Arif Kamal (Appellant) VS The State (Respondent)

IN THE HIGH COURT OF S INDH, KARACHI

Present:

Mr. I ustice Mohammail Kaim Khan Agha fustice Mr* Kausar Sultana Hussair

r Criminal Appeal No.44 of 2010

Appellant: Arif Kamat S/o. Syed Iqtidar Hueeain through Ms. Humaira Nadeem Rana, Advocate

Amicus{uriae appointed by the Mr. liaa- Ahme4 Advocate alw Court: Mr. Waqar Ahme4 Advocate.

For Respondent: State Life Insurance Corporation of Pakistan through Mr. Mukeeh Kumar Khatri, Advocate.

For State: Mr. Gul Faraz Khattak, Asaietant Attorney General

Criminal Appeals No.54 to 68 of 2010

AppeIIant: Dr. Shafqat Qamar S/o. Muneer Ahmed through Mre. Rana Khan, Advocate

Amicus-Curiae appointed by the Mr. lim Ahme4 Advocate a/w Courh Mr. Waqar I'hme4 Advocate.

For respondent: State Life lneurance Corporation of Pakietan through Mr. Mukeeh Kumar Khatri, Advocate.

For State: Mr. Gul Faraz Ktrattak, Aeeietant Attorney General.

Date of hearing: 72.71,2021, 79.11.2027 and 25.71.2U):1.

Date of announcement: 03.72.2021.

TUDGMENT

MOHAMMAD KARIM KHAN AGHA. Ir The a ppellant Aril Kamal S/o' SYed Iqtidar Hussain in criminal Appeal No.44 of 2010 has assailed the judgment datd, 22.01'.2010 passed by the Special Court (Offences in Banks) Sindh at Karachi in special Case No.03 of 2000, FIR No.1/2000 u/s. 420/Affi/4n/477- A/34 PPC r/w section 5(2) rcA-II, 1947 reglsteted at FIA ZCC Karachi and appellant Dr. Shafqat Qamar s/o. Muneer Ahmed in criminal Appeals No.64 to 68 of 2010 tns assailed the judgment dated 22.07'2070 passed by the Special b

Court (Offences in Banks) Sindh at Karachi in Special Cases No.03, 05, 06, 11 and L2 ot 2000, FIR No.1/2000 u/s. 420/468/471,/477-A/34 PPC r/w section 5(2) PCA-II, 1947 re$stered at FIA ZCC Karachi. Both the appellants were convicted and sentenced for the offence punishable u/ s 420 PPC one year (1 year) R.I each, , and to pay fine of Rs.50000/- (Rupees fifty thousand), and in default of payment of fine they have to further undergo S.I for ttuee months eaclL for offence punishable 468 Prc for seven years (7 years) R.I each and to pay fine of Rs.50000/- (Rupees Fifty thousand), and in default of payment of fine they have to further undergo S.I for twenty one months each, for the offence punishable u/ s 477 PPC for one year (1 year) R.I each, and to pay fine of RS.50000/- (Rupees fifty thousand), and in default of payment of fine they have to further undergo S.I for tlrree months each and for the offence punishable { s 477-A PPC for five years R.I each.

2.The brief facts of all these appeals are that the appellant Dr. Shalqat Qamar who was an employee of State Life Insurance Corporation of Pakistan (SLIC) prepared and approved fake and bogus insurance claims in one case in collusion and connivance with appellant Arif Kamal (private person-non banker) and in other cases in collusion and connivance with absconding co-accused Amjad Ali (private person-non banker) which cheques in respect of such fake and bogus forged claims were paid into bank accounts and withdrawn by a bogus beneficiary which caused loss to sLIC and hence sLIC lodged an FIR 7 / 20Oo fl s a20/ 468/ 47L- A Prc R/ w S.5(2) PC A tt 19 47 .

3.AIter completion of the usual investigation challon was submitted and charge was framed against the appellants to which they claimed to be innocent and denied the allegations and claimed to be tried.

