P L D 1993 Karachi 280 (PLP)

33. (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before . whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by law in force in (Pakistan) when such instrument was executed or first executed- Provided that-- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the. course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt,-- (a) (the Provincial Government) may determine what offices shall be deemed to be public offices; and (b) (the Provincial Government) may determine who shall be deemed to be persons in charge of public offices.

35. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent or parties authority to receive evidence, or shall bib acted upon, registered or authenticated by any such person or by any 'public officer, unless such instrument is duly stamped: Provided that- (a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna) only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a such equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement, shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence. in any proceeding is a Criminal 'Court, other than proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of (the Government), or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. 38. (1) When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector."

5. The Stamp Act is a fiscal statute and the rule of interpretation applicable to fiscal statutes is of strict construction and any ambiguity is to be resolved in favour of the subject. To put it differently, while interpreting a fiscal A statute, if there is a doubt about the meaning of any provision in such a statute, the Courts are to lean against a construction which imposes a burden on the subject.

6. Sections 17 and 18 of ' the Stamp Act may be considered as connected provisions, both specifying the time/period for stamping of instruments. Section 17 requires that all instruments executed in Pakistan chargeable with duty shall be stamped before or at the time of- execution. This section may be considered as the general section and section 18 may be considered as an exception to the general rule contained in section

17. Section 18 is restricted in its application to instruments (other than bills and promissory notes) executed outside Pakistan. It is obvious that since such instruments are executed outside Pakistan, the same cannot be stamped at the time of their execution. Section 18, therefore, provides that such documents may be executed within three months after they are received in Pakistan. It may be noted that the word 'may' has been used in section 18 as against the word 'shall' used in section

17. The use of the word 'may' in section 18 indicates that this is an enabling provision giving an option to have the instrument, executed outside Pakistan stamped within three months of its receipt in Pakistan. In my view, section 18 does not bar the stamping of an instrument in Pakistan before its execution, which instrument is executed outside Pakistan. Section 18 is an enabling provision and it does not directly or indirectly prohibit the stamping of a document, which is to be executed abroad, before its execution. It may be pointed out that there might be cases where initially it may be contemplated that the document is. to be executed in Pakistan and accordingly it is got stamped before its execution, though subsequently it may be found that the party who is to execute such document has gone abroad and hence it has to be got executed outside Pakistan.

7. Here reference may be made to a Single Bench decision in the case of Abdul Qayyum v. Zia-ul-Haq reported in PLD 1955 Sindh

239. In that case a document executed in Bharat, which bore a stamp of one rupee, was held, on the position being conceded by the counsel for both the parties, that as the document was imporperly stamped and it had not been stamped afresh in Pakistan, the document be impounded and sent to the Collector for realising the stamp duty and penalty to be determined under section 35 of the Stamp Act. In the said judgment, sections 17 and 18 were not considered in the manner done in the present case and the stamping had been done in Bharat and, therefore, it could not, be deemed to have been duly stamped under the Pakistan Law. In the circumstances, the said judgment, therefore, is not an authority for the proposition that a document duly stamped in Pakistan but executed outside Pakistan requires restamping after it is received in Pakistan.

8. In the circumstances, it is held that the power-of-attorney given by petitioner, Muhammad Salim, in favour of Muhammad Said does not require restamping in Pakistan after its receipt from UA.E., as the power-of-attorney was duly stamped in Pakistan before its execution abroad. In the circumstances, C.M.A. 2663/92 is granted and the bonds may be accepted and Succession Certificate, after its preparation, may be delivered to Muhammad Said, attorney of the petitioner, on proper identification. AA./M-1793/K Order Accordingly