M/s. APPOLO TEXTILE VS SONERI BANK LTD. etc.

PLJ 2021 Lahore (Note) 40 Present: ABID AZIZ SHEIKH AND SHAHID KARIM, JJ M/s. APPOLO TEXTILE--Petitioner versus SONERI BANK LTD. etc.--Respondents W.P. No. 21358 of 2009, decided on 26.5.2016.

Constitution of Pakistan, 1973-- ----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 249, 265-K &, 561--Institution of criminal complaints--Issuance of summons--Quashment of complaints--Banker customer relationship--Jurisdiction--Maintainability--Availability of alternate and efficacious remedy-- Challenge to--Jurisdiction of High Court under Art. 199 of Constitution in quashing of complaint and criminal proceedings is not to be exercised in routine or as a matter of course merely because such jurisdiction is available but exercise of judicial review is depended on non-availability of alternative and efficacious remedy--Once special court took cognizance of matter, aggrieved party can approach Special Court at any stage of trial under Section 265-K & 249-A, Cr.P.C. to show that charges are groundless or that there is no probability of accused being convicted of any charge and Court may record acquittal of accused-- Jurisdiction of High Court for qashment of proceedings under Art. 199 of Constitution being akin to Section 561-A, Cr.P.C., same principle will apply in writ jurisdiction--Constitutional jurisdiction of High Court in quashing of complaint and proceedings should not be followed unless some extra ordinary circumstances are shown to exist to abandon regular course and to follow exceptional route of constitutional jurisdiction--Petition dismissed. [Para

6, 7 & 9] A, B & C

PLD 2016 SC 55, 2002 SCMR 1076 & PLD 2004 SC 298 ref.

Mr. Shahid Ikram Siddique, Advocate, Rana Muhammad Asif Advocate, Haq Nawaz Chattha Advocate, Usman Ali Cheema Advocate, Mian Asghar Ali Advocate, Sh. Aftab Umer Advocate, Niaz Ali Sheikh Advocate, Mudassar Shuja Advocate, Iftikhar Ahmad Khan, Advocate, Mian Sultan Tanvir Ahmad Advocate, Ch. Nabeel Rafaqat Advocate, Mr. Omar Tariq Shamim Advocate, Ms. Yasrub Gulzar Advocate, Ch. Sohail Khurshid Advocate, Mr. Babar Murtaza Khan Advocate, and Rana Awais Tauseef Advocate for Petitioners. Mr. Imran Aziz, DAG, Mr. Muhammad Riaz Malik Advocate, Mr. Jahangir Inam Advocate, Mr. Adnan Shuja Butt Advocate, Mr. Muhammad Khalid Rana Advocate, Mr. Andaz Jilani Khan Advocate, Mr. Tahir Bashir Advocate, Mr. Omar Tariq Shamim Advocate, Mr. Saif-ur-Rehman Advocate, Mr. Muhammad Asif Ismail Advocate, Mr. Ahsan Masood Advocate, Muhammad Younas Advocate, Mr. Tahir Lateef Sheikh Advocate, Sheikh Muhammad Nasir Mehmood Advocate, Ch. Muhammad Aslam Advocate, and Barrister Saad Waraich Advocate for Respondents.

Date of hearing: 26.5.2016.

JUDGMENT

ABID AZIZ SHEIKH. J.--This judgment shall also decide writ petitions No. 5335/2009, W.P. No. 18166/2011, W.P. No. 6847/2011, W.P. No. 22010/2013, W.P. No. 22011/2013, W.P. No. 22012/2013, W.P. No. 22013/2013, W.P. No. 22015/2013, W.P. No. 27326/2015, _W.P. No. 39118/2015, W.P. No. 39791/2015, W.P. No. 39797/2015, W.P. No. 35708/2015, W.P. No. 7331/2016, W.P. No. 11753/2016, W.P. No. 8409/2016, W.P. No. 11924/2016, W.P. No. 9839/2016, W.P. No. 12501/2016, W.P. No. 13770/2016, W.P. No. 15850/2016, W.P. No. 13821/2016, W.P. No. 13845/2016, W.P. No. 13855/2016, W.P. No. 14175/2016, W.P. No. 15769/2016, W.P. No. 15772/2016, W.P. No. 15880/2016 and W.P. No. 9842/2016 as similar questions of law and facts are involved in these writ petitions.

