1979 P Cr. L J 1039
1979 P Cr. L J 1039
[Lahore]
Before Muhammad Amin Butt, J
THE STATE-Petitioner
Versus
ADDITIONAL SESSIONS JUDGE, LAHORE AND ANOTHER-Respondents
Writ Petition No. 4901 of 1.978, decided on 11th July, 1979.
(a) Evidence Act (I of 1872)-
-- S. 78 read with S. 57-Proof of official documents-Case pertaining to domain of amendment of "laws of Pakistan" and not to performance of an act or exercise of power conferred by under any law-Held, provisions of S. 78 do not apply to such case.
Collector, Cawnpore v. Jugal Kishore A I R 1928 All. 355; Moti Lal Nehru v. Emperor A I R 1931 All. 12; Puranmal v. Emperor A I R 1946 Pat. 76; Public Prosecutor v. Thippayya A I R 1919 Mad. 459 and Brahmeshwar Prasad v. State of Bihar A I R 1950 Pat. 265 not relevant.
(b) Constitution of Pakistan (1973)--
--- Art. 199-Writ petition-Laches-Definition-Person seeking remedy not committing such a delay as would cause prejudice to other side or would amount to waiver or acquiescence on his part---Held, technical plea of laches, by itself would not be sufficient to bar remedy in such case-Question of laches to be examined by Court in context of facts and circumstances of each case having regard to conduct of parties-Limitation Act (IX of 1908).[Laches].
Laches has often teen defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself, would not be sufficient to bar the remedy.
In fact, unlike the fixed period of limitation prescribed by the pro visions of the Limitation Act, 1908, the question of laches has to be examined by the Court in the context of the facts and circumstances of each case having due regard to the conduct of the parties.
Pakistan v. Abdul Hamid P L D 1961 S C 105; Manzur Ahmad v. Province of West Pakistan P L D 1961 S C 166; Mohsan Khan v. Chief Settlement Commissioner 1969 S C M R 306; Baqir Hussain v. Yatim BIN 1978 S C M R 295; Miraj-ud-Din v. Senior Superintendent of Police P L D 1970 Lah. 569; Muhammad Wazir v. Jahangirimal A I R 1949 Lah. 72; Habibullah Khan and others v. Qazi Muhammad Ishaq and others P L D 1966 S C 505; Mst. Noor Jehan Begum v. Abdul Majid Shaida and another Law Notes 1967 (NUC) S C 15; Lindsay Petroleum Company v. Hard 1874 L R 5 P C 221 and Dalton v. Angus (1887) 6 A C 740 ref.
Province of Punjab v. Abdul Aziz 1976 S C M R 294 and S. Muhammad Din & Sons Ltd. v. Sales Tax Officer P L D 1977 Lah. 1225 distinguished.
(c) Imports and Exports (Control) Act (XXXIX of 1950)--
--- Ss. 3 & 5 and Penal Code (XLV of 1860), Ss. 420, 468 & 471-Accused alleged (i) to have imported goods in contravention of restrictions under S. 3 of Act by resorting to forgery and interpolation of documents and changing description of goods he was entitled to import under licence; (ii) to have, thereby, defrauded State of licence fee, and (iii) to have drawn foreign exchange for purpose not authorised by licence issued to him---Prosecution of accused for offence under S. 3 of Act-Held, cannot absolve him of liability to prosecution in relation to offences under Ss. 420, 468 & 471, P. P. C.-Criminal Procedure Code (V of 1898), S. 403.
In the present case, the accused was alleged to have imported goods in contravention of the restrictions imposed by or under section 3 of the Imports and Exports (Control) Act, 1950. It was not the prosecution case that he imported the goods without the authority of a valid licence. He was alleged to have resorted to forgery and interpolation in the documents issued to him by the Chief Controller of Imports and Exports by changing the descriptions of goods he was entitled to import under the licence issued to him. He was alleged to have thereby defrauded the State of certain licence fee by altering the period specified in relation to establishment of letters of credit and drew foreign exchange for a purpose not authorised by the licence issued to him.
It was contended on behalf of the accused that the offences under the Imports and Exports (Control) Act, 1950 were triable only under and an accordance with the requirement of the Act, and it was not open to the State to prosecute a citizen under the provisions of the general law. According to him, the provisions of sections 420, 468 and 471, P. P. C. could not be invoked against the accused, as these offences are mere surpulsage.
Held, while an offence under the Imports and Exports Act may be punishable in the manner laid down by the provisions of section 5(b) of the Imports and Exports (Control) Act, 1950 there is nothing in that Act or the authorities cited on behalf of accused to show that his prosecution under the Imports and Exports (Control) Act, 1950 would absolve the accused of the liability to prosecution in relation to offences under sections 420, 468 and 471, P. P. C. it is open to the State to proceed against him both for the violation of the Import and Export (Control) Act, 1950 and also to launch criminal prosecution against the respondent in respect of offences allegedly committed by him under section 420, 468 and 471, P. P. C.
State v. Hamtho 1971 S C M R 686 and Abdul Sattar v. State 1975 P Cr. L J 1137 distinguished.
(d) Criminal Procedure Code (V of 1898)-
-- S. 439 read with Imports and Exports (Control) Act (XXXIX of 1950), Ss. 3 & 5 and Penal Code (XLV of 1860), Ss. 420, 468 & 471-Revision-Quashment of proceedings-Accused challaned for offences of resorting to forgery of and interpolation in import licences-Civil suit filed by accused against cancellation of registration by Chief Controller of Imports and Exports covering only one of 14 licences subject of criminal prosecutions-No evidence yet led by either side in criminal prosecution before criminal Court-Order of Sessions Judge under S. 439, Cr. P. C. quashing challans lodged by State in respect of such offences---Held, without lawful authority, in circumstances of case, and set aside--Constitution of Pakistan (1973), Art. 199.-[Revision (criminal)].
Naseer Begum v. State 1972 S C M R 584; Muhammad Ahmad v. State 1972 S C M R 85 and Muhammad Akbar v. State P L D 1968 S C 281 ref.
Zia Mahmood Mirza for Petitioner.
Nemo for Respondent No. 1.
S. M. Zaffar, Ch. Ijaz Ahmad, Abid Hussain and Hamayun Shafi for Respondent No. 2.
Dates of hearing: 14th, 17th, 20th, 25th, 26th March ; 2nd, 7th and 11th April 1979.
JUDGMENT
The State acting through the Deputy Director, F. I. A., Lahore has instituted this petition to have the order dated 16th January, 1978 passed by the learned Additional Sessions Judge, Lahore, respondent No. 1, declared to be without lawful authority and of no legal effect and consequent quashment of that order.
2. The brief facts of \'the case are that Messrs National Electric Company of Pakistan, Gujranwala and Messrs Super Electric Industries Ltd., Gujranwala, of which Inamul Haq Bhatti, respondent No. 2, was, the Managing Partner, were engaged in the business of manufacture of electric transformers. The raw material for manufacture of transformers are imported from abroad. The two businesses were duly registered with the Controller of Imports and Exports under the provisions of the Imports and Exports (Control) Act, 1950 as industrial importers.
3. According to the import policy issued by the Federal Government under the provisions of subsection (1) of section 3 of the Imports and Exports (Contr9l) Act, 1950, the respondent No. 2 was eligible for grant of licences for import of electric alloy and high carbon steel sheets, plastic moulding compound etc. and licences for imports of such material were allegedly issued to him by the Controller. From the exchange control copy of the import licences submitted by respondent No. 2 for purposes of establishing letters of credit for import of material it came to the knowledge of the Controller of Imports and Exports that the respondent No. 2 had established the letters of credit for items other than those for which licences were issued by the Controller of Imports and Exports. On scrutiny he found that in as many as 14 cases where letters of credit bad been opened, the items for which the licences were actually issued had been altered to enable the importers to import materials other than those for which licences were issued. On 15th April, 1977 the Chief Controller of Imports and Exports authorised the Deputy Director office of the Director General Federal Investigation Agency, Islamabad to file a complaint in a Court not inferior to that of a Magistrate; First Class against Messrs National Electric Company of Pakistan Gujranwala, for changing fraudulently the descriptions of import licence No. 410379 dated 5th March, 1976 issued for a sum of rupees six lacs against Serial No. 129(S) of the Import Policy Order, 1975, from "Electric alloy and high carbon steel sheets" to 'components for assembly manufacture of capital goods including starters, ball bearings and capacitors -,alongwith change of I. T. C. numbers given against serial No. 323 of the said Import Policy. It appears that later the following F. I. Rs. were lodged in respect of various licences for the forgeries, etc. mentioned against each.
S. No. Cases Item for which licence was actually issued Description as allegedly altered by the accused
1 2 3 4
1 FIR No. 6 dated 1-1-77 under section 420/468/ 471, P. P. C. & S. 5 of Imports and Exports Act in respect of licence No. 410379, dated 5-3-76 for Rs. 6,00,000. S. No. 129(C)-Part A Electrical Alloy and High Carbon Steel Sheets. I. T. C. Nos. 73-131.1, 73-15 IX. (A) S. No. 323-Part B components for assembly/ manufacture of capital goods, including starters, ball bearings and capacitors.
(B) (Description of items forged as such does nor occur anywhere in the relevant policy order).
2 FIR No. 86 dated18-6-77 under sections 420/468/ 471, P. P. C. & Sec. of Imports and Exports Act, in respect of licence No. 632850. dated 21-6-76 for Rs. 5,90,000. S. 220-Part A Plastic Moulding Compound. 5 ITC. Nos. 39-01 II. 39-02 II, 39-03 II, 39-04 II.39-05 II, 39-06, II, (A) S. No. 323-Part B components for assembly /manufacture of electric motors including starters, ball bearings.
(B) D o
3 F. I. R. No. 88.
Do
in respect of licence No. 622876 dated 15-6-76 for Rs. 4,90,000 S. 220-Part A Plastic Monlding Compound ITC. Nos. 39-03 II, 39-02 II,39-05 II, 39-04, II, 39-05 II, 290611 (A) S. 223-Part B components for assembly /manufacture of a electric motors including starters, ball bearings.
(B)
4 F. I. R. No. 89
Do
in respect of licence No. 654010, dated 21-6-76 for Rs. 5,90,000 and 654011 dt: 21-6-76 for Rs. 5,90,000.
