be noticed that in none of these sections is the word 'judgment' used but in any case it is true that the procedure so meticulously laid down clearly draws a distinction on the one hand between a discharge which justified only when the prosecution are not able to make out a case at all and a subsequent conviction or acquittal which depends upon a more thorough examination of all that has been led by way of evidence for and against the accused. It is true of course that all the three processes, namely, discharge, acquittal and conviction finally terminate the case so far as the Court of the Magistrate is concerned but that a distinction is contemplated between an acquittal and a discharge, admits of no doubt whatever. 10. It is true of course that section 256 of the Criminal Procedure Code has been amended so far as West Pakistan is concerned, by the West Pakistan Amending Act, XVII of 1964 which in effect takes away the right of the accused to demand that the witnesses for the prosecution examined before the charge be re-summoned for cross examination. This, however, makes no essential difference to
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what I have already stated inasmuch as, before the amending Act as now, it is not necessarily the entire prosecution evidence which is taken before the charge and so much of it as justifies the framing of a charge alone is necessary; before as well as after the amendment the prosecution still has a right of examining further evidence after the charge and an acquittal takes place then and now only after the entire prosecution evidence is over and the accused has also been given an opportunity of leading any defence evidence. Beside this it is also to be remembered that the amending Act is one of…
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