2.In all above mentioned writ petitions, the petitioners are seeking quashment of complaints and ensuing proceedings before the Special Court (Offences in Respect of Banks) Lahore (hereinafter referred to as Special Court). The facts common in all writ petitions are that petitioners entered into Banker Customer Relationship with respondent banks. The said banks instituted criminal complaints against the petitioners under the “Offences in Respect of Banks” (Special Courts) Ordinance, 1984 (hereinafter referred to as Ordinance, 1984). The Special Court took cognizance of the complaints and issued summons to the petitioners. The petitioners being aggrieved filed these constitutional petitions seeking quashment of complaints and proceedings before Special Court.

3.Learned counsel for petitioners argued that allegations in all complaints are covered under Section 20 of the Financial Institutions (Recovery of Loan) Ordinance, 2001 (Ordinance, 2001), therefore, under Section 7(4) of the Ordinance, 2001, exclusive jurisdiction in the matter is with the Banking Court and not with Special Court. They referred to Section 7(b) of Ordinance, 2001 to argue that Banking Court shall have power as vested in Court of Sessions and further Section 7(2) of Ordinance, 2001, provides that Banking Court will follow procedure of Criminal Procedure Code 1898. Learned counsel contends that Ordinance, 2001, being special law and complete code with remedies for recovery of money and prosecution of offences, will override the general law of Ordinance, 1984 and thus Special Court has no jurisdiction in the matter. Further submits that unlike provisions of Ordinance, 1984, Section 4 of the Ordinance, 2001 provides that this law will have overriding effect on any other law and therefore, offences which are covered under Section 20 of the Ordinance, 2001 can only be tried by Banking Court and not by Special Court. On the question of maintainability of these petitions, in presence of alternative remedy before Special Court under Section 265-K & 249-A of Criminal Procedure Code, 1908 (Cr.P.C.) they argued that because Special Court has no jurisdiction to take cognizance of the matter therefore, remedy of Section 265-K and 249-A, Cr.P.C. is neither adequate nor efficacious remedy. They further submit that in order to approach Special Court under Section 265-K and 249-A, Cr.P.C., the petitioners will have to first submit bail bonds which procedure is not only cumbersome but also harsh and amounts to deprive the petitioners

from access to justice. Learned counsel for petitioners placed reliance on “director general. FIA and others versus Kamran Iqbal and others” (2016 SCMR 447), “Rehmat Sindhu and 5 others versus The State and 3 others” (1999 MLD 1632), “Muhammad Measum and others versus Federation of Pakistan through Secretary and others” (2015 PTD 702), “Ch. Pervez Elahi versus The Federation of Pakistan through Secretary. Ministry of Interior. Islamabad and 3 others” (1995 MLD 615) and “Mian Hamza Shahbaz Sharif versus Federation of Pakistan etc” (NLR1998 Criminal 103).