Do
(A) Do
(B)
5 F.I.R. No. dt. 18-6-66
Do
in respect of licence No. 654012, dt. 15-6-76 for Rs. 5,90,000.
Do
(A) Do
6 F. I. R. No. 92
Do
in respect of licence No. 632846 dt. 29-5-76 for Rs. 4, 50,000
Do
(A)
(B)
7 F. I. R. No. 93 dated
18-6-77 under section
420/468/471, P. P. C
& Sec. 5 of Imports &
Exports Act in respect
of licence No. 410318
dt : 2-9-76 for
Rs. 3,00,000. S. No. 323-Part B
components for assembly /manufacture of capital goods excluding items specified in Part I of Annex. XII (respective numbers) (A)S. No. 323-Part B components for Assembly /manufacture of capital goods
including starters, bail roller and taper bearings and capacitors.
(B) Description of item forged as such does not occur anywhere in the relevant Import Policy Order.
8 F. I. R. No. 94 dt :
18-6-77 in respect of licence No. 631594, dt : 28-1-76 for Rs. 3,56,000. Prescribed period for opening L.C. 30 days as per para. 12 (3) of Import Policy Order. L. C. Not opened and date of licence changed with a view to extending validity period upto
9-3-76.
9 F.I.R No. 95 dt. 18-6-77 under section
420/468/471, P.P C. &
S. 5 of Imports and Exports Act in respect
of licence No. 653490
dt. 7-8-76 for Rs. 6,00,000. S. No. 129(C) of Part A. Electrical Alloy & high carbon steel sheets. ITC No. 73-13 II, 73-15 IX. (A) S. No. 129(C) and (a) Part A Electric Alloy & high carbon steel sheets and Alloy steel strips including electric carbon and alloy steel strips.
(B) After authorised items the words Alloy steel strips including electric carbon and alloy steel strips" have been added but the words "excluding steel strips for G.I. Pipes and tubes and black pipes and tubes" which are given against S. No. 129 (C) of Import Policy Order have been omitted.
10 F. I. R. No. 96 Do in respect of licence No. 741604 dt: 18-5-76 for Rs. 5,60,000.
Do
(A) Do
(B)
11 F.I.R. No. 97 dt. 18-6-77 under sections 4201468/ 471. P. P C. and Sec. 5 of Imports & Exports Act, in respect of licence No. 631633 dt.
18-5-76 for Rs. 4,00,000. S. No. 129(C)-Part A Electrical alloy and high carbon steel sheets.
I. T. C. Nos. 73-13 II, 73-15IX. (A) 1. Period of LC changed to 10-7-76 so as to extend period of validity of licence.
2. The word Commercial' changed into 'Industrial'
3. After authorised items the word "Alloy steel is including rip electric carbon and alloy steel 129(C) and (A).
12 F.I.R. No 98 dt. Do
in respect of licence No. 632848 dated 31-5-76 for Rs. 2,95,000. S. No. 220 Part A Plastic
moulding compound. 39-01. II 39-02.II 39-03. II, 39-04. II 39-05. 11, 39-06. II S. No. 320-B--Part 13 ball roller and taper bearings including bearings of notified specifications. ITC No. 84-62.
13 F.I.R. No. 99 Do in respect of fence No. 632847 dated 31-5-76 for Rs. 2,50,000.
Do
Do
14 F.I.R. No. 100 Do
in respect of licence No. 632872, dated 25-6-76 for Rs. 90,000 and 14743, dt: 18-5-76 for Rs. 2,32,000.
Do 1. Word 'Commercial' was changed into Industrial'.
2. Changed period of licence
and 11-7-76 so as to extend validity of licence.
4. The Federal Investigation Agency, Lahore, with whom 14 cases were registered, after necessary investigation, put in 14 challans against respondent No. 2 under sections 420, 468 and 471, P. P. C. On receipt of the challans the trial Court summoned the respondent as an accused in alt the 14 cases whereupon he filed a criminal revision under section 435 read with section 439-A, Cr. P. C. in the Court of the Sessions Judge Lahore, which was entrusted to Mr. Ayub Hassan, Addl. Sessions Judge, Lahore, who after hearing the counsel for the accused and the A. P. P. on behalf of the State quashed the proceedings pending before the trial Magistrate against respondent No. 2 in all the 14 cases. Feeling aggrieved by the decision of the learned Addl. Sessions Judge, the State has come up with the present writ petition.
5. Before me Mr. S. M. Zafar, the learned counsel for the respondent No. 2 raised a number of preliminary objections to the maintainability of the present writ petition. He contended that the F. I. A. was not competent to investigate the case as the subject did not fall within the purview of the schedule to the Federal Investigation Agency Act, 1974. The argument proceeded on the assumption that no notification had been issued by the Federal Government under the provisions of section 6 of the Federal Investigation Agency Act, 1974. However, in the course of arguments Mr. Zia Mahmud Mirza the learned counsel for the petitioner produced a copy of Notification No. SKO-539(1)/76 dated 2-6-1976 published in the Extra Ordinary Gazette of Pakistan dated 7-6-1976 which showed that the schedule to the Federal Investigation Agency Act, 1974, had been amended to add item 24 which read as under :-
26. Offences punishable under the Imports acid Exports (Control) Act, 1950 (XXXIX of 1950)."
6. Faced with the situation, the lear.,44 counsel for respondent No. 2 took up the stand that the notification having not been produced before the learned Addl. Sessions Judge, it was not open to the petitioner to rely upon it before this Court. The argument was not based upon an interpretation of the provisions of section 78 of the Evidence Act, 1872 which enjoins that acts, orders or notifications of the Central Government in any of its Departments could only be proved by producing the record of the department, certified by the head of those departments or by any document purporting to be printed by orders of any such Government. In support of his view the learned counsel relied on Collector, Cawnpore v. Jugal Kishore (A I R 1928 All. 355), Moti Lal Nehru v. Emperor (A I R 1931 All. 12), Puranmal v. Emperor (A I R 1946 Pat. 76), Public Prosecutor v. Thippayya (A I R 1949 Mad. 459), Brahmeshwar Parshad v. State of Bihar (A I R 1950 Pat. 265).
7. In all the cases relied upon by the learned counsel the omission of the party to produce the notification before the trial Court for one reason or the other was considered fatal to the proceedings and it was held that the requirements of section 78 of the Evidence Act were not complied with. All the cases related to the exercise of powers by the Federal Government under the law and no case was cited before me where the notification had the effect of making textual changes in the enactment itself. Thus, while the learned counsel for the respondent does not dispute that the schedule to the Federal Investigation Agency Act, 1974 stands lawfully amended by insertion of item 26 in relation to offences under the Imports and Exports Act, he still claims that the failure of the petitioner to produce the notification was fatal to his case.
8. I regret my inability to agree with the learned counsel for the respondent. The moment it is conceded that the Federal Investigation Agency Act, 1974 was duly amended by the introduction of item 26 in the schedule, which in point of fact was done by notification No. SRO. 539(1)/76 dated the 2nd of June, 1976 the Court would be entitled, rather obliged to take judicial notice of such alteration of law in view of the requirements of section 57 of the Evidence Act. In fact, the learned counsel for the respondent has not been able to satisfy me how expression "laws" of Pakistan appearing in subsection (1) of section 57 of the Evidence Act of which every Court is required to take judicial notice shall be referable to the original text of the law and not to its amendments or modifications made in accordance with law.
9. Having given the matter my serious consideration I am of the view that the provisions of section 78 would have no application to the present case which pertains to the domain of amendment of the "laws of Pakistan" and not to the performance of an act or the exercise of any, power conferred by or under any law which may fall within the purview of section 78 of the Evidence Act. In this view of the matter I hold that the F. 1. A. was entitled to investigate the case registered with it in, relation to offences under the provisions of the Imports and Exports Act, 1950. It may be explained here that the learned counsel for the respondent did not dispute the proposition that the F. I. A. was entitled to investigate the offences under sections 420, 468 and 471, P. P. C.
10. The next objection taken by the learned counsel for the respondent was that the learned Additional Sessions Judge passed the impugned order on 16th January, 1978 and that the present writ petition instituted on 10th October, 1978 suffers from laches and must for that reason be dismissed.
10-A. The learned counsel for the petitioner has drawn my attention to the order of the learned Additional Sessions Judge dated 16th January, 1978 to contend that the case was argued by the A. P. P. on behalf of the State and the F. I. A. was not represented before the trial Court. He asserts that the: order of the learned Additional Sessions Judge came to the notice of the Controller of Imports and Exports from the letter dated 22nd February, 1978 addressed by respondent No. 2 to him. The Controller of Imports and Exports by his Letter No. GR-II/IQ (2)/76/,35/ 451, dated 9th March, 1978 informed the Deputy Director F. I. A., Lahore about the decision taken by the learned Additional Sessions Jude. The learned counsel for the petitioner presented an affidavit sworn by Mian Ajmal Waheed, Assistant Director (Legal) F. I. A. which shows that the F. I. A. which was the prosecuting agency and whose jurisdiction was challenged before the learned Additional Sessions Judge did not receive any notice of the hearing of the revision petition. It is deposed that as soon as the F. I. A. came to know of the orders passed by the learned Addl. Sessions Judge, they made a proposal for challenging the orders in the High Court. The proposal together with the draft grounds of revision prepared by the F. I. A were sent to the higher authorities on 11th April, 1978. On 21st May, 1978 the Government of Pakistan, Ministry of Interior, informed the Director-General, F. I. A., Islamabad that the matter must be taken to the High Court and a revision petition be filed which will be conducted by the standing counsel. According to the affidavit the standing counsel was informed by the F. I. A. vide letter dated 4th June, 1978 that the proposal for filing the revision petition had been accepted by the Government and he was asked to file the revision petition. The advice of the standing counsel was that a second revision petition against the order of the learned Additional Sessions Judge was not competent in view of the provisions of subsection (4) (b) of section 439 Cr. P C. At this stage, the matter appears to have been referred by the F. I. A. to the Ministry of Interior through its letter No. 487/PPL/15/HC, dated 19th June, 1978 whereupon the Ministry of Interior vide letter dated 10th July, 1978 informed the Director-General, F. I. A., Lahore, that the revision petition being not competent, the standing counsel at Lahore was "being instructed by the Ministry of Law to file a writ petition in the matter" From the perusal of the affidavit filed by the Assistant Director, F. I. A. it appears that the writ petition had been drafted but certified copies of the orders were not available. The requisite copies were applied for soon thereafter and were supplied to the learned standing counsel vide letter dated 16th September, 1978. The writ petition was finally prepared and filed in the High Court on 10th October, 1978.
