Imposition of fine

2021 CLC 2169 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.30-A& 29Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, Cls. 3 & 4Dissemination of false informationAdmission of guiltImposition of fineScope

Appellant through an appeal under S. 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, assailed order passed by Pakistan Electronic Media Regulatory Authority (PEMRA) whereby a fine was imposed on the appellant

Validity

Appellant had already recognized its unintentional mistake and had accepted the responsibility of the circumstances

Appellant could not be allowed to re-open the matter and dispute the facts which had already been acknowledged during proceedings before the Authority or Council or Complaints

Fine imposed by the Authority was within parameters and limitation of law

Appeal was dismissed.

2021 MLD 1642 ISLAMABAD Judicial Precedent

Ss.7 & 23(3)Access Promotion Rules, 2004, R.12Access Promotion Regulations, 2005, Reglns. 9(4) & 11AppealImposition of fineInternational telephony traffic data, non-providing ofUniversal Service Fund (USF), calculation deferring ofAppellant company was a licensee engaged in Long Distance and International Telecommunication System (LDI)

Pakistan Telecommunication Authority (PTA) imposed fine on appellant for its failure in providing information pertaining to international telephony traffic data and deferred calculation of USF

Validity

Requirement of providing accurate information to PTA regarding total number of minutes of incoming international telephony service that was carried by appellant and delivered to communication system of PTCL by the country of origin was not just an explicit requirement under R.12(1)(a) of Access Promotion Rules, 2004

Such was also a requirement under licence issued by PTA to appellant

Provision of inaccurate information by an LDI licensee to PTA was a contravention of explicit provision of Access Promotion Rules, 2004 and Access Promotion Regulations, 2005

Pakistan Telecommunication (Reorganization) Act, 1996 while deferring calculation of USF payable by appellant until the outcome of arbitration proceedings and decision of Court, could not have imposed fine under S.23 of Pakistan Telecommunication (Reorganization) Act, 1996

Fine under S.23 of Pakistan Telecommunication (Reorganization) Act, 1996, could be imposed where PTA determined that appellant had violated R.12(1)(a) of Access Promotion Rules, 2004 by misreporting number of minutes of incoming international telephony service

High Court directed PTA to return amount of fine deposited by appellant company and order of imposing fine was set aside

Appeal was allowed accordingly.

2020 CLD 433 COMPETITION COMMISSION OF PAKISTAN Judicial Precedent

Ss. 4 & 38Anti-competitive practicesShow cause notice, issuance ofImposition of fineState Compulsion, doctrine ofRegulatory Conduct DefenseApplicabilityNotice was issued to Pakistan Flour Mills Association (PFMA) for anti-competitive practices in market

Contention of authorities was that State Compulsion Doctrine or Regulatory Conduct Defense was not available to Association

Validity

PFMA was not requiring its members to comply with maximum cap determined by Government, in fact, PFMA was fixing one price for all millers and circulating same for compliance

By giving instructions to sell wheat flour at a fixed price, PFMA primarily took away bargaining power from retailers and consumers, vis-a-vis sale and purchase of wheat flour independently

Choice of different prices was not made available to end consumers and accordingly competition in relevant market was distorted

From correspondence available on record it was clear that PFMA platform was also used to discuss sensitive information vis-à-vis prices and supply of wheat flour in open market in year 2013 as well

State Compulsion, Doctrine of or Regulatory Conduct Defense was not available to PFMA as those were not actions of Government which had been circulated rather prices were determined by sharing statistics and other factors on platform of PFMA and subsequently circulated to its member mills for compliance

Government did not compel to circulate prices to flour mills therefore, PFMA had violated provisions of S. 4 of Competition Act, 2010

PFMA by fixing price of wheat flour, providing a platform to share commercially sensitive information and fixing quantities of production of wheat flour which had object of preventing, restricting or reducing competition within relevant market and same was to be condemned per se it was illegal and violative of S. 4 of Competition Act, 2010