4.Learned counsel for respondents at the very outset raised preliminary objection that as petitioners have adequate alternative remedies by way of filing application under Section 265-K & 249-A, Cr.P.C. before the Special Court, therefore, these petitions for quashment of complaints and proceedings are not maintainable. Further submits that similar Writ Petition No. 39992 of 2015 and Criminal Revision No. 711 of 2015, the Division Bench of this Court has already referred the matter to the Special Court for decision of application under Section 265-K, Cr.P.C. On merits, the learned counsel for the respondents argued that Section 20(1) of the Ordinance, 2001 specifically provides that offence under Section 20 will be punishable without prejudice to any other action which may be taken under the ordinance or any other law for the time being in force. Submits that above language of Section 20(1) has taken away the exclusivity of Ordinance, 2001 provided under Section 7(4), therefore, Special Court under Ordinance 1984 is not precluded to take cognizance of the matter and proceed with the complaints. Further submits that offences specified under Section 20 of the Ordinance, 2001 are narrow in scope whereas schedule offences under the Ordinance, 1984 are not only different in language but same are also much wider in their import. They therefore, argued that merely because a particular act which falls within the schedule offences of Ordinance, 1984 also come under the scope of Section 20 of the Ordinance, 2001, the jurisdiction of Special Court will not be excluded automatically. To elaborate they submit that allegations of criminal breach of trust and removal of pledged stock by way of theft, are not covered under Section 20 of the Ordinance, 2001 and therefore, for these offences complaints under Ordinance, 1984 are proceedable before Special Court. To support their contentions, reliance is placed on “Muhammad Naveed Anwar versus Security and Exchange Commission of Pakistan through Director NBFC’s Deptt. Islamabad” (2014 SCMR1376).

5.We have heard the arguments of learned counsel for the parties and perused the record with their able assistance.

6.Before touching merits of the case, we would like to dilate upon the question of maintainability of these petitions in the wake of alternative remedy available before Special Court under Section 265-K & 249-A, Cr.P.C. It is not disputed that on complaints filed by the respondent banks, the Special Court not only took cognizance of the matter but also issued summons to the petitioners. The jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) in quashing of complaint and criminal proceedings is not to be exercised in routine or as a matter of course merely because such

jurisdiction is available but exercise of judicial review is depended on non-availability of alternative and efficacious remedy. Once the Special Court took cognizance of the matter, the aggrieved party can approach the Special Court at any stage of trial under Section 265-K & 249- A, Cr.P.C. to show that the charges are groundless or that there is no probability of the accused being convicted of any charge and the Court may record acquittal of the accused. The question that particular complaint is not maintainable for lack of jurisdiction before Special Court is indeed a ground covered under the scope of Section 265-K & 249-A, Cr.P.C.

7.The Hon’ble Supreme Court in “Muhammad Farooq versus Ahmed Nawaz Jigirani and others” (PLD 2016 Supreme Court 55) while discussing and comparing remedy of 265-K and 249-A, Cr.P.C. with remedy before this Court under Section 561-A, Cr.P.C., held that where two Courts have co-extensive or concurrent jurisdiction then propriety demands that jurisdiction of the Court of the lower grade is to be invoked in the first instance. The jurisdiction of this Court for qashment of proceedings under Article 199 of the Constitution being akin to Section 561-A, Cr.P.C., the same principle will apply in writ jurisdiction. August Supreme Court in Muhammad Farooq case, supra, while relying on “Maqbool Rehman versus The State and others” (2002 SCMR 1076) and “Bashir Ahmad versus Zafar-Ul-Islam and others” (PLD 2004 SC 298), held that remedy under Section 249-A and 265-K, Cr.P.C. are adequate remedies and in absence of some extra ordinary circumstances, such alternative remedies cannot be by-passed. The relevant extract from the above judgment is reproduced hereunder: “Even if the contention of Mr. Shahadat Awan, learned ASC for the respondents is taken, on its face value that inherent jurisdiction under Section 249-A, Cr.P.C., and or under Section 265-K, Cr.P.C. as the case may be, therefore, no exception to the exercise of such jurisdiction by the High Court in the instant case could be taken, the contention of preposterous. As observed above, it is not the question of taking any exception to the exercise of inherent jurisdiction by the High Court. It is matter of regulating the exercise of inherent jurisdiction available with the High Court. It is now well entrenched legal position that where a power is coextensive with two or more Courts, in ordinary circumstances, propriety demands that the litigant must first seek remedy in the Court of the lowest jurisdiction. Mr. Shahadat Awan does not dispute that learned trial Court was seized of jurisdiction under Section 249-A, Cr.P.C. No special and or extraordinary circumstances were either pleaded or considered by the learned Judge in Chambers in the High Court, while exercising its inherent jurisdiction Section 561-A, Cr.P.C.”. The Hon’ble Supreme Court in “Director General. Anti-Corruption Establishment. Lahore and others versus Muhammad Akram Khan and others” (PLD 2013 Supreme Court 401), held that once trial Court has taken cognizance of the offence, the F.I.R. registered cannot be quashed and in case accused person wishes to avoid the rigorous of trial, then remedy for him is to approach trial Court under Section 249-A or 265-K, Cr.P.C. The relevant observations are reproduced as under:

“The law is quite settled by now that after taking of cognizance of a case by a trial Court the F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court itself. It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction”.

Supreme Court of Pakistan in “The State through Advocate-General, Sindh High Court of Karachi versus Raja Abdul Rehman” (2005 SCMR 1544) and subsequently in “Haji Sardar Khalid Saleem versus Muhammad Ashraf and others” (2006 SCMR 1192) while discussing scope of writ under Article 199 of the Constitution held as under: “Mere mentioning of Section 489-F in the F.I.R. is no ground to quash the F.I.R. by the learned High Court while exercising power under Article 199 of the Constitution without adverting to the contents of the F.I.R. and other offences mentioned therein. The respondent had alternative remedy to raise objection at the time of framing charge against him by the trial Court or at the time of final disposal of the trial by the trial Court after recording the evidence. Even otherwise, respondent has more than one alternative remedies before the trial Court under the Criminal Procedure Code i.e. Section 265-K or 249-A. This fact was also not considered by the learned High Court. In case the contents of the writ petition and the F.I.R. are put in juxtaposition then it brings the case of Respondent No. 1 in the area of disputed question of fact which cannot be decided by the learned High Court in constitutional jurisdiction which requires investigation and evidence of the parties to be recorded by the trial Court”.

9.The constitutional jurisdiction of this Court in quashing of complaint and proceedings should not be followed unless some extra ordinary circumstances are shown to exist to abandon the regular course and to follow the exceptional route of constitutional jurisdiction. In present case merely because petitioners have to submit bail bonds, is by no mean are exceptional circumstances, to circumvent the adequate and efficacious alternative remedies available to the petitioners under Section 265-K and 249-A, Cr.P.C. We have also gone through the case law relied upon by the petitioners and found it to be inapplicable to the facts and circumstances of these cases. In Kamran Iqbal case supra, the cognizance of the matter was not taken by any Court therefore, this precedent is not applicable to the present cases. In Rehmat Sindhu case, the petitioners admittedly filed application under Section 249-A, Cr.P.C. therefore, this case actually supports the contentions of the respondents. In Ch. Pervez Elahi case, the question of maintainability in presence of alternative remedy and judgments passed by august Supreme Court referred supra, were not discussed. In Mian Hamza Shahbaz Sharif case, it was held that remedy of 265-K will not be bar to the constitutional petition when circumstances show that accused would be handicapped in availing such remedy. No such exceptional circumstances are

shown in these petitions. Again in case of Muhammad Measum. matter was regarding quashment of F.I.R. and not of the proceedings before the Court where cognizance of the matter has already been taken, hence this case is also not relevant.

10.We have also noted that in identical matters, the Division Bench of this Court in Writ Petition No. 39992 of 2015 and Criminal Revision No. 711 of 2015 already dismissed similar cases on the ground that petitioners have alternative remedies before the Special Court by way of application under Section 265-K and 249-A, Cr.P.C. The petitioners are not in a position to distinguish their cases from above judgments passed by Division Bench of this Court.

11.In view of above discussion, we have no option but to dismiss above mentioned writ petitions being not maintainable. However, the petitioners will be at liberty to file appropriate applications under Section 265-K or 249-A, Cr.P.C. as the case may be, before the learned trial Court raising all their contentions including question of jurisdiction of Special Court. (Y.A.) Petitions dismissed