11. The learned counsel for the respondent relies on Province of Punjab v. Abdul Aziz (1976 S C M R 994) where 6 months' delay in the institution of the application for leave to appeal was not condoned on the ground that valuable right had accrued to the respondents in the meantime and that no explanation for the delay had been offered by the learned Assistant Advocate-General who appeared for the petitioner.
The case to my mind is clearly distinguishable as the two grounds which pursuaded their Lordships not to condone the delay are conspicuous by their absence. The respondent No. 2 is unable to claim that any valuable right has accrued in his favour since the decision of the learned Addl. Sessions Judge, Lahore; and an explanation for the delay is also available which will be examined on merits.
12. The learned counsel for the respondent next relies on S. Muhammad Din & Sons Ltd. v. Sales Tax Officer (P L D 1977 Lah. 1225). The facts of that case were that an application for a licence under section 8 of the Sale Tax Rules, 1951 was rejected in the year 1965 which remained unchallenged. Subsequent applications in the years 1969, 1970 and 1971 also remained unfruitful. It was under these circumstances that the Court found the petitioner negligent in seeking the discretionary relief. To my mind, the case was decided on the peculiar facts and does not lay down any general principle that would govern all cases.
In Pakistan v. Abdul Hamid (P L D 1961 S C 105) the petitioner, a Government servant had been making representations to the Government all through from 1949 when he suffered the injury and pursued the matter till the year 1957 when the writ petition was filed. The delay under the circumstances was not considered as fatal.
In Manzur Ahmad v. Province of West Pakistan (P L D 1961 S C 166) the Court found that a cause of action had arisen in favour of the petitioner in June, 1954. However, no writ petition was filed even after the restoration of writ jurisdiction in October, 1955 and was actually filed on 15th July, 1956. After due consideration of the facts of the case their Lordships of the Supreme Court expressed the view that they did not consider that "there was inordinate delay in applying some 9 months later".
13. The learned counsel for the petitioner has drawn my attention to Mohsan Khan v. Chief Settlement Commissioner (1969 S C M R306) where the Supreme Court observed that mere delay is not by itself a sufficient ground for non-suiting a party in a proceedings of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. It is urged that the petitioner could not be regarded as being negligent and the relief by way of a writ ought not to be denied to him.
14. The learned counsel next relies on Baqir Hussain v. Yatim Bibi (1978 S C M R 296). 1n that case the Supreme Court held that where a party is shown to have vigilantly pursued the matter and is not shown to be either negligent or have acquiesced or slept over his rights, the High Court would be right in holding that the writ petition did not suffer from laches nor would his conduct, in any way, disentitle him to any relief.
In Miraj-ud-Din v. Senior Supdt. of Police (P L D 1970 Lah. 569) it was held that except where there is a bar of limitation, the delay simplicitor has never been treated as a bar. Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself,- would not be sufficient to bar the remedy. Muhammad Wazir v. Jahangirimal (A I R 1949 Lah. 72), Habibullah Khan and others v. Qazi Muhammad Ishaq and others (P L D 1966 S C 505), Mst. Noor Jehan Begum v. Abdul Majid Shaida and another (Law, Notes 1967 (NUC) S C 15), Lindsay Petroleum Company v. Hard (1874 L R 5 P C 221) and Dalton v. Angus ((1887) 6 A C 740) may also be cited in support of this view.
15. Upon a careful consideration of the matter I have come to the conclusion that the circumstances under which the order of the learned Addl: Sessions Judge was passed and in view of the subsequent efforts put in by the petitioner as early as 11th April, 1978 to move the High Court, he could not be described as being negligent. It is not denied that F.I.A., which was the prosecuting agency had no notice of the hearing before the learned Addl. Sessions Judge and that they remained unaware of the order till the matter was brought to their notice by the Controller Imports and Exports, by his letter dated 9th March, 1978 upon receipt of information from respondent No. 2. The rest of the delay appears to have been caused due to Misunderstanding between the two departments of the Government as to whether a second revision would be competent. Institution of a writ petition by the State is rather an extraordinary step and approval of the Ministry of Interior and Ministry of Law appears to have been sought which caused some amount of delay but that delay appears to be inevitable when a number of departments are involved. It is difficult to agree with t he learned counsel for the respondent that the petitioner has been guilty of negligence and the petition is barred' by laches. In fact, unlike the fixed period of limitation prescribed by the provisions of the Limitation Act, 1908, the question of laches has to be examined by the Court in the context of the facts and circumstances C of each case having due regard to the conduct of the parties. Under the circumstances of the case, I am of the view that the petition is not barred by laches
16. The learned counsel for the petitioner contended that the learned Addl. Sessions Judge had assumed jurisdiction to quash the proceedings on the erroneous assumption that no notification under section 6 of the Federal Investigation Agency Act, 1974 was passed with the result that F. I. A. had no jurisdiction to investigate the offence. This assumption has been shown to be incorrect by producing a copy of the Gazette Notification No. SRO-539(1)/76, dated 2nd June, 1976. He contends that it is a wellsettled principle of administration of justice in criminal cases that proceedings, before the trial Court should not be quashed at a stage when the accused has been summoned but .no evidence whatsoever has bean recorded and regular hearing not yet begun. . It was urged that it is not proper for the Court to quash proceedings at a stage when there is only a complaint or challan before the trial Court. In such cases it is only after the evidence is recorded that the truth or falsity of the said complaint can be tested. If the Court were to interfere at that stage, it would be converting itself into a Court of first instance in almost all criminal cases and deciding the dispute even before the evidence has been led. It would be unfair to the complainant that his complaint should be thrown out before he had a chance to examine his witnesses. It will amount to stifling the prosecution and such a practice has been disapproved by their Lordships of the Supreme Court in cases reported as Ghulam Muhammad v. Muzammal Khan (P L D 1967 S C 317) and Haq Nawaz v. Muhammad Afzal (P L D 1967 S C 354). In support of the proposition he relied on Yasmin v. Muhammad Khalid (1977 P Cr. L J 54) where it was held that ordinarily cases ought to be allowed to proceed to their proper conclusion in accordance with the law. But in rare and exceptional cases where to permit them to continue would amount to an abuse of process of Court because there would be a persecution and a harassment of the innocent the High Court may properly quash the proceedings. It was submitted that the learned Addl. Sessions Judge did not take care to examine the facts and circumstances of the case and proceeded to decide the fate of 14 challans on .the basis of the facts of one case alone where certain forgery committed 'in regard to the goods authorised to be imported had been brought out. He contended that the allegations against the respondent were multifarious and he was accused of tampering with a large number of licences in various manners. In some cases he has extended the dates of validity of the licences for import of goods, which he was not entitled to import.
He contended that by altering the period of validity of some licences the respondent No. 2 deprived the State of the amount of fresh licences fee, which would have been payable in the event of issuance of a new licence.
18. Mr. S. M. War, the learned counsel for respondent No. 2 urged that the revisional jurisdiction under section 439-A, Cr. P. C. was much wider in scope than the jurisdiction under section 561-A, Cr. P. C. He asserted that the order of the learned Addl. Sessions Judge has been misunderstood by the learned counsel for the petitioner. According to him the judgment proceeded on the footing that the offences under the Imports and Exports Act are triable only under and in accordance with the requirement of that Act, and it is not open to the State to prosecute a citizen under the provisions of the general law. According to him, the provisions of sections 420, 468 and 471, P. P. C. cannot be invoked against the respondent, as these offences are mere surpulsage. In State v. Hamtho (1971 S C M R 684) relied upon by the learned counsel, the respondent had been convicted by a Sub-Divisional Magistrate for an offence under section 167(81) of the Sea Customs Act. The procedure for trial for such an offence was prescribed by subsection (2) of section 7 of the Land Customs Act, 1924 and this required that the Land Customs Officer should in the case of an offence committed by bringing in or taking out prohibited goods by land, make a complaint to a Magistrate. The accused was not charged with any other offence. It was no body's case that in his attempt to violate the provisions of Sea Customs Act, the accused in that case had committed any forgery or fraud for which the State wanted to proceed against him ; the only charge being under section 167(81) of the Sea Customs Act. It was in the context of these circumstances that the Supreme Court of Pakistan recorded the finding that where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure under the provisions of the Criminal Procedure Code.
In Abdul Sattar v. State (1975 P Cr. L J 11137) the applicant was accused of violation of the provisions of the Censorship of Films Act, 1963, which required the statutory authority to submit a complaint. It was held that the recourse to the provisions of section 292, P. P. C. was not permissible. The case is clearly distinguishable as the present case does not involve prosecution for an act, which constitutes an offence punishable under two different enactments.
17. I regret my inability to agree with the learned counsel for the respondent that where a person is charged with offences under the provisions of Imports and Exports Act, it would not be open to the State to proceed against him for other offences which he may have committed for the purpose of and in the course of carrying on acts which constitute an offence under that law. In the present case, the respondent is alleged to have imported goods in contravention of the restrictions imposed by or under section 3 of the Imports and Exports Act. It is not the prosecution case that he imported the goods without the authority of a valid licence. He is alleged to have resorted to forgery and interpolation in the documents issued to him by the Chief Controller of Imports and Exports by changing the descriptions of goods he was entitled to import under the licence issued to him. He is also alleged to have thereby defrauded the State of certain licence fee by altering the period specified in relation to establishment of letters of credit and drew foreign exchange for a purpose not authorised by the licence issued to him. Upon a careful consideration of the matter I am of the view that while an offence under the Imports and Exports Act may be punishable in the manner laid down by the provisions of section 5(b) of the Imports and Exports Act, 1950, there is nothing in that Act or the authorities cited by the learned counsel for the respondent to show that his prosecution under the Imports and Exports Act would absolve the p respondent of the liability to prosecution in relation to offences under sections 420, 468 and 471, P. P. C. I am of the view that it is open to the State to proceed against him both for the violation of the Imports and Exports Act and also to launch, criminal prosecution against the respondent in respect of offences allegedly committed by him under sections 420, 468 and 471, P. P. C.
