2003 PLP 1185 (YLR)

7. It may, however, be noted that before the said amendments section 23 of the Act wholly encompassed the subject in respect of "penalty and procedure" laying down that the contravention of any of provisions of the Act and the rules etc. be tried by a Tribunal constituted under section 23‑A of the Act. Under section 23‑A, every Sessions Judge of the area would act as Tribunal having powers of a Magistrate of the First Class in relation to criminal trials. Further, as contemplated under subsection (3) of section 23‑A the procedure provided in the Code of Criminal Procedure, 1898 was to be followed. After enforcement of the amendments through Act VI of 1987 the contravention of provisions of sub sections (2), (3) and (5) of section 3, subsection (3) of section 4, section 10, subsection (1) of section 12 and sub section (3) of section 20 or any rule, direction or order made thereunder have been excluded from the jurisdiction of the Tribunal and consequential amendment has simultaneously been made by inserting new sections 23‑B, 23‑C, 23‑D, 23‑F and 23‑H. Under these newly‑added provisions the adjudication of the contraventions has been bifurcated and in respect of the matters covered by the contravention of the provisions which were excluded from the purview of the Tribunal constituted under section 23‑A of the Act a new set‑up has been established and adjudication of those contraventions has been entrusted to Adjudicating Officers whose decisions are appealable before a separate forum namely the Appellate Board. A separate procedure under section 23‑E has been prescribed laying down the powers of Adjudicating Officers and Appellate Board. Section 23E of the Act runs as under:‑‑ "23E. Powers of Adjudicating Officers and the Appellate Board to summon witnesses, etc.‑‑‑(1) Without prejudice to any other provision contained in this Act, the Adjudicating Officers and the Appellate Board shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) while trying a suit, in respect of ‑ the following matters namely:‑‑ (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) requisitioning any public record or copy thereof from any Court or office; (d) receiving evidence on affidavits; (e) issuing commissions for the examination of witnesses or documents; (f) appointing guardians or next friends of persons who are minors or‑of unsound mind: (g) adding legal representatives of the accused person; (h) consolidation of cases; and (i) enforcing any order made by him or it under this Act or the rules made thereunder."

8. It may be recalled that the proceedings before Adjudicating Officer and the Appellate Board are deemed to be judicial proceedings within the meaning of section 23F of the Act, but this kind of provision is common to many Tribunals and Courts even to the Civil Court and by itself it does not determine the status of the Court as to whether it is a Civil or Criminal Court.

9. Mr. Suhail Muzaffar, learned counsel for applicant referred to the words used by the Adjudicating Officer in his original order pointedly mentioning that the charge against the applicant stood proved, he was accordingly convicted and penalty imposed on him. In view of the phraseology used in the order he argued that the Adjudicating Board shall be treated as a Criminal Court. I am unable to agree with the learned counsel that for the sole reason that the terminology often used by the Criminal Courts has been employed by the Adjudicating Officer, the forum convened by him shall essentially be treated as a Criminal Court. Indeed, it is the powers conferred on a Tribunal/Forum by statute and the procedure prescribed therein that determine the nature of the Court; and only then upon thorough consideration of all the relevant provisions governing the proceedings it can be said that such forum or Tribunal has the attributes of a Civil or a Criminal Court.

10. It is significant to note that on the subject‑matter involved in the instant case the Adjudicating Officer deals with the contravention of aforementioned provisions of the Act and the rules, directions or order made thereunder and upon adopting the procedure laid down in section 23E, which eventually are those of a Civil Court, imposes a penalty in terms of money. Although, in different cases different adjudicating officers have been empowered to pass orders, but a distinct and conspicuous feature that can be marked in these provisions is that in any case the act does not empower them to impose fine or imprisonment in lieu of the penalty. The provisions for recovery of penalty provided in section 23J does, at the most, empower recovery of penalty through Collector of the District as arrears of land revenue, but this section does not by itself equate the penalty with fine nor does it provide any imprisonment in lieu thereof. It may be noted that "penalty" by no stretch of imagination, can be treated as "fine" within the meaning of section 53, P.P.C. unless a statute, by necessary intendment and in specific terms treats it a fine. It is on account of such legal concept of punishment that the Legislature has, in express terms, made the other contraventions covered by subsection (1) of section 23 of the Act (not excluded through the amendments made by Act VI of 1987) punishable with imprisonment and/or fine. Essentially the present case possesses distinguishing features.

11. The provisions of subsection (2) of section 5 of the Code of Criminal Procedure are relevant in this context for the purpose of determining the question whether thg Code of Criminal Procedure would be applicable to a Forum/Tribunal constituted under a special statute or not. These provisions are reproduced as under:‑‑ "

1. Short title: commencement.‑‑‑(1) This Act may be called the Code of Criminal Procedure, 1898. (2) Extent.‑‑‑It extends to the whole of Pakistan; but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

5. Trial of offences under Penal Code.‑‑ (1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) Trial of offences against other laws.‑‑ All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

12. A joint reading of these provisions would indicate that the Code of Criminal Procedure is not applicable to the matters governed by any special or local law unless there is a provision expressly' making the Code applicable to such special or local law wholly or to any extent. Indeed, after the aforementioned amendment through Act VI of 1987 the application of Code of Criminal Procedure within the meaning of sub section (3) of section 23‑A of the Act extends only to the Tribunal constituted under section 23‑A which essentially is the Sessions Judge exercising the powers under the Code of Criminal Procedure within the territorial limits of his jurisdiction and would not extend to the forum of Adjudicating Officer established under section 23‑B and the Appellate Board constituted under section 23‑C of the Act. An express and specific provision laying down the applicability of the Code of Civil Procedure, 1908 under section 23 of the Act is by itself sufficient and by no sound reasoning the Code of Criminal Procedure could be applicable to these forums overlooking the express provisions of law.

13. The wisdom behind making such contravention punishable with penalty only and by laying down a moderate machinery for the purpose of adjudication of such case and recovery of penalty under section 23J of the Act is manifest from the scheme of introducing these amendments. To my mind it seems, the commercial morality and the free and liberal commercial and industrial business transactions could be the main object of excluding the contravention of aforementioned provisions of the Act from the purview of a Criminal Court and bringing them within the domain of a Forum/Tribunal exercising the powers of a Civil Court so that the lapses in terms of money be treated as defaults of civil nature and dealt with accordingly. The commerce, trade and industry spreads over a number of business transactions and the ordinary lapses on the part of businessman or industrialist shall not so oftenly be treated as crimes unless the mens rea to perpetrate a crime and commit fraud, mischief or misappropriation of money, criminal breach of trust etc. and loss to public exchequer is evidence in unequivocal terms. Irrespective all this, as already discussed, the adjudication of the aforementioned contravention has intentionally been brought within the domain of Code of Civil Procedure, the Adjudicating Officer, therefore, cannot be treated as a Criminal Court. In result of the foregoing discussion I am inclined to hold that the Adjudicating Officer constituted under section 23‑B and the Appellate Board constituted under section 23‑C are neither criminal Courts nor Courts of inferior jurisdiction within the meaning of section 435, Cr.P.C. Even if the Adjudicating Board has used the terminology of 'charge' and 'conviction' the proceedings are manifestly beyond criminal jurisdiction of this Court under sections 435/439, Cr.P.C. The instant application under the aforesaid provisions of Code of Criminal Procedure is not maintainable and is, therefore, dismissed. N.H.Q/G‑129/K Revision petition dismissed.