2017 PLP 386 (YLRN)

MUHAMMAD QASIM KHAN, J.

The appellant filed Writ Petition No.23404 of 2014 seeking quashment of FIR No.07 of 2014 dated 18.08.2014 under sections 32(1), 32(3A), 32a, 79, 156(1), 14, 14A and 46 of the Customs Act, 1969, sections 3, 6(1) & 33(5) of the Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, 2001 registered at I & P Cell, Dry Port, Mughalpura, Lahore, on the ground that financial liability of the appellant has to be determined through adjudicatory process of the customs department and no FIR without adjudication could be lodged. The writ petition was dismissed by learned single Judge in chamber vide order dated 20.04.2015, mainly on two grounds, firstly, that appellant could be proceeded simultaneously by registration of a criminal case and can be adjudicated by the departmental authorities, secondly, partial quashment of FIR is not permissible, hence, this Intra Court Appeal.

2. Learned counsel for the appellant was confronted that in the light of case "Nawazul Haq Chowhan v. The State and others" (2003 SCMR 1597), how the Intra Court Appeal, is maintainable?

3. In response to the court query, learned counsel for the appellant submits that under Section 3 of the Law Reforms Ordinance, 1972, Intra Court Appeal against the judgment of learned single Judge in chamber is competent, and the only bar in the way of Intra Court Appeal is availability of right of appeal, revision or review against the original order, but no such remedy against registration of FIR, is available, hence, the Intra Court Appeal, is maintainable.

4. On the other hand, learned Law Officer submits that Intra Court Appeal against a judgment in a writ petition for quashment of FIR is not maintainable.

5. Heard.

6. On the recommendations of Law Reforms Commission 1967/70, the Law Reforms Ordinance, 1972 was promulgated. Its section 3 provides right of appeal against the judgment of single Judge in chamber but with certain restrictions. Firstly, any decree passed or final order made by a learned single Judge in exercise of its original civil jurisdiction is appealable before two or more judges of the High Court; secondly, an appeal is maintainable before a Bench of two or more Judges if the original order arises out of proceedings assailed before the learned single Judge under Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973, but again the order made under Article 199(1)(b)(i) of the Constitution, is not appealable and the other embargo on the appeal is that if any order passed by learned single Judge arises out of any proceedings in which the law applicable provides at least one appeal, or one review or one review to any Court, Tribunal or authority against the original order. Sub-section (3) of Section 3 of the Law Reforms Ordinance, 1972 also restricts an Intra Court Appeal against interlocutory orders or an order which does not dispose of the entire case.

7. The word "proceedings" has been used in Ist proviso to Section 2 of the Law Reforms Ordinance, 1972. Proceedings mean institution or carrying on of any action of law. Generally, "proceedings" is the factum and manner of conducting judicial business before a court, or judicial officer including all possible steps in an action from its commencement to execution of a judgment. As the word "proceedings" has not been defined in Criminal Procedure Code and is a very comprehensive term and generally includes a prescribed course of action for enforcement of a legal right, which would essentially involve requisite steps by which judicial action is invoked. "Proceedings" would include even a step taken towards furtherance of a cause before a court or tribunal, where it might be sub judice. It is a step towards an objective to be achieved.

8. The word "proceedings" has been defined in the cases "Noor Muhammad v. Member (Judicial) Board of Revenue, Punjab Lahore and 4 others" (PLD 1986 Lahore 237), as under:--

6. The word 'proceeding' has a wider meaning than the word `case'. According to Prem's Judicial Dictionary, Vol. III, 1312, 1964 Edn. "'proceeding' is a word with a larger meaning than action' ". It is further stated at page 1310 "the word 'proceeding' can be given a narrow or a wide import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language of the enactment in which it appears. It may in some enactment mean an action or that which initiates an action and in others enactments it may also mean a step in an action". Reference is also made therein to Pryor v. City Offices Co. ((1883) 10 BD 504), wherein the phrase 'in any proceeding' was construed as a general phrase meant to cover every step B in an action and is equivalent to the word `action' ". In Halsbury Laws of England Vol. I, Page 5, para. 7, it is laid down, "the term 'proceedings' is frequently used to denote a step in an action". In Shorter Oxford Dictionary, it is defined as "doing a legal action or process ; any act done by the Authority of a Court of Law." The Concise Oxford Dictionary gives the meaning of the word 'proceedings' as used in legal sense as "steps taken in legal action". According to Webster's New International Dictionary, when used in law in the plural, it means : course of procedure in action at law ; any step or act taken in conducting litigation.