18. The next important question raised by Mr. S. M. Zafar, the learned counsel for respondent No. 2 is that sections 468 and 471, P. P. C. being non-cognisable offences, it was not open to the F. I. A to take cognisance of these offences and the entire proceedings against the respondent are without jurisdiction and cannot possibly form the basis of prosecution and conviction of the respondent. In support of his argument the learned counsel relied in Mumtaz Begum v. State (1968 P Cr. L J 97) Haider v. State (1969 P Cr. L J 598) Sharafat Hussain v. State (1974 P Cr. L 1 127) Mst. Razia v. State (1977 P Cr. L J 328) Muhammad Anwar v. State (1976 P Cr. L J 1325) and Shamim Ara v. Nawab Khan (1976 P Cr. L J 1407).
19.The cases relied upon by the learned counsel for the respondent mostly deal with offences under the West Pakistan Suppression of Prostitution Ordinance, 1961, where qualified power of arrest without a warrant is given to certain police officers. It was held that this fact did not convert the offence into a cognisable offence. On a parity of reasoning it was suggested that the mere fact that some of the officers of the F. I. A. were entitled to arrest an accused without a warrant would not convert the non-cognisable offence into a cognisable offence. After examining the provisions of sections 190, 4, 155 and 173, Cr. P C., the Courts came to the conclusion that the police officer's report to a Magistrate cannot be treated as a complaint and it is not open to the Magistrate under section 190, Cr. P. C. to take cognisance of a case on the basis of such a report.
20. The learned counsel for the petitioner has drawn my attention to a Division Bench decision in the case of Sadan v. State (P L D 1965 B J,12) where after extensive review of the case law, the Court came to the conclusion that an investigation by the Police is an antecedent proceeding. It does not serve as the foundation-stone nor as a sine qua non of a valid trial in Court. A Police Officer, who investigates an offence which he is not empowered to investigate or makes an arrest where he is not so empowered, may find himself in difficulty during investigation if he is defied or resisted, and the law may not give him any, protection, or he may make himself liable to criminal or civil action in' certain circumstances, but it is difficult to see why this disability should attach itself to the proceedings in Court or prevent a Court of law from taking cognizance of the offence on a report submitted by him under clause (a) or (b) of section 190 of the Code of Criminal Procedure or prevent a Court from assessing the value of evidence placed before it in the absence of a clear enactment, express or implied, preventing the Court from doing so. The Court came to the conclusion that there is nothing in law to prevent a police officer from making a complaint in a case of which the facts have come to his knowledge and which he cannot investigate. In any case, the jurisdiction of a Court cannot be ousted merely because a report was submitted by a police officer who was not authorised to investigate. The judgment of the Division Bench does not seem to have been brought to the notice of the learned Judges who decided various cases relied upon by the learned counsel for the respondents.
21. The learned counsel for the petitioner has also drawn my attention to certain observations made in the case reported as Muhammad Rafique v. State (1973 P Cr. L J 366) where the learned Judge of this Court relying upon Crown v. Mehr Ali (P L D 1956 F C 106), The Crown v. Subhan (P L D 1956 B J 9), Sheikh Abdul Majid v. The State (P L D 1958 Kar. 86), Walizar and another v. The State (P L D 1960 Kar. 204) and Manzoor Elahi v. The State (P L D 1960 Kar. 607), held, that any defect, irregularity or violation of procedure at the preliminary stage of investigation will not affect the jurisdiction of the Court with whose procedure no fault has been found,
22. Upon a careful consideration of the facts of this case, I feel that the decision of controversy is not necessary inasmuch as the respondent is not in a position to allege total absence of jurisdiction on the part of the police. It is admitted on behalf of the respondent that the offence under section 420' P. P. C. of which the respondent is also accused is cognisable and the police would be entitled to assume jurisdiction to investigate.
23. Mr. Zia Mahmud Mirza, the learned counsel for the petitioner urged that where some of the offences with which the accused is charged are cognisable and the others are non-cognisable, it is open to the police to assume jurisdiction to inquire into the transaction as a whole. The substance of the argument was that it was open to the police to inquire into a transaction which resulted into offences both cognizable and noncognisable and to submit a report in respect of the entire transaction and the conduct of the accused. In support of the contention that in such an eventuality the police may examine the whole of the occurrence involving a cognisable offence, he relies on Vadlamudi v. State of A. P. (A I R 1961 Andh. Pra. 449) where the following observations appear at page 453: -
"A case can include one offence or more than one offence. It must be either a cognizable case or a non cognizable case. It would be a non-cognizable case only if every one of the offences is a non-cognizable offence. It would be a cognizable case under section 4(I) (n), Cr. P. C. even if one or more (not necessarily all) of the offences in the case are cognizable offences. The Code does not contemplate any case to be partly noncognizable."
24. The argument advanced by the learned counsel is not devoid of force. Thus, where a group of persons Grin themselves into an unlawful assembly and commit offences of murder and hurt which are punishable under section 305/323, P. P. C., it cannot be seriously contended that while the police may investigate and submit a report in relation to an offence under section 302, P. P. C. but the charge under section 323, P. P. C. being non-cognizable, the police would not be able to take cognizance of the offence under section 323, P. P. C. and thus would not be competent to submit a report under section 170, Cr. P. C. and for that matter, the Magistrate shall not be competent to try the accused upon a report by the police officer in this behalf.
27. It is, however, contended on behalf of the respondent that no offence under section 420, P.P.C. is made out in view of the defective language of section 415, P.P.C. In order to support his contention the Muhammad (P L D 1973 S C 619) to contend that the deception is an essential element of cheating. According to the learned counsel in order to constitute an offence of cheating the transaction must be shown to have caused harm to the deceived person, in body, mind, reputation or property. According to him, the second ingredient is not satisfied. The learned counsel for the petitioner in rebuttal has drawn my attention to the fact that apart from committing interpolation in the record, the accused is alleged to have defrauded the State, the - petitioner in this case, of the fee payable in respect of the import licence by altering the dates by which the letters of credit if not established the licence would lease in terms of clause (3) of paragraph 12 of the Import Policy Order, 1975 and licence fee shall be payable for a fresh licence if any obtained by the accused, He is also alleged to have defrauded the State of the foreign exchange by drawing the amount for a purpose for which no allocation had been made in pursuance of the import licence. The learned- counsel for the petitioner strenuously urged that a prima facie case under section 420,. P.P.C. is made out.
28. On a perusal of the record I find that it was not the respondent's case before the learned Additional Sessions Judge that no case under section 420, P.P.C. was at all made out. The learned Additional Sessions Judge had proceeded on the assumption that the respondent can only be tried under the provisions of section 5 of the Imports and Exports Act, 1950, which would exclude the application of the provisions of general law. As earlier explained, I am of the view that it is open to the State to prosecute a person who with the object of violating the provisions of the Imports and Exports Act is guilty of fraud, forgery, theft or offences of the like nature and his trial for the violation of the provisions of Imports and Exports Act would not absolve him from his liability for trial, conviction and sentence in respect of acts which constitute offences under sections 420, 468 and 471, P.P.C. and other provisions of the Pakistan Penal Code. Assuming for the sake of argument that the respondent is in a position to establish that an offence under section 420, P.P.C. in the context of the circumstances of the case is not made out that question can also be raised by the respondent before trial the Court. To my mind, the plea, which admittedly was not taken before the learned Additional Sessions Judge would hardly serve to justify the order of the learned Additional Sessions Judge. In any case, the question being arguble, a case for quashment under section 439, Cr. P. C. was hardly made out.
29. Be that as it may, the question would need to be raised and argued before the trial Court who may pronounce upon the various points of law on the basis of evidence and material placed before it and the stage at which the learned Additional Sessions Judge proceeded to quash the proceedings was hardly fit for intervention by the revisional Court under section 439, Cr. P. C.
This brings us to the last point raised on behalf of respondent No. 2. In his arguments the learned counsel for the respondent laid much emphasis on the fact that a civil suit was filed by respondent No. 2 before the civil Court challenging the validity of the action of the Chief Controller of Imports and Exports in cancelling the registration of Messrs National Electric Company of Pakistan under the provisions of Imports and Exports Registration Act, 1952 which was decreed by the learned Additional Sessions Judge, Lahore, by his judgment dated the 5th of March, 1979. The learned Counsel for the petitioner, however, explains that the order of cancellation of registration was based upon import licence No. 410379 alone while the respondent is sought to be prosecuted for offences in respect of 14 different import licences. He explains that the order of the learned Additional Sessions Judge has not become final and the limitation for filing a second appeal against the same has not expired. He also places reliance on a case reported as Mst. Naseer Begum v. State (1972 S C M R 584-L) where it was held that in the course of a criminal trial, the judgment of the civil Court is not admissible to establish the truth of the facts upon which it is rendered. It was held that in a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence produced before it. In Muhammad Ahmad v. State (1972 S CM R 85) the Supreme Court declined to interfere with the order of the High Court refusing to stay criminal proceedings pending before the trial Court. The learned counsel has also drawn my attention to the judgment of the Supreme Court in Muhammad Akbar v. State (P L D 1968 S C 281) where it was observed that normally criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject-matter. But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done to the case if there be a conflict of decision between the civil Court and the criminal Court specially in cases where the right or title to property itself is in dispute, the criminal Court should not give a finding in respect of such issue when the civil suit is pending,
30. Having given the matter my anxious consideration I am of the view that the finding of the civil Court covers only one of the 14 licences in respect of which the State had launched prosecution and that it was too early for the learned Additional Sessions Judge to have intervened to quash the challans when no evidence whatsoever had been led by either side. In the result I hold that the assumption of jurisdiction by the learned Additional Sessions Judge was not warranted by the settled principle of law and accordingly declare his order as being without lawful authority and of no legal effect. The order is quashed and the case is remanded to the trial Court for disposal of 14 challans. Respondent No. 2 shall be free to raise all questions including the question of assumption of jurisdiction by the trial Court in relation to all or any of he charges levelled by the State against him. The petition is thus accepted with costs.