Commission was empowered in terms of S. 38 of Competition Act, 2010 to impose such financial penalties upon contravening parties as it would deem fit in circumstances which could be up to Rs. 75 million or 10% of annual turnover of undertakings concerned

Commission imposed maximum fixed penalty of Rs. 75 million on PFMA to be deposited with Registrar of Commission

Competition Commission directed PFMA and all other parties to proceedings which included provincial food departments to be mindful of guidelines or directions while conducting future business and not to hamper competition in relevant market

Commission reprimanded PFMA and was directed to refrain from following, adopting, implementing or carrying out any activity which had constituted a violation of Competition Commission Act, 2010

Show cause notice was disposed of accordingly.

2018 PCrLJ 879 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 561 A & 344-A Penal Code (XLV of 1860), S. 381-A High Court (Lahore) Rules and Orders, Chapter 1.D, Para 15Theft of a car or motor vehicleImposition of fine

Quashing of proceedings Petitioner was facing trial before the Judicial Magistrate under S. 381-A, P.P.C.; non-bailable warrants of arrest were issued against him, against which he filed revision petitioner, which was accepted on cost of Rs. 5,000/- to be paid to the complainant under S. 344-A, Cr.P.C. read with chapter 1.D Para-15 of High Court (Lahore) Rules and Orders

Validity

Chapter 1.D Para-15 of High Court (Lahore) Rules and Orders related to the cost to be imposed on adjournment of the case

In the present case, cost was not imposed because of any adjournment but due to the conduct of the petitioner before the Trial Court

Circumstances established that revisional court failed to comprehend the meaning and spirit of relevant provisions of law and wrongly imposed the cost

Revision petition was accepted by setting aside the impugned judgment to the extent of imposition of cost.

2018 CLD 734 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Rr. 49(3)(4) & 63Securities and Exchange Commission of Pakistan Act (XLII of 1997), S. 34Imposition of fine

Chief Executive Officer of company (appellant) was aggrieved of order passed by Appellate Bench of Securities and Exchange Commission of Pakistan Exonerating Directors of Company and imposing penalty upon the Chief Executive Officer

Validity

Appellate Bench of the Commission wrongly let off the Directors who actually made decision and Chief Executive Officer was made scapegoat though he was not responsible for the actual decision making

Present was a matter of factual inquiry as to whether the Chief Executive Officer took steps to reverse and rectify the situation

Penalty could only be visited if there was contravention of any provision of Rules and not if contravention had already taken place and a person was not able to rectify the same; penalty was only to be imposed for actual contravention and not for lack of effort to correct or reverse the position

Chief Executive Officer could not have been penalised under R. 63 of Non-Banking Finance Companies (Establishment and Regulation) Rules, 2003

High Court set aside order passed by Appellate Bench of the Securities and Exchange Commission of Pakistan

Appeal was allowed accordingly.

2017 YLR 2031 ISLAMABAD Judicial Precedent

S. 376Criminal Procedure Code (V of 1898), S. 544-ARapeImposition of fineCompensation, award ofScope

Accused was convicted by Trial Court for committing rape with a minor girl and sentenced to imprisonment for ten years simple imprisonment without imposition of fine

Validity

Punishment provided under S. 376, P.P.C. was death, or imprisonment for either description for a term which shall not be less than ten years or more than twenty five years and shall also be liable to fine

In the present case, Trial Court awarded simple imprisonment for ten years without imposing any fine, which was mandatory

Conviction and sentence of accused was maintained, however fine of Rs.100,000 was also imposed, which shall be paid to the victim and in case of default in payment of fine, he shall further undergone simple imprisonment for six months

Appeal was dismissed accordingly.