4, The prosecution in order to prove its case examined M witnesses and exhibited various documents and other items, The statements of accused were recorded under section 342 Cr.P.C in which they denied all the allegations leveled against them. After appreciating the evidence on record the trial court judgment' convicted the appellants and sentenced them as set out earlier in this Hence, the appellants have filed these appeals against conviction'

5.The facts of the case as well as evidence produced before the trial court by find an elaborate mention in the impugned judgment dated22.0L.2010 passed

\oo the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6.At the very outset learned counsel for the appellants submitted that the ) learned Special Court (Offences in Banks) Karachi (the Special Court) had no jurisdiction to try the appellants for the offences for which they had been charged and convicted under the Offences in Respect of Banks (Special Courts) Ordinance 1984 (the Ordinance) which offences should have been tried by the Insurance Tribunal established under Section 727 oI the Insurance Ordinance 2000 and as such the Judgments should be set-aside and the appellants acquitted of the charge. In support of her contention she has relied on the cases of an unreported judgment of Mohammad Haehim vs. The Preeiding Officer (Special Banking Court), Karachi (Offences in Banks) and others passed by the High Court of Sindh at Karachi in (Criminal Appeal No.228 of 2006 & C.P. No. D-229 of 2006), Sikandar Ali vs. The State (1989 IrtCr.L] 613), Mushtaq Hussan Shah vs. The State (1986 Law Notes (Lahore) (91) and Shafique Anwar Qureshi vs. The State (PLD 1985 Jour. 56).

7.On the other hand learned Assistant Attorney General and learned counsel on behalf of SLIC have submitted that the Special Court had full jurisdiction to try all the offences against the appellants under the Ordinance as such offences fell squarely within the ambit of the Ordinance as banks were involved in the fraud and that in particular the Insurance Tribunal had no jurisdiction to try such offences and that they fulty supported the findings in the irnpugned judgments and that the appeals should be dismissed. In support of their contentions they placed reliance on the cases of The State vs. Ghulam Rabbani, etc. (NLR 1986 Criminal 265), A. Habib Ahmed vs' M'K'G' Scott christian and 5 others (PLD 1992 Supreme Court 353), Karachi College Teachers Co-operative Housing Society vs. judicial Magistrate XVI East Karachi and another (2011 YLR 1825), National Bank of Pakistan vs. Nazir Ahmed alias Kashif Nadeem (1995 SCMR 669), Allied Bank Limited through Authroised officer vs. sikandar Ali and 4 others (PLD 2013 Sindh 374) and Amiid Ali and another vs. The State and another (2013 YLR 548)'

8.Since this matter involved issues concerning jurisdiction, we had appointed Mt. ljaz Ahmed, Advocate as Amicus-Curiae in order to assist us in this matter. He made various submissions on the point of jurisdiction and f

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ultimately came to the conclusion that the Special Court did not have the jurisdiction to try the offences so charged based on the particular facts and circumstances of the instant case. In support of his contentions he placed reliance on A. Habib Ahmed vs. M.K.G. Scott Christian (PLD 1992 Supreme Court 353), I Allied Bank Limited vs. Sikandar Ali and 5 others (2013 CLD L339), Al Arfan Electronics Trading LLC vs. The State and 7 others (2012 YLR 353), Naeir Ali )att vs. The State (2011 YLR 255), Ch. Muhammad Asif vs. The State (2004 P Cr. L|464), Sikandar Ali vs. The State (1989 P Cr, LJ 613), Mushtaq Hussain Shah vs. The State (1986 P Cr. LJ 567), Ghulam Mustafa vs. Presiding Officer, Special Court (Offences Against Banks), Rawalpindi (2003 MLD 841) and Karachi College Teachers Co-operative Housing Society vs. Judicial Magistrate XVI East Karachi and another (2011 YLR 1825).