Petition accepted.
[Lahore]
Before Muhammad Amin Butt, J
THE STATE-Petitioner
Versus
ADDITIONAL SESSIONS JUDGE, LAHORE AND ANOTHER-Respondents
Writ Petition No. 4901 of 1.978, decided on 11th July, 1979.
(a) Evidence Act (I of 1872)-
-- S. 78 read with S. 57-Proof of official documents-Case pertaining to domain of amendment of "laws of Pakistan" and not to performance of an act or exercise of power conferred by under any law-Held, provisions of S. 78 do not apply to such case.
Collector, Cawnpore v. Jugal Kishore A I R 1928 All. 355; Moti Lal Nehru v. Emperor A I R 1931 All. 12; Puranmal v. Emperor A I R 1946 Pat. 76; Public Prosecutor v. Thippayya A I R 1919 Mad. 459 and Brahmeshwar Prasad v. State of Bihar A I R 1950 Pat. 265 not relevant.
(b) Constitution of Pakistan (1973)--
--- Art. 199-Writ petition-Laches-Definition-Person seeking remedy not committing such a delay as would cause prejudice to other side or would amount to waiver or acquiescence on his part---Held, technical plea of laches, by itself would not be sufficient to bar remedy in such case-Question of laches to be examined by Court in context of facts and circumstances of each case having regard to conduct of parties-Limitation Act (IX of 1908).[Laches].
Laches has often teen defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself, would not be sufficient to bar the remedy.
In fact, unlike the fixed period of limitation prescribed by the pro visions of the Limitation Act, 1908, the question of laches has to be examined by the Court in the context of the facts and circumstances of each case having due regard to the conduct of the parties.
Pakistan v. Abdul Hamid P L D 1961 S C 105; Manzur Ahmad v. Province of West Pakistan P L D 1961 S C 166; Mohsan Khan v. Chief Settlement Commissioner 1969 S C M R 306; Baqir Hussain v. Yatim BIN 1978 S C M R 295; Miraj-ud-Din v. Senior Superintendent of Police P L D 1970 Lah. 569; Muhammad Wazir v. Jahangirimal A I R 1949 Lah. 72; Habibullah Khan and others v. Qazi Muhammad Ishaq and others P L D 1966 S C 505; Mst. Noor Jehan Begum v. Abdul Majid Shaida and another Law Notes 1967 (NUC) S C 15; Lindsay Petroleum Company v. Hard 1874 L R 5 P C 221 and Dalton v. Angus (1887) 6 A C 740 ref.
Province of Punjab v. Abdul Aziz 1976 S C M R 294 and S. Muhammad Din & Sons Ltd. v. Sales Tax Officer P L D 1977 Lah. 1225 distinguished.
(c) Imports and Exports (Control) Act (XXXIX of 1950)--
--- Ss. 3 & 5 and Penal Code (XLV of 1860), Ss. 420, 468 & 471-Accused alleged (i) to have imported goods in contravention of restrictions under S. 3 of Act by resorting to forgery and interpolation of documents and changing description of goods he was entitled to import under licence; (ii) to have, thereby, defrauded State of licence fee, and (iii) to have drawn foreign exchange for purpose not authorised by licence issued to him---Prosecution of accused for offence under S. 3 of Act-Held, cannot absolve him of liability to prosecution in relation to offences under Ss. 420, 468 & 471, P. P. C.-Criminal Procedure Code (V of 1898), S. 403.
In the present case, the accused was alleged to have imported goods in contravention of the restrictions imposed by or under section 3 of the Imports and Exports (Control) Act, 1950. It was not the prosecution case that he imported the goods without the authority of a valid licence. He was alleged to have resorted to forgery and interpolation in the documents issued to him by the Chief Controller of Imports and Exports by changing the descriptions of goods he was entitled to import under the licence issued to him. He was alleged to have thereby defrauded the State of certain licence fee by altering the period specified in relation to establishment of letters of credit and drew foreign exchange for a purpose not authorised by the licence issued to him.
It was contended on behalf of the accused that the offences under the Imports and Exports (Control) Act, 1950 were triable only under and an accordance with the requirement of the Act, and it was not open to the State to prosecute a citizen under the provisions of the general law. According to him, the provisions of sections 420, 468 and 471, P. P. C. could not be invoked against the accused, as these offences are mere surpulsage.
Held, while an offence under the Imports and Exports Act may be punishable in the manner laid down by the provisions of section 5(b) of the Imports and Exports (Control) Act, 1950 there is nothing in that Act or the authorities cited on behalf of accused to show that his prosecution under the Imports and Exports (Control) Act, 1950 would absolve the accused of the liability to prosecution in relation to offences under sections 420, 468 and 471, P. P. C. it is open to the State to proceed against him both for the violation of the Import and Export (Control) Act, 1950 and also to launch criminal prosecution against the respondent in respect of offences allegedly committed by him under section 420, 468 and 471, P. P. C.
State v. Hamtho 1971 S C M R 686 and Abdul Sattar v. State 1975 P Cr. L J 1137 distinguished.
(d) Criminal Procedure Code (V of 1898)-
-- S. 439 read with Imports and Exports (Control) Act (XXXIX of 1950), Ss. 3 & 5 and Penal Code (XLV of 1860), Ss. 420, 468 & 471-Revision-Quashment of proceedings-Accused challaned for offences of resorting to forgery of and interpolation in import licences-Civil suit filed by accused against cancellation of registration by Chief Controller of Imports and Exports covering only one of 14 licences subject of criminal prosecutions-No evidence yet led by either side in criminal prosecution before criminal Court-Order of Sessions Judge under S. 439, Cr. P. C. quashing challans lodged by State in respect of such offences---Held, without lawful authority, in circumstances of case, and set aside--Constitution of Pakistan (1973), Art. 199.-[Revision (criminal)].
Naseer Begum v. State 1972 S C M R 584; Muhammad Ahmad v. State 1972 S C M R 85 and Muhammad Akbar v. State P L D 1968 S C 281 ref.
Zia Mahmood Mirza for Petitioner.
Nemo for Respondent No. 1.
S. M. Zaffar, Ch. Ijaz Ahmad, Abid Hussain and Hamayun Shafi for Respondent No. 2.
Dates of hearing: 14th, 17th, 20th, 25th, 26th March ; 2nd, 7th and 11th April 1979.
JUDGMENT
The State acting through the Deputy Director, F. I. A., Lahore has instituted this petition to have the order dated 16th January, 1978 passed by the learned Additional Sessions Judge, Lahore, respondent No. 1, declared to be without lawful authority and of no legal effect and consequent quashment of that order.
2. The brief facts of \'the case are that Messrs National Electric Company of Pakistan, Gujranwala and Messrs Super Electric Industries Ltd., Gujranwala, of which Inamul Haq Bhatti, respondent No. 2, was, the Managing Partner, were engaged in the business of manufacture of electric transformers. The raw material for manufacture of transformers are imported from abroad. The two businesses were duly registered with the Controller of Imports and Exports under the provisions of the Imports and Exports (Control) Act, 1950 as industrial importers.
3. According to the import policy issued by the Federal Government under the provisions of subsection (1) of section 3 of the Imports and Exports (Contr9l) Act, 1950, the respondent No. 2 was eligible for grant of licences for import of electric alloy and high carbon steel sheets, plastic moulding compound etc. and licences for imports of such material were allegedly issued to him by the Controller. From the exchange control copy of the import licences submitted by respondent No. 2 for purposes of establishing letters of credit for import of material it came to the knowledge of the Controller of Imports and Exports that the respondent No. 2 had established the letters of credit for items other than those for which licences were issued by the Controller of Imports and Exports. On scrutiny he found that in as many as 14 cases where letters of credit bad been opened, the items for which the licences were actually issued had been altered to enable the importers to import materials other than those for which licences were issued. On 15th April, 1977 the Chief Controller of Imports and Exports authorised the Deputy Director office of the Director General Federal Investigation Agency, Islamabad to file a complaint in a Court not inferior to that of a Magistrate; First Class against Messrs National Electric Company of Pakistan Gujranwala, for changing fraudulently the descriptions of import licence No. 410379 dated 5th March, 1976 issued for a sum of rupees six lacs against Serial No. 129(S) of the Import Policy Order, 1975, from "Electric alloy and high carbon steel sheets" to 'components for assembly manufacture of capital goods including starters, ball bearings and capacitors -,alongwith change of I. T. C. numbers given against serial No. 323 of the said Import Policy. It appears that later the following F. I. Rs. were lodged in respect of various licences for the forgeries, etc. mentioned against each.
S. No. Cases Item for which licence was actually issued Description as allegedly altered by the accused
1 2 3 4
1 FIR No. 6 dated 1-1-77 under section 420/468/ 471, P. P. C. & S. 5 of Imports and Exports Act in respect of licence No. 410379, dated 5-3-76 for Rs. 6,00,000. S. No. 129(C)-Part A Electrical Alloy and High Carbon Steel Sheets. I. T. C. Nos. 73-131.1, 73-15 IX. (A) S. No. 323-Part B components for assembly/ manufacture of capital goods, including starters, ball bearings and capacitors.
(B) (Description of items forged as such does nor occur anywhere in the relevant policy order).
2 FIR No. 86 dated18-6-77 under sections 420/468/ 471, P. P. C. & Sec. of Imports and Exports Act, in respect of licence No. 632850. dated 21-6-76 for Rs. 5,90,000. S. 220-Part A Plastic Moulding Compound. 5 ITC. Nos. 39-01 II. 39-02 II, 39-03 II, 39-04 II.39-05 II, 39-06, II, (A) S. No. 323-Part B components for assembly /manufacture of electric motors including starters, ball bearings.
(B) D o
3 F. I. R. No. 88.
Do
in respect of licence No. 622876 dated 15-6-76 for Rs. 4,90,000 S. 220-Part A Plastic Monlding Compound ITC. Nos. 39-03 II, 39-02 II,39-05 II, 39-04, II, 39-05 II, 290611 (A) S. 223-Part B components for assembly /manufacture of a electric motors including starters, ball bearings.
(B)
4 F. I. R. No. 89
Do
in respect of licence No. 654010, dated 21-6-76 for Rs. 5,90,000 and 654011 dt: 21-6-76 for Rs. 5,90,000.