9. The Hon'ble Supreme Court of Pakistan in the case "The State through Advocate-General N.-W.F.P., Peshawar v. Naeemullah Khan" (2001 SCMR 1461), after deep analysis and study, comprehensively defined the word "proceedings" in the following terms:-- "According to Chambers English Dictionary, 7th Edition, the word 'proceeding' means:-- "a going forward: progress: advancement: a course of conduct: perh. An advantage: a step: an operation: a transaction: a record of the transactions of a society." According to Legal Thesaurus, Regular Edition, by William C. Burton, the word 'proceeding' means:-- "action, action, action at law, case, cause, conduct of a lawsuit course of an action at law, dispute, hearing, lawsuit, legal action, legal procedure, litigation, matter, performance, prescribed method of action, prescribed mode of action, procedure, process prosecution, series of events, step, steps in the prosecution of an action, suit, suit at law, transaction, trial undertaking. " According to Law Lexicon Volume-II, the word 'proceeding' means:-- "Proceeding in a general sense means 'the form and manner of conducting judicial business before a Court of judicial officer'. It can include within itself suit, appeal and second appeal Ram Narain v. Urmila 1980 All 344(6). The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in the series of all connected by intrinsic unity and are to be regarded as one legal." The meaning of the word 'proceeding' according to American Publication "Words and Phrases" at page 83, are as under:-- "The term 'proceedings' is a very comprehensive term and, generally speaking', means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which judicial action is invoked. A 'proceeding would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in motion in order to take cognisance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment." In the same judgment, the Hon'ble Supreme Court of Pakistan after examining the definition of word "proceedings" with reference to the case law "Satyahari v. The State" (AIR 1953 Calcutta 661), "Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others" ( PLD 1968 Lahore 1455), "Ghulam Muhammad v. The State" (PLD 1979 Quetta 1) and "Muhammad Farash Khan v. Nishadar Jan" (PLD 1983 SC (AJ& K) 43, held: "Keeping in view the literary meaning and the, interpretation of the word 'proceedings' as interpreted in various pronouncements give above, we are of the opinion that the word 'proceedings' is a comprehensive expression which includes every step taken towards further progress of a cause in Court or Tribunal, from its commencement till its disposal. In legal terminology the word "proceedings" means the instituting or carrying on of an action of law . Generally, a 'proceedings' is the form and manner of conducting judicial business before a Court or judicial officer, including all possible steps in an action from its commencement to the execution of a judgment in a more particular sense it is any application to a Court of justice for aid in enforcement of rights, for relief, for redress of injuries, or damages or for any remedial object. It in its general use comprehend every step taken or measure adopted in prosecution or defence of an action."

10. The term "original order" and the word "proceedings" used in section 3 of the Law Reforms Ordinance, 1972 were elaborately discussed by the Hon'ble Supreme Court of Pakistan in the case "Mst. Karim Bibi and others v. Hussain Bakhsh and another" (PLD 1984 SC 344), as under:- "After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal , against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more fudges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue PLD 1979 SC 846, in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term "proceedings". An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others P L D 1968 Lah. 1455, was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term "proceedings" in the book "Words and phrases" which may usefully be reproduced as under; "The term 'proceedings' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective, to be achieved, say for instance the judgment in a pending suit. The proceeding, commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible -steps in the action under the law, from its commencement to the execution of the judgment."

11. After analytical study of word "proceedings, with reference to dictionaries and considering the interpretation of the said word by the Hon'ble Supreme Court of Pakistan in the above referred cases, we have no doubt in our mind to hold that the word "proceedings" in fact carries a vast manifestation covering almost every stage heading towards advancement of an issue before a court or tribunal, right from its inception till its conclusion. In legal parlance this word would mean institution, continuation and conclusion of an action in law. To be more precise, the word "proceedings" would connote the manner in which judicial business is to be carried out before a court, tribunal or judicial officer, including all steps and actions right from commencement of such judicial business, its determination and then its implementation or execution. Whereas, the F.I.R., being just first information report about commission of an offence, does not carry such significance so as to be covered by the scope of word "proceedings." Hence, the Intra Court Appeal against an order for quashing of FIR or refusing to quash an FIR passed in a writ petition, is not maintainable.

12. The precise question as to whether or not an Intra Court Appeal lies against an order passed in a writ petition by a learned single Judge and as to whether or not the word "proceedings" mentioned in section 3(2) of the Law Reforms Ordinance, 1972 includes an FIR, came under consideration before the Hon'ble Supreme Court of Pakistan in the case "Nawazul Haq Chowhan v. The State and others" (2003 SCMR 1597), and it was conclusively held that:- "On this aspect of the matter, we have given our anxious consideration to the contentions raised at bar. The above controversy have been resolved by this Court I the case of Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344) and Settlement Commissioner (L) and others v. Mauj-Din and others" (1989 SCMR 1351) while holding that in view of section 3(2) of the Law Reforms Ordinance, 1972, I.C.A. is not maintainable." In this respect, reliance is also placed on the case "Pervaiz Akhtar and 3 others v. The State through Circle Officer Anti-Corruption Department T.T.Singh" (2005 P.Crl.L.J 1219), "Manzoor Ahmad and 2 others v. Muhammad Nawaz and 18 others" (PLD 2013 Lahore 123) and "Ahmad Yar v. Station House Officer, Shah Kot, District Sahiwal and 8 others" (2007 PCr.LJ 1352).

13. For what has been discussed above, the instant Intra Court Appeal is held to be not maintainable and is dismissed accordingly. ZC/H-14/L Appeal dismissed.