9.We have heard the parties, the learned amicus curiae and perused the record and considered the relevant laws including the case law cited at the bar.

10.Since the main issue in these appeals is whether or not the Special Court had the jurisdiction to try the offences for which the appellants were charged under the Ordinance we intend to address this issue fust as it is a common thread which runs through and impacts atl of the impugned judgments'

11.Although learned counsel for the appellants has argued before us that these matter should have been decided by the Insurance Tribunal established under the Insurance ordinance 2000 and that the special Court had no jurisd.iction to hear and decide these matters we do not consider that the issue before us is whether or not the matter should have been tried before the Insurance Tribunal established under the Insurance Ordinance 2000 or another court,/Tribunal established under any particular law but quite simply whether the court which kied and convicted the appellants had jurisdiction to try and decide the cases for the offences so charged. Namely the Special Court established under the Ordinance and if we find that the Special Court did not have the jurisdiction to hear the matter what are the legal consequences. on the other hand if we find that the special Court did have the jurisdiction to hear and decide these matters then we will hear each appeal separately and decide the sarne on merits

12.As is well known every criminal case is based on its own particular facts and circumstances and in this respect the facts and circumstances of this

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particular case are crucial to see if the offences so charged fall within the ambit of the Ordinance and are therefore hiable by the Special Court.

13.In the instance case the main accused was an employee of an insurance compiu:ly namely State Life Insurance Corporation (SLIC) who allegedly defrauded the insurance company by illegally authorizing claims to individuals/organizations which were then paid into bank accounts of individuals/ organizations and the same money was withdraurn by co-accused beneficiaries of the scam. None of the accused vrere bankers and there is no evidence on record that any person associated with any banking comPany played an illegal role in this fraud by for instance illegally opening bank accounts in the name of beneficiaries or knowingly allowing these bank accounts to be operated by illegal beneficiaries. The loss was caused to the insurance comPany and not to the banks or any of its customers,

74.Our starting point is the offences in Respect of Banls (Special Courts) Ordinance 1984.The Preamble to the Ordinance which usually sets out its object and purpose states as under;

"An ordinancc To prooide for speedy trial of ccrtain offences committeil in respect of banks andfot maltets connected thereuith or inciilental thercto.

WIIEREAS it is expedient to prwide for speedy trial of certain offences committed in respect of banks and'fot mattets connected thereutith or incideatal therct o ;...,,

15, The preamble reveals that the primary PurPose of the Ordinance was to deal with expeditious disposal of certain offences in respect of banks' 1,6. In the Ordinance Section 2 (a) defines 'ban*" as underi (") "bank" ha| the samc meaning as in the Banks (Nationalization) Act, 1'974 $JX of L974), and includes -

O a Scluduled Bank as defined in the State Bank of Pakistan Act,'L956 (XXXIII of 1.956);

(it the Pakistan lndustrial Credit and Inoestment Corporation, the lnaestruent corporafion of Pakistan, the Nahonat Deaelopment Finance Arporation, the Banl<crs Equi$ Limited and the National Inoestment Trust;

(iii)a Gooernment Saoings Bank to which the Gooernment Saaings Banks Act,1873 (V of1873), applies; and,

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(ia)such other company, institution or body as the Federal Gwernment may, by notifcation in the offrcial Gazttte, ileclare to be abankfor the purpo*s of this Ordinane;

17.A Special court as established under the Ordinance can try a "scheduled offence" which is defined at Section 2(d) of the Ordinance as under; t

(d)"scheiluleil offence" means an ofvna specifud in the First Schcilule and alleged to haoe been ammitted in respect, or in connecfion with the business, ofabank;

18.The First Schedule of the Ordinance is set out below for ease of reference;

(a)Any ffince punishable under any of the following sectbns of the Pakistan Penal Code (Act XLV of 1860), namelyr

Sections 403, 406, 408, 409, 467, 468, 471, 472, 473, 475 and 477-A;

(b)Any offena punishnble under this Ordinance; and

(c)Any attempt or consyiracy to commit, ol any abebrunt of, any of the aforesaid offences.