Do
(A) Do
(B)
5 F.I.R. No. dt. 18-6-66
Do
in respect of licence No. 654012, dt. 15-6-76 for Rs. 5,90,000.
Do
(A) Do
6 F. I. R. No. 92
Do
in respect of licence No. 632846 dt. 29-5-76 for Rs. 4, 50,000
Do
(A)
(B)
7 F. I. R. No. 93 dated
18-6-77 under section
420/468/471, P. P. C
& Sec. 5 of Imports &
Exports Act in respect
of licence No. 410318
dt : 2-9-76 for
Rs. 3,00,000. S. No. 323-Part B
components for assembly /manufacture of capital goods excluding items specified in Part I of Annex. XII (respective numbers) (A)S. No. 323-Part B components for Assembly /manufacture of capital goods
including starters, bail roller and taper bearings and capacitors.
(B) Description of item forged as such does not occur anywhere in the relevant Import Policy Order.
8 F. I. R. No. 94 dt :
18-6-77 in respect of licence No. 631594, dt : 28-1-76 for Rs. 3,56,000. Prescribed period for opening L.C. 30 days as per para. 12 (3) of Import Policy Order. L. C. Not opened and date of licence changed with a view to extending validity period upto
9-3-76.
9 F.I.R No. 95 dt. 18-6-77 under section
420/468/471, P.P C. &
S. 5 of Imports and Exports Act in respect
of licence No. 653490
dt. 7-8-76 for Rs. 6,00,000. S. No. 129(C) of Part A. Electrical Alloy & high carbon steel sheets. ITC No. 73-13 II, 73-15 IX. (A) S. No. 129(C) and (a) Part A Electric Alloy & high carbon steel sheets and Alloy steel strips including electric carbon and alloy steel strips.
(B) After authorised items the words Alloy steel strips including electric carbon and alloy steel strips" have been added but the words "excluding steel strips for G.I. Pipes and tubes and black pipes and tubes" which are given against S. No. 129 (C) of Import Policy Order have been omitted.
10 F. I. R. No. 96 Do in respect of licence No. 741604 dt: 18-5-76 for Rs. 5,60,000.
Do
(A) Do
(B)
11 F.I.R. No. 97 dt. 18-6-77 under sections 4201468/ 471. P. P C. and Sec. 5 of Imports & Exports Act, in respect of licence No. 631633 dt.
18-5-76 for Rs. 4,00,000. S. No. 129(C)-Part A Electrical alloy and high carbon steel sheets.
I. T. C. Nos. 73-13 II, 73-15IX. (A) 1. Period of LC changed to 10-7-76 so as to extend period of validity of licence.
2. The word Commercial' changed into 'Industrial'
3. After authorised items the word "Alloy steel is including rip electric carbon and alloy steel 129(C) and (A).
12 F.I.R. No 98 dt. Do
in respect of licence No. 632848 dated 31-5-76 for Rs. 2,95,000. S. No. 220 Part A Plastic
moulding compound. 39-01. II 39-02.II 39-03. II, 39-04. II 39-05. 11, 39-06. II S. No. 320-B--Part 13 ball roller and taper bearings including bearings of notified specifications. ITC No. 84-62.
13 F.I.R. No. 99 Do in respect of fence No. 632847 dated 31-5-76 for Rs. 2,50,000.
Do
Do
14 F.I.R. No. 100 Do
in respect of licence No. 632872, dated 25-6-76 for Rs. 90,000 and 14743, dt: 18-5-76 for Rs. 2,32,000.
Do 1. Word 'Commercial' was changed into Industrial'.
2. Changed period of licence
and 11-7-76 so as to extend validity of licence.
4. The Federal Investigation Agency, Lahore, with whom 14 cases were registered, after necessary investigation, put in 14 challans against respondent No. 2 under sections 420, 468 and 471, P. P. C. On receipt of the challans the trial Court summoned the respondent as an accused in alt the 14 cases whereupon he filed a criminal revision under section 435 read with section 439-A, Cr. P. C. in the Court of the Sessions Judge Lahore, which was entrusted to Mr. Ayub Hassan, Addl. Sessions Judge, Lahore, who after hearing the counsel for the accused and the A. P. P. on behalf of the State quashed the proceedings pending before the trial Magistrate against respondent No. 2 in all the 14 cases. Feeling aggrieved by the decision of the learned Addl. Sessions Judge, the State has come up with the present writ petition.
5. Before me Mr. S. M. Zafar, the learned counsel for the respondent No. 2 raised a number of preliminary objections to the maintainability of the present writ petition. He contended that the F. I. A. was not competent to investigate the case as the subject did not fall within the purview of the schedule to the Federal Investigation Agency Act, 1974. The argument proceeded on the assumption that no notification had been issued by the Federal Government under the provisions of section 6 of the Federal Investigation Agency Act, 1974. However, in the course of arguments Mr. Zia Mahmud Mirza the learned counsel for the petitioner produced a copy of Notification No. SKO-539(1)/76 dated 2-6-1976 published in the Extra Ordinary Gazette of Pakistan dated 7-6-1976 which showed that the schedule to the Federal Investigation Agency Act, 1974, had been amended to add item 24 which read as under :-
26. Offences punishable under the Imports acid Exports (Control) Act, 1950 (XXXIX of 1950)."
6. Faced with the situation, the lear.,44 counsel for respondent No. 2 took up the stand that the notification having not been produced before the learned Addl. Sessions Judge, it was not open to the petitioner to rely upon it before this Court. The argument was not based upon an interpretation of the provisions of section 78 of the Evidence Act, 1872 which enjoins that acts, orders or notifications of the Central Government in any of its Departments could only be proved by producing the record of the department, certified by the head of those departments or by any document purporting to be printed by orders of any such Government. In support of his view the learned counsel relied on Collector, Cawnpore v. Jugal Kishore (A I R 1928 All. 355), Moti Lal Nehru v. Emperor (A I R 1931 All. 12), Puranmal v. Emperor (A I R 1946 Pat. 76), Public Prosecutor v. Thippayya (A I R 1949 Mad. 459), Brahmeshwar Parshad v. State of Bihar (A I R 1950 Pat. 265).
7. In all the cases relied upon by the learned counsel the omission of the party to produce the notification before the trial Court for one reason or the other was considered fatal to the proceedings and it was held that the requirements of section 78 of the Evidence Act were not complied with. All the cases related to the exercise of powers by the Federal Government under the law and no case was cited before me where the notification had the effect of making textual changes in the enactment itself. Thus, while the learned counsel for the respondent does not dispute that the schedule to the Federal Investigation Agency Act, 1974 stands lawfully amended by insertion of item 26 in relation to offences under the Imports and Exports Act, he still claims that the failure of the petitioner to produce the notification was fatal to his case.
8. I regret my inability to agree with the learned counsel for the respondent. The moment it is conceded that the Federal Investigation Agency Act, 1974 was duly amended by the introduction of item 26 in the schedule, which in point of fact was done by notification No. SRO. 539(1)/76 dated the 2nd of June, 1976 the Court would be entitled, rather obliged to take judicial notice of such alteration of law in view of the requirements of section 57 of the Evidence Act. In fact, the learned counsel for the respondent has not been able to satisfy me how expression "laws" of Pakistan appearing in subsection (1) of section 57 of the Evidence Act of which every Court is required to take judicial notice shall be referable to the original text of the law and not to its amendments or modifications made in accordance with law.
9. Having given the matter my serious consideration I am of the view that the provisions of section 78 would have no application to the present case which pertains to the domain of amendment of the "laws of Pakistan" and not to the performance of an act or the exercise of any, power conferred by or under any law which may fall within the purview of section 78 of the Evidence Act. In this view of the matter I hold that the F. 1. A. was entitled to investigate the case registered with it in, relation to offences under the provisions of the Imports and Exports Act, 1950. It may be explained here that the learned counsel for the respondent did not dispute the proposition that the F. I. A. was entitled to investigate the offences under sections 420, 468 and 471, P. P. C.
10. The next objection taken by the learned counsel for the respondent was that the learned Additional Sessions Judge passed the impugned order on 16th January, 1978 and that the present writ petition instituted on 10th October, 1978 suffers from laches and must for that reason be dismissed.
10-A. The learned counsel for the petitioner has drawn my attention to the order of the learned Additional Sessions Judge dated 16th January, 1978 to contend that the case was argued by the A. P. P. on behalf of the State and the F. I. A. was not represented before the trial Court. He asserts that the: order of the learned Additional Sessions Judge came to the notice of the Controller of Imports and Exports from the letter dated 22nd February, 1978 addressed by respondent No. 2 to him. The Controller of Imports and Exports by his Letter No. GR-II/IQ (2)/76/,35/ 451, dated 9th March, 1978 informed the Deputy Director F. I. A., Lahore about the decision taken by the learned Additional Sessions Jude. The learned counsel for the petitioner presented an affidavit sworn by Mian Ajmal Waheed, Assistant Director (Legal) F. I. A. which shows that the F. I. A. which was the prosecuting agency and whose jurisdiction was challenged before the learned Additional Sessions Judge did not receive any notice of the hearing of the revision petition. It is deposed that as soon as the F. I. A. came to know of the orders passed by the learned Addl. Sessions Judge, they made a proposal for challenging the orders in the High Court. The proposal together with the draft grounds of revision prepared by the F. I. A were sent to the higher authorities on 11th April, 1978. On 21st May, 1978 the Government of Pakistan, Ministry of Interior, informed the Director-General, F. I. A., Islamabad that the matter must be taken to the High Court and a revision petition be filed which will be conducted by the standing counsel. According to the affidavit the standing counsel was informed by the F. I. A. vide letter dated 4th June, 1978 that the proposal for filing the revision petition had been accepted by the Government and he was asked to file the revision petition. The advice of the standing counsel was that a second revision petition against the order of the learned Additional Sessions Judge was not competent in view of the provisions of subsection (4) (b) of section 439 Cr. P C. At this stage, the matter appears to have been referred by the F. I. A. to the Ministry of Interior through its letter No. 487/PPL/15/HC, dated 19th June, 1978 whereupon the Ministry of Interior vide letter dated 10th July, 1978 informed the Director-General, F. I. A., Lahore, that the revision petition being not competent, the standing counsel at Lahore was "being instructed by the Ministry of Law to file a writ petition in the matter" From the perusal of the affidavit filed by the Assistant Director, F. I. A. it appears that the writ petition had been drafted but certified copies of the orders were not available. The requisite copies were applied for soon thereafter and were supplied to the learned standing counsel vide letter dated 16th September, 1978. The writ petition was finally prepared and filed in the High Court on 10th October, 1978.
