MUHAMMAD HASHIM vs PRESIDING OFFICER, SPECIAL BANKING COURT, SINDH
This constitutional petition impugned the conviction order dated 15-11-2005 passed by the Special Banking Court, whereby the appellant was convicted under Section 471 of the Pakistan Penal Code 1860 in relation to proceedings connected with the Banks (Special Courts) Ordinance 1984. The core legal question was whether a constitutional petition is maintainable against a conviction when an efficacious statutory remedy of appeal is available under the law. The court held that since an effective remedy of appeal is provided under Section 10 of the Banks (Special Courts) Ordinance 1984, the constitutional jurisdiction of the High Court cannot be invoked. However, exercising its power to convert proceedings to grant relief to an aggrieved person, the court ordered that the constitutional petition be treated as an appeal under Section 10 of the said Ordinance, and called for the appellant's jail roll to consider the suspension of sentence. The key principle laid down is that constitutional jurisdiction cannot be invoked when an adequate and efficacious statutory appellate remedy is available, though the court may convert a petition into an appeal to prevent prejudice.
- Is a constitutional petition maintainable against a conviction passed by a Special Banking Court when an appeal is provided under the law?
- Can a constitutional petition challenging a conviction order be converted into a statutory appeal?
- What is the effect of the availability of an efficacious statutory remedy on the writ jurisdiction of the High Court?
- Section 471, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 10, Banks (Special Courts) Ordinance 1984
ORDER
1. ' The instant petition has impugned the conviction order dated 15-11-2005 whereby the appellant Muhammad Hashim stood convicted to R.I. For four years and fine of Rs,31,15,245.50 and in lieu thereof S.I. For one year more. He was further convicted under section 471, P.P.C. To undergo R.I. For one year and fine of the similar amount and in lieu thereof S.I. For 3 months more; benefit of section 382-B was also extended to him.
2. ' It was contended by the learned counsel that the instant proceedings are coram non judice and the Special Banking Court (Offences in Banks) Sindh, Karachi had no jurisdiction. It was contended that the alleged act of omission and commission if at all are triable by the commercial Courts for which proceedings are pending. In support of his contention he has placed reliance on 1999 SCM R 1881 (Khalid Mehmood v. Collector of Customs); PLD 2003 Karachi 83 (Messrs Phoenix Mills Ltd. And others v. City District Government Karachi and others); Ordinance V of 1980 of Imports and Exports (Control) (Amendment) Ordinance, 1980 and the case of Export Promotion Bureau v.
3. Mrs. Bilqees and another in Complaint No,3 of 2003 instituted in the Commercial Court Sindh at Karachi.
4. ' We have heard learned counsel and examined the record. On 23-2-2006, petitioner was called upon to satisfy the Court as to maintainability of the petition. It was contended that the petition is maintainable and the right of appeal is not efficacious remedy. It may be observed that the petitioner stood convicted for an offence in respect of the Banks (Special Courts) Ordinance 1984.
5. Right of appeal in terms of section 10 thereof is provided to a person aggrieved by the sentence passed within 30 days of passing of such sentence. The writ jurisdiction of this Court could be invoked only if the Court is satisfied that no other adequate remedy is provided under the law. In the instant case, admittedly, effective remedy of appeal is provided under the law.
6. ' In the case of Khalid Mehmood v. Collector of Customs (1999 SCM R 1881) the apex Court observed that in cases where the High Court or the Supreme Court was repository of the ultimate appellate, evisional or referral power, conferred nder the special enactment then the onstitutional jurisdiction of the Court may of be invoked. Such principle squarely pplies in the instant case. We are, herefore, not inclined to entertain the writ petition in respect of the conviction recorded by the Special Banking Court (Offences in Banks) Sindh at Karachi.
7. ' However, there are ample authorities to support the view that where the Courts have otherwise the jurisdiction one proceeding can be converted into another proceeding so as to extend the relief to an aggrieved person. Accordingly, we treat this petition as an appeal under section 10 of the Ordinance of 1984.
8. ' It is stated at the bar that the appellant (petitioner) is behind bars for considerable time, we would call for the jail roll of the appellant. In case the appellant has served out the substantial sentence the case of suspension of sentence may be considered on the next dated. Let jail roll be called and may be placed in Court. Since it involves liberty of a person the matter is adjourned to 18-5-2006.