79.What is plain after considering the above sections are that the offences so charged against the appellants prima facie can be proceeded with by the Special Court under the Ordinance. Sub-'section @ of the First Section is important based on the particular facts and circumstances of this case as it includes conspiracy to commit and abettors which may involve bankers u'ho might not have been the master minds behind the scam but never the less facititated it by playing specific roles to enable the scam with the relevant actus and mens rea.

20.What is equally plain however is that SLIC is not a banking company as it does not carry on the business of banking as per section 5 (b) and (c) of the Banking Companies Ordinance 1962 (not has it been notilied by the Federal Government in the official Gazette as a bank for the PuPoses of this ordinance) which sub sections are set out below for ease of reference;

(b)"banking" mcAns the accepting, for the purPose - of lending ,or inaestmint, of deposits of money ftom the public, repayable o.n demand or otherwise, aid *ithdro*al by cheque, drafi, order or othcrwise;

(c)"banking company" means any conpany which transacts the businesi o7 Uai*lig in Pakistai and incluiles their branches and subsidiariei functioning outside Pakistan of banking companies incorp or ate d in P aki s tan' ;

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Explanation.- Ary company which is engaged in the manufacture of goods or carries ofl any trade and which accepts deposits of naney from the public merely for thc purpose of financing its business as such manufacturer or trader shall not be deemed to transact the business of banking within tlu meaning of this cl*use"' I 21,. SLIC is an insurance company which was established under Section 11 of the Li{e Insurance (Nationalization) Order 7972 to carry out the bueineee of life insurance which is a separate, distinct and different business from the business of banking. Furthermore, banking companies and the business of banking are regulated by the State Bank of Pakistan and the Banking Companies Ordinance 1962 whilst the SLIC and other LiJe Insurance companies in Pakistan are regulated by the securities and Exchange Commission of Pakistan keeping in view the Insurance Ordinance 2000.In respect of an insurance comPany and in particular SLIC not being a banking company reliance is placed on the case of Shafique Anwar Quershi V State (PLD 1985 ]our.55)

22.Since the complaint and the illegal acts have been carried out by Persons not engaged in the business of banking pima facie the ordinance does not apply to the appellants unless the offences so charged can be found to have been committe4 "in respect of or in connection with the business of a bank" so as to bring the offences so charged within the definition of a scheduled offence.

23.In the case of Mustaq Hussain Shah ve. The State (1986 P.Ct.Ll 567) t*dt*,'l^t decided_by the Lahore High Court in a case which was similar to the case in hand on facts but had not yet lead to a conviction where the members of the audit and accounts works department in Lahore through torgery inflated bills of a contractor and issued these in the name of a bogus firm which the banks enchased in the names of the said bogus firms opened by the bank it was held that the offences attracted did not fall within the jurisdiction of ttre Special Court despite the offences being scheduled offences because in essence the illegal activity did not relate to the business of banking in the following terms at Para's 7,8 and74;

I haoe gioen my seious thought to the points raised' As shown by subsection (1.) of section 4 of the Ordinancc, scheduled offences are exclusiaely mabte by this burt while subsection (6) of the,,said xction lays dowi by *oy if command of law thnt this Court shall not try an aiarced in rispeci oi a non-schedubd offence, found duing trial, -p haal- been committia byihe accu*d and slail try him only for-such ?ft"':' .if aflyt asis a scheiutcd one. A "scluiluled ofenu" has been dcfined in section 2(d) of the Ordinance.It reads as under:-

Qof "scheiluled ffince" means an ffince specifud in the First Schedule and allcged to how been committed in respect, or in connection zaith the business, of a bank."