11. The learned counsel for the respondent relies on Province of Punjab v. Abdul Aziz (1976 S C M R 994) where 6 months' delay in the institution of the application for leave to appeal was not condoned on the ground that valuable right had accrued to the respondents in the meantime and that no explanation for the delay had been offered by the learned Assistant Advocate-General who appeared for the petitioner.
The case to my mind is clearly distinguishable as the two grounds which pursuaded their Lordships not to condone the delay are conspicuous by their absence. The respondent No. 2 is unable to claim that any valuable right has accrued in his favour since the decision of the learned Addl. Sessions Judge, Lahore; and an explanation for the delay is also available which will be examined on merits.
12. The learned counsel for the respondent next relies on S. Muhammad Din & Sons Ltd. v. Sales Tax Officer (P L D 1977 Lah. 1225). The facts of that case were that an application for a licence under section 8 of the Sale Tax Rules, 1951 was rejected in the year 1965 which remained unchallenged. Subsequent applications in the years 1969, 1970 and 1971 also remained unfruitful. It was under these circumstances that the Court found the petitioner negligent in seeking the discretionary relief. To my mind, the case was decided on the peculiar facts and does not lay down any general principle that would govern all cases.
In Pakistan v. Abdul Hamid (P L D 1961 S C 105) the petitioner, a Government servant had been making representations to the Government all through from 1949 when he suffered the injury and pursued the matter till the year 1957 when the writ petition was filed. The delay under the circumstances was not considered as fatal.
In Manzur Ahmad v. Province of West Pakistan (P L D 1961 S C 166) the Court found that a cause of action had arisen in favour of the petitioner in June, 1954. However, no writ petition was filed even after the restoration of writ jurisdiction in October, 1955 and was actually filed on 15th July, 1956. After due consideration of the facts of the case their Lordships of the Supreme Court expressed the view that they did not consider that "there was inordinate delay in applying some 9 months later".
13. The learned counsel for the petitioner has drawn my attention to Mohsan Khan v. Chief Settlement Commissioner (1969 S C M R306) where the Supreme Court observed that mere delay is not by itself a sufficient ground for non-suiting a party in a proceedings of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. It is urged that the petitioner could not be regarded as being negligent and the relief by way of a writ ought not to be denied to him.
14. The learned counsel next relies on Baqir Hussain v. Yatim Bibi (1978 S C M R 296). 1n that case the Supreme Court held that where a party is shown to have vigilantly pursued the matter and is not shown to be either negligent or have acquiesced or slept over his rights, the High Court would be right in holding that the writ petition did not suffer from laches nor would his conduct, in any way, disentitle him to any relief.
In Miraj-ud-Din v. Senior Supdt. of Police (P L D 1970 Lah. 569) it was held that except where there is a bar of limitation, the delay simplicitor has never been treated as a bar. Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself,- would not be sufficient to bar the remedy. Muhammad Wazir v. Jahangirimal (A I R 1949 Lah. 72), Habibullah Khan and others v. Qazi Muhammad Ishaq and others (P L D 1966 S C 505), Mst. Noor Jehan Begum v. Abdul Majid Shaida and another (Law, Notes 1967 (NUC) S C 15), Lindsay Petroleum Company v. Hard (1874 L R 5 P C 221) and Dalton v. Angus ((1887) 6 A C 740) may also be cited in support of this view.
15. Upon a careful consideration of the matter I have come to the conclusion that the circumstances under which the order of the learned Addl: Sessions Judge was passed and in view of the subsequent efforts put in by the petitioner as early as 11th April, 1978 to move the High Court, he could not be described as being negligent. It is not denied that F.I.A., which was the prosecuting agency had no notice of the hearing before the learned Addl. Sessions Judge and that they remained unaware of the order till the matter was brought to their notice by the Controller Imports and Exports, by his letter dated 9th March, 1978 upon receipt of information from respondent No. 2. The rest of the delay appears to have been caused due to Misunderstanding between the two departments of the Government as to whether a second revision would be competent. Institution of a writ petition by the State is rather an extraordinary step and approval of the Ministry of Interior and Ministry of Law appears to have been sought which caused some amount of delay but that delay appears to be inevitable when a number of departments are involved. It is difficult to agree with t he learned counsel for the respondent that the petitioner has been guilty of negligence and the petition is barred' by laches. In fact, unlike the fixed period of limitation prescribed by the provisions of the Limitation Act, 1908, the question of laches has to be examined by the Court in the context of the facts and circumstances C of each case having due regard to the conduct of the parties. Under the circumstances of the case, I am of the view that the petition is not barred by laches
16. The learned counsel for the petitioner contended that the learned Addl. Sessions Judge had assumed jurisdiction to quash the proceedings on the erroneous assumption that no notification under section 6 of the Federal Investigation Agency Act, 1974 was passed with the result that F. I. A. had no jurisdiction to investigate the offence. This assumption has been shown to be incorrect by producing a copy of the Gazette Notification No. SRO-539(1)/76, dated 2nd June, 1976. He contends that it is a wellsettled principle of administration of justice in criminal cases that proceedings, before the trial Court should not be quashed at a stage when the accused has been summoned but .no evidence whatsoever has bean recorded and regular hearing not yet begun. . It was urged that it is not proper for the Court to quash proceedings at a stage when there is only a complaint or challan before the trial Court. In such cases it is only after the evidence is recorded that the truth or falsity of the said complaint can be tested. If the Court were to interfere at that stage, it would be converting itself into a Court of first instance in almost all criminal cases and deciding the dispute even before the evidence has been led. It would be unfair to the complainant that his complaint should be thrown out before he had a chance to examine his witnesses. It will amount to stifling the prosecution and such a practice has been disapproved by their Lordships of the Supreme Court in cases reported as Ghulam Muhammad v. Muzammal Khan (P L D 1967 S C 317) and Haq Nawaz v. Muhammad Afzal (P L D 1967 S C 354). In support of the proposition he relied on Yasmin v. Muhammad Khalid (1977 P Cr. L J 54) where it was held that ordinarily cases ought to be allowed to proceed to their proper conclusion in accordance with the law. But in rare and exceptional cases where to permit them to continue would amount to an abuse of process of Court because there would be a persecution and a harassment of the innocent the High Court may properly quash the proceedings. It was submitted that the learned Addl. Sessions Judge did not take care to examine the facts and circumstances of the case and proceeded to decide the fate of 14 challans on .the basis of the facts of one case alone where certain forgery committed 'in regard to the goods authorised to be imported had been brought out. He contended that the allegations against the respondent were multifarious and he was accused of tampering with a large number of licences in various manners. In some cases he has extended the dates of validity of the licences for import of goods, which he was not entitled to import.
He contended that by altering the period of validity of some licences the respondent No. 2 deprived the State of the amount of fresh licences fee, which would have been payable in the event of issuance of a new licence.
18. Mr. S. M. War, the learned counsel for respondent No. 2 urged that the revisional jurisdiction under section 439-A, Cr. P. C. was much wider in scope than the jurisdiction under section 561-A, Cr. P. C. He asserted that the order of the learned Addl. Sessions Judge has been misunderstood by the learned counsel for the petitioner. According to him the judgment proceeded on the footing that the offences under the Imports and Exports Act are triable only under and in accordance with the requirement of that Act, and it is not open to the State to prosecute a citizen under the provisions of the general law. According to him, the provisions of sections 420, 468 and 471, P. P. C. cannot be invoked against the respondent, as these offences are mere surpulsage. In State v. Hamtho (1971 S C M R 684) relied upon by the learned counsel, the respondent had been convicted by a Sub-Divisional Magistrate for an offence under section 167(81) of the Sea Customs Act. The procedure for trial for such an offence was prescribed by subsection (2) of section 7 of the Land Customs Act, 1924 and this required that the Land Customs Officer should in the case of an offence committed by bringing in or taking out prohibited goods by land, make a complaint to a Magistrate. The accused was not charged with any other offence. It was no body's case that in his attempt to violate the provisions of Sea Customs Act, the accused in that case had committed any forgery or fraud for which the State wanted to proceed against him ; the only charge being under section 167(81) of the Sea Customs Act. It was in the context of these circumstances that the Supreme Court of Pakistan recorded the finding that where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure under the provisions of the Criminal Procedure Code.
In Abdul Sattar v. State (1975 P Cr. L J 11137) the applicant was accused of violation of the provisions of the Censorship of Films Act, 1963, which required the statutory authority to submit a complaint. It was held that the recourse to the provisions of section 292, P. P. C. was not permissible. The case is clearly distinguishable as the present case does not involve prosecution for an act, which constitutes an offence punishable under two different enactments.
17. I regret my inability to agree with the learned counsel for the respondent that where a person is charged with offences under the provisions of Imports and Exports Act, it would not be open to the State to proceed against him for other offences which he may have committed for the purpose of and in the course of carrying on acts which constitute an offence under that law. In the present case, the respondent is alleged to have imported goods in contravention of the restrictions imposed by or under section 3 of the Imports and Exports Act. It is not the prosecution case that he imported the goods without the authority of a valid licence. He is alleged to have resorted to forgery and interpolation in the documents issued to him by the Chief Controller of Imports and Exports by changing the descriptions of goods he was entitled to import under the licence issued to him. He is also alleged to have thereby defrauded the State of certain licence fee by altering the period specified in relation to establishment of letters of credit and drew foreign exchange for a purpose not authorised by the licence issued to him. Upon a careful consideration of the matter I am of the view that while an offence under the Imports and Exports Act may be punishable in the manner laid down by the provisions of section 5(b) of the Imports and Exports Act, 1950, there is nothing in that Act or the authorities cited by the learned counsel for the respondent to show that his prosecution under the Imports and Exports Act would absolve the p respondent of the liability to prosecution in relation to offences under sections 420, 468 and 471, P. P. C. I am of the view that it is open to the State to proceed against him both for the violation of the Imports and Exports Act and also to launch, criminal prosecution against the respondent in respect of offences allegedly committed by him under sections 420, 468 and 471, P. P. C.