2016 PLD 298 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 9, 10, 11, 17 & 33-EPenal Code (XLV of 1860), S.70Criminal Procedure Code (V of 1898), Ss.386 & 403Embezzlement, corruption and corrupt practicesImposition of fineDefault in payment of fineRecovery of amount of fine as arrears of land revenue

Points of difference, requiring opinion by the Referee Judge, were whether the amount of fine imposed by the Trial Court, could be recovered from the petitioners/accused persons, when they had served out not only substantive sentence of imprisonment but also imprisonment in default of payment of fine; who could recover the said fine and before which legal forum; whether such fine, could be recovered after six years of passing of sentence by the Trial Court, in terms of S.70, P.P.C. and whether recovery of such fine would amount to double jeopardy

Held, National Accountability Ordinance, 1999, was a special law, aimed to eradicate corrupt practices and hold accountable all those persons, accused of such practices and matter ancillary thereto

Punishment for the offence of 'corrupt and corrupt practices' had been provided under S.10 of National Accountability Ordinance, 1999, which was for rigorous imprisonment for terms extending to 14 years, and with fine and confiscation of tainted assets

Allowing the convicted person to undergo simple imprisonment in default of payment of sentenced fine, or the confiscation of tainted acquired property, would be against the spirit and aim of the Ordinance

General application of provisions of Criminal Procedure Code would not apply, when same were inconsistent with any provision of National Accountability Ordinance, 1999

Application of the provisions of Cr.P.C., were not to be blindingly followed by the Accountability Court under all circumstances

In view of insertion of S.33-E in the Ordinance, authority to recover the fine from a convicted person under the Ordinance vested with NAB

In view of distinct mode of recovery of sentenced fine prescribed under S.33-E of Ordinance, the general provisions provided for in S.386 of Cr.P.C., would not be applicable

Sentence of fine awarded by the Accountability Court in no circumstances could be condoned

Authority of the Trial Court to render reasons for issuance of warrant under S.386, Cr.P.C., had been deleted vide Law Reforms Ordinance, 1972

Mode adopted by NAB and the jurisdiction assumed by the Accountability Court for the recovery of sentenced fine, was without lawful authority

Recovery of the sentenced fine had to be recovered through the respective Revenue Collector under the enabling provisions of Land Revenue Act, 1967.

2015 PLD 204 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 30(1), 8(5), 30-APowers to vary conditions, suspend or revoke licenceSuspension of licence of Television ChannelImposition of fineShow-Cause noticeFair opportunity of hearingNatural justice, principles ofAppeal under S.30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002

Appellant, Television Channel impugned show-cause notice and subsequent order for suspension of licence and imposition of fine by the Pakistan Electronic Media Regulatory Authority ("Authority")

Contention of appellant was inter alia that the impugned order was bad in law and no proper and fair opportunity of hearing was provided to the appellant for presenting its stance

Held, that before passing of impugned order, a fair opportunity of being heard had not been provided to the appellant

Consequences suggested in the show-cause notice were such which could ruin the business of the appellant and therefore, it was their right to be heard properly and they should have been given a reasonable chance to defend themselves and present their point of view before the Authority

Said right did not mean that the Authority could not impose the penalty referred to in the show-cause notice or in the impugned order, but such an order could only have been passed if merits so demanded after providing of a fair, reasonable and proper opportunity of hearing to the appellant

Justice should not only be done but it should be seen to have been done

High Court observed that the Authority may proceed with the show-cause notices issued to the appellant, but before taking any final decision, appellant should be given a fair opportunity of being heard

High Court directed that whenever dates of such a hearing were fixed, sufficient time should be given to the appellant to prepare and appellant would be at liberty to take all legal and factual pleas before the Authority if there was any controversy with regard to the factual aspects of the matter; and in such a situation the parties should also have a right to lead evidence

Appeal was allowed, accordingly.

2013 MLD 872 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 514Forfeiture of bail bondImposition of finePrinciplesApproach of court should be dynamic and progressive orientated while imposing entire fine upon the surety

Nature of offence, efforts made by surety to produce the accused and financial position of surety might be taken into consideration while passing orders

Balance should be kept between undue severity and undue leniency

Undue severity might lead to unwillingness on the part of neighbours and friends to come forward and give surety for persons.