In other words sdudulcd offence is an offence enumetated in First ) Schedule and committed eithcr in respect of a bank or in connection, with the business of a bank. The offences of P.P.C. enumerated in First Schedule of the Ordinance are ofences under xctions 403, 406, 408, 409, 467, 471, 472, 473, 475 and 477-A and any atteftryt or conspbacy to commit or any abetment of any of the aforesaid offences. Howeoer, under mandatory conditions laid down in thc latter pafi of *ction 2(d) of the Ordinance, the said offences or anyone ofthe said offettces shouldbe sudt as had been committed either in respect of the bank or in cpnrcction with the business of thc bank. Now offences in respects of the bank and ofences in connection with the business of tlu bank in my opinion mean such offences as hit the bank or its business financially or otherwix ot arc likely to hit eithcr of them in that way. lt is only when thex conditions are satisfied that this Court gets the juisdiction to try Persons accused of such offences.

8.I haoe scantud thex fincases in the light of the aboae defnition of a scheduled offence. On the basis of thc facts of thex fitte cases, the accused were chargedby the Special ludge (Central) for offence under section 467, P.P.C., rigarding forgrry of bills and ffince under section 471, P.P'C. regarding-their hiuing subtmitteil tluse bills knouting ttuy t: be fo-rged- aia 7or 6ffenu undcr-section 420, P.P.C. for haoing on the basis of said foryed biits got issued said cheques faoouing said bogus frms and hming -wiihdrautn the said amounts of cheques from thc bank and having thus cheated the department. Olfenu uniler wction 420, P.P,C. does not fall in the First schedule and is iot s scluduled offence and as such is rct triable by this C.ourt. The f*Srty committed in thc bills flabmitted ta the iirectar, Audit and Accounts Wotks Department which accoriling to the prosecution had taken place either outside or inside tlu office of Director.of 'Audit and Accounts Works Department, I'ahare, was not nuant to play fraud upon the bank but was madc to defraud the offcers of -the -said- 'department.

Submission of thex furged bills and commission tluteby of offence of use by the accused of the bills as genuine knowing theln n le iorgea ihiclt afso took place in the said ofice was designg( !9 -de/artment \lt-tu and not tlu bank. The ffince of forgrry of bills -w!t.i1lt is punishabb 'genuine under section 467, P.P.C. and use of said forged bills as knowing them to be forged which is punishable undcr section 47'1, b.P.C. *rrc thuls not offincis iommitted in respect of a bank' Tlale utery not eoen ffinus in connection with the business of the bank as obuiously there was"io nexus, tto bond or link befween the ffince of forgery of bills and ux of tlrcse forged bills as genuine in tlu office of Director of Audit and Accounts vtiorti, tohort oi the one hand and business of the bank on the other.

14.I haoe consiilered the obseroation of lcarned Special Judge (Central) to tlu effict that commission of offence of forqery outside and inside the ofice olOtrector Audit and Accounts Works formed par-t.of the- same traniactions committed in furtherance of tfu common obiect of ilrawing money from the bank. In my opinion, houteuer, the fact that the bank was in furtherance of the obiect of dtauing morcy "loin ou*ide- forgery 'this itu bank was not conclusiae to show that the offences-comm.i.tlcd in case are tiable by this Court. The said circumstance only qualifes for

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a single ltial for all tlu charges as tnid down in xction 236' Cr'P'C' or a joint"triat of alt the occurei as laid down in clause (a) of section 239, Cr,p.c. bui does not determirc the question of aenue of the trial of the accusedchnrgedwiththesaidffinces,ThisCourtisaSpecialCourt which cannol firael beyond the"fiur corflers of the statute which has created it. According ti the said'statute, this caurt can try an accttsed person fot scheduleioffencts only' Therefore, the ry1cial point in oriler to ) 'determine thc junsdiitionat queition in issue in this case is whether the said offences aie in respect oi the bank or in connection with the busincss of thc'bank. lt haaing 6een prooed thnt thc two offinces uniler section 467 ind 471., p.p.C., wiether in relation to bills or in relafion to the cheques committed in these cagzs wele neither in respect of the bank nor in ofences connection with the busiruss of the banh these wete not sdedubd as defned in section Z(d) of the Ordinance and unre' therefore' not triable bY this &urt"' @old added)