18. The next important question raised by Mr. S. M. Zafar, the learned counsel for respondent No. 2 is that sections 468 and 471, P. P. C. being non-cognisable offences, it was not open to the F. I. A to take cognisance of these offences and the entire proceedings against the respondent are without jurisdiction and cannot possibly form the basis of prosecution and conviction of the respondent. In support of his argument the learned counsel relied in Mumtaz Begum v. State (1968 P Cr. L J 97) Haider v. State (1969 P Cr. L J 598) Sharafat Hussain v. State (1974 P Cr. L 1 127) Mst. Razia v. State (1977 P Cr. L J 328) Muhammad Anwar v. State (1976 P Cr. L J 1325) and Shamim Ara v. Nawab Khan (1976 P Cr. L J 1407).
19.The cases relied upon by the learned counsel for the respondent mostly deal with offences under the West Pakistan Suppression of Prostitution Ordinance, 1961, where qualified power of arrest without a warrant is given to certain police officers. It was held that this fact did not convert the offence into a cognisable offence. On a parity of reasoning it was suggested that the mere fact that some of the officers of the F. I. A. were entitled to arrest an accused without a warrant would not convert the non-cognisable offence into a cognisable offence. After examining the provisions of sections 190, 4, 155 and 173, Cr. P C., the Courts came to the conclusion that the police officer's report to a Magistrate cannot be treated as a complaint and it is not open to the Magistrate under section 190, Cr. P. C. to take cognisance of a case on the basis of such a report.
20. The learned counsel for the petitioner has drawn my attention to a Division Bench decision in the case of Sadan v. State (P L D 1965 B J,12) where after extensive review of the case law, the Court came to the conclusion that an investigation by the Police is an antecedent proceeding. It does not serve as the foundation-stone nor as a sine qua non of a valid trial in Court. A Police Officer, who investigates an offence which he is not empowered to investigate or makes an arrest where he is not so empowered, may find himself in difficulty during investigation if he is defied or resisted, and the law may not give him any, protection, or he may make himself liable to criminal or civil action in' certain circumstances, but it is difficult to see why this disability should attach itself to the proceedings in Court or prevent a Court of law from taking cognizance of the offence on a report submitted by him under clause (a) or (b) of section 190 of the Code of Criminal Procedure or prevent a Court from assessing the value of evidence placed before it in the absence of a clear enactment, express or implied, preventing the Court from doing so. The Court came to the conclusion that there is nothing in law to prevent a police officer from making a complaint in a case of which the facts have come to his knowledge and which he cannot investigate. In any case, the jurisdiction of a Court cannot be ousted merely because a report was submitted by a police officer who was not authorised to investigate. The judgment of the Division Bench does not seem to have been brought to the notice of the learned Judges who decided various cases relied upon by the learned counsel for the respondents.
21. The learned counsel for the petitioner has also drawn my attention to certain observations made in the case reported as Muhammad Rafique v. State (1973 P Cr. L J 366) where the learned Judge of this Court relying upon Crown v. Mehr Ali (P L D 1956 F C 106), The Crown v. Subhan (P L D 1956 B J 9), Sheikh Abdul Majid v. The State (P L D 1958 Kar. 86), Walizar and another v. The State (P L D 1960 Kar. 204) and Manzoor Elahi v. The State (P L D 1960 Kar. 607), held, that any defect, irregularity or violation of procedure at the preliminary stage of investigation will not affect the jurisdiction of the Court with whose procedure no fault has been found,
22. Upon a careful consideration of the facts of this case, I feel that the decision of controversy is not necessary inasmuch as the respondent is not in a position to allege total absence of jurisdiction on the part of the police. It is admitted on behalf of the respondent that the offence under section 420' P. P. C. of which the respondent is also accused is cognisable and the police would be entitled to assume jurisdiction to investigate.
23. Mr. Zia Mahmud Mirza, the learned counsel for the petitioner urged that where some of the offences with which the accused is charged are cognisable and the others are non-cognisable, it is open to the police to assume jurisdiction to inquire into the transaction as a whole. The substance of the argument was that it was open to the police to inquire into a transaction which resulted into offences both cognizable and noncognisable and to submit a report in respect of the entire transaction and the conduct of the accused. In support of the contention that in such an eventuality the police may examine the whole of the occurrence involving a cognisable offence, he relies on Vadlamudi v. State of A. P. (A I R 1961 Andh. Pra. 449) where the following observations appear at page 453: -
"A case can include one offence or more than one offence. It must be either a cognizable case or a non cognizable case. It would be a non-cognizable case only if every one of the offences is a non-cognizable offence. It would be a cognizable case under section 4(I) (n), Cr. P. C. even if one or more (not necessarily all) of the offences in the case are cognizable offences. The Code does not contemplate any case to be partly noncognizable."
24. The argument advanced by the learned counsel is not devoid of force. Thus, where a group of persons Grin themselves into an unlawful assembly and commit offences of murder and hurt which are punishable under section 305/323, P. P. C., it cannot be seriously contended that while the police may investigate and submit a report in relation to an offence under section 302, P. P. C. but the charge under section 323, P. P. C. being non-cognizable, the police would not be able to take cognizance of the offence under section 323, P. P. C. and thus would not be competent to submit a report under section 170, Cr. P. C. and for that matter, the Magistrate shall not be competent to try the accused upon a report by the police officer in this behalf.
27. It is, however, contended on behalf of the respondent that no offence under section 420, P.P.C. is made out in view of the defective language of section 415, P.P.C. In order to support his contention the Muhammad (P L D 1973 S C 619) to contend that the deception is an essential element of cheating. According to the learned counsel in order to constitute an offence of cheating the transaction must be shown to have caused harm to the deceived person, in body, mind, reputation or property. According to him, the second ingredient is not satisfied. The learned counsel for the petitioner in rebuttal has drawn my attention to the fact that apart from committing interpolation in the record, the accused is alleged to have defrauded the State, the - petitioner in this case, of the fee payable in respect of the import licence by altering the dates by which the letters of credit if not established the licence would lease in terms of clause (3) of paragraph 12 of the Import Policy Order, 1975 and licence fee shall be payable for a fresh licence if any obtained by the accused, He is also alleged to have defrauded the State of the foreign exchange by drawing the amount for a purpose for which no allocation had been made in pursuance of the import licence. The learned- counsel for the petitioner strenuously urged that a prima facie case under section 420,. P.P.C. is made out.
28. On a perusal of the record I find that it was not the respondent's case before the learned Additional Sessions Judge that no case under section 420, P.P.C. was at all made out. The learned Additional Sessions Judge had proceeded on the assumption that the respondent can only be tried under the provisions of section 5 of the Imports and Exports Act, 1950, which would exclude the application of the provisions of general law. As earlier explained, I am of the view that it is open to the State to prosecute a person who with the object of violating the provisions of the Imports and Exports Act is guilty of fraud, forgery, theft or offences of the like nature and his trial for the violation of the provisions of Imports and Exports Act would not absolve him from his liability for trial, conviction and sentence in respect of acts which constitute offences under sections 420, 468 and 471, P.P.C. and other provisions of the Pakistan Penal Code. Assuming for the sake of argument that the respondent is in a position to establish that an offence under section 420, P.P.C. in the context of the circumstances of the case is not made out that question can also be raised by the respondent before trial the Court. To my mind, the plea, which admittedly was not taken before the learned Additional Sessions Judge would hardly serve to justify the order of the learned Additional Sessions Judge. In any case, the question being arguble, a case for quashment under section 439, Cr. P. C. was hardly made out.
29. Be that as it may, the question would need to be raised and argued before the trial Court who may pronounce upon the various points of law on the basis of evidence and material placed before it and the stage at which the learned Additional Sessions Judge proceeded to quash the proceedings was hardly fit for intervention by the revisional Court under section 439, Cr. P. C.
This brings us to the last point raised on behalf of respondent No. 2. In his arguments the learned counsel for the respondent laid much emphasis on the fact that a civil suit was filed by respondent No. 2 before the civil Court challenging the validity of the action of the Chief Controller of Imports and Exports in cancelling the registration of Messrs National Electric Company of Pakistan under the provisions of Imports and Exports Registration Act, 1952 which was decreed by the learned Additional Sessions Judge, Lahore, by his judgment dated the 5th of March, 1979. The learned Counsel for the petitioner, however, explains that the order of cancellation of registration was based upon import licence No. 410379 alone while the respondent is sought to be prosecuted for offences in respect of 14 different import licences. He explains that the order of the learned Additional Sessions Judge has not become final and the limitation for filing a second appeal against the same has not expired. He also places reliance on a case reported as Mst. Naseer Begum v. State (1972 S C M R 584-L) where it was held that in the course of a criminal trial, the judgment of the civil Court is not admissible to establish the truth of the facts upon which it is rendered. It was held that in a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence produced before it. In Muhammad Ahmad v. State (1972 S CM R 85) the Supreme Court declined to interfere with the order of the High Court refusing to stay criminal proceedings pending before the trial Court. The learned counsel has also drawn my attention to the judgment of the Supreme Court in Muhammad Akbar v. State (P L D 1968 S C 281) where it was observed that normally criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject-matter. But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done to the case if there be a conflict of decision between the civil Court and the criminal Court specially in cases where the right or title to property itself is in dispute, the criminal Court should not give a finding in respect of such issue when the civil suit is pending,
30. Having given the matter my anxious consideration I am of the view that the finding of the civil Court covers only one of the 14 licences in respect of which the State had launched prosecution and that it was too early for the learned Additional Sessions Judge to have intervened to quash the challans when no evidence whatsoever had been led by either side. In the result I hold that the assumption of jurisdiction by the learned Additional Sessions Judge was not warranted by the settled principle of law and accordingly declare his order as being without lawful authority and of no legal effect. The order is quashed and the case is remanded to the trial Court for disposal of 14 challans. Respondent No. 2 shall be free to raise all questions including the question of assumption of jurisdiction by the trial Court in relation to all or any of he charges levelled by the State against him. The petition is thus accepted with costs.
Petition accepted.
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