24.In the later case of Sikander Ali V The State (1989 P'Cr'L] 613) where the to appellant had already been convicted as in this case forged a document enable a person to get a job with the NBP a Division Bench of this court cited the

case of Mustaq Shah (supra) with approval and held that based on the particular

facts and circumstances of that case the Special Court had no jurisdiction and set

aside the conviction of the appellants but left it open to the prosecution iI so forum advised to try the appellant under the ordinary law before the appropriate in the following terms at para's 6 to17;

-6. luisdiction means 'the pmoer of a Court to hear and determine a cousetoadiudicnteorexerciseanyju.dicialporuerinrelati.ontoit,.As obseroed ii iino,**od Yaqub Aiia' ru itate reported in PLD 1985 Iah.48, ttte offences in respeit of Banks (Special Courts)-Ordin.ance' 1984' of .o, pro*uffii-ii p''iik p'ipeeav mil of certain offenccs in resYct Section 4 Banks and frr matte'rs tt'ei'with o7 incidental thereto' 'o'nict"d of the aboul Otrdinance confers exclusioe iuis.dicti.on on,Special Courts to

ty on""is' The"scheduled ffincc-' y.defnel.W.se^ction 2(d) of "anauiri n eans an offence ipecified in tlu First schedub and thc said oiirii",i with the alleged to natx been committed'in rtspeci of, or in connection business, of a bank' The exptessi'on 'in connection with' was ln't'titit'q Hussain Shah o' The State' reporteil in 7986 examined PCr.Ll 567 anil it was obsente*' of the wo-rd "I am of the uiew that the said interpretation in 'conruction' applies equally well to the saiil word as used icion z(d) i1'tt, oiai"oice anil accoilingly holil that tin conflection the woril'connection' in the expression iitt' in the saiil definition of scheiluleil and offence- elfect and ia,isages a link uhici is direct'cuuse not remote'" Ordinance'

7.According to wction S(b) of the Banking C-ompanies 1.962, bankingomeans the otnping, t" lY W'Pot:,of lending-or dcmand or in rrt*r,i, oF a'rotit of money'froi thc public' repayabll on Section order or otheruise' otteno*e, aid iitl' a'oioau AyLneque' ilraft' .t-962, 7 of thc b;:;id;; cr*panies 1rdinance, furttur provides that in

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addition to a business of banking a banking campany may engage in any one or morc of ifu dffirentkinds of business specifud thercin' S.Withthislegatposittoninaiew,itistwwtobewenwhetherthe act of forging an oraer 07,1,.O.C. to Pime Minister of Pakistan pr getting ,*piiyrir"l in a bank, is an offenu committed in respect of or in- conneition with the business of a-bank. A plain reading of xction 3(d) of the Offences in Respect of Banks (Special C-ourts) OrdinancP, 7984, makei it clear that thc saiil offmce o/ forgery uas not in connection u:ith the business of thc two banks. The forgeil otderc again iliit not affect the business of banks ilr any m-annen The einphasis is upon an offence committed in rcspect of or in connectlon with the business of a bank

g.Thepreambbofthesaidordinancewouldindicatethatituasan Ordinance io ptooide speedy trial of urtain offences committed in respect of banks and ior matteis conrccted'therewith or incidental tlureto. What is inciitentai in any giour case ilepmits upon the main legislation anil the circumstances of the particular case'

L0. The Speciat Court constitutcd for tne !A1l of ettain offences committedinrespectoforinconnectiomwiththebusitussofabank,is competcnt to try suci offenes only' A Special C'outt ca.nnot assume jurisdiction in disregard {i tne prooisions of section 3(d) of tl, Offences in 'Respect of Banks (sprcut courts) ordinanu, 1.984. The omission to ruise obiection, acquiescenae ot eoe't consent cannot inaest a Coutt with iurisiliction which it has not,

l.l,.SincethelearnedPresidingoffccrhailnajuisdictiontotryboth the cases, the entire proccediigs-'before him were --aoid. ab initio' conxquently both the ippeals ari allowed and the appellant is acquitted: He is in *itoay and siill be releaxd forthwith if not.required in any other case. It is, houtertet oPen to the prosecution to try the appellant uniler the orilinary law befote the competent criminal Court, if so ailaiseil' &old added)

25.In the case of A.Habib Ahmed V M.K.G.Scott Christian (PLD 1992 SC 353) the Supreme Court seemed to have widened the definition of scheduled offence in the following terms atP.353;

"The definition of scheduled offence as contained in section 2 (d) of the in Oitinance does iictude a idcr'io be to the offenas which are mentioned the schcdui iiil which unitoubtedty are illegeit in this case. Tlu ider is that those offences should haoe been alleged to haoe been committed "in respect of or'in connection with the bus{ness of -ban!"' h..neeils to be emphasizeit that the exptession "business of a bank" useil in the dertnition woulil haae io be gioen extandeil meating on rccoant of endeit eryresstgnl which connote tie use of fino such further 6pen ,,h1tsifless,, ztery wiie meaning for the worits anil the "Bank". These ate "in respect oY o' "in connection toith"' The sctutiny ol the meanings i7 tt worils unil apressions in the classical sources "it togethel ,ith tlrc moilern usu3es and scope -of- Banking business' leaoe absolutely no iloubt tha{there will be left out of thetr ambit only ,**i.iy'ror, Tluy somehow or th! other' are linl<ed with "o,,,.

the modern exLnded banking piactius in trade business, industry and.

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fnance, domestic and other; besides the earlier known scope 9f tlujr 'operution. Take, t'B-usiness" as xparatc for exampb, the word from the utord "Bank". a,gain ta*e aU that goes with tlu moibrn banking bushrcss and all that is iiluded in the banhng proctdures' Not only this' banking actioities both with regard to the depoiitors dealings as well as' dealings in trading and other enierpises orc fini, business' There is no need to dilate upo, ih" scope of the expressions " in respect of' and " in contlection with" any further.

ln the light of what has been sttted about the defnition, in thb case the ailegartns maile against the accaseil aniloubtedly iru9\ted tp business of tne bani more ilitectly than by inooking qid lton t\c expressioi "in respect of or "in clonnection with" ' With rysWc.t' !!u approach of the High Airt to trna loss, cotnpensation and other similat ellc*ents ionrrectei with tlu iomplainant, accused or the bar*' would atmount to reading much more in tne aetrnition itxlf than is justifed either a,y ti to"gwgrZsed therein 'or eoen by thc intendment underlyrnq tle simc. fhc"inintbn being that ay conceiaable situations, link'ed with the busiruss of thc bank, woild make the offengls mentioned in the scludule as

,rn'n*a'offtnes.

-c-";;;, Thus to take away all such ?*l from A y!iy'V. Courts (Banks)' That f";;"iou of ttuir trialbuibefoie tt-u 2Wd:!

to hold that the offences alleged in being ii, there is no ilternattue this"case against the accused were scheiluled offences" '

26.As noted earlier however in this judgment each criminal case must be we consider it decided on its own particular facts and circumstances and as such important to set out the facts of A.Habib's case (Supra) so that we can comPare which link them with the facts of the appeals before us to see if there is any nexus In this the two cases so as to legally justify them to be tried under the Ordinance' respect by way of comparison with the present case the facts of A.Habib's caee

(Supra) are set out below for ease of reference;

Company (Pakistan) "Petitioner (awellant) is a Director of the Boots Limited, t rifenea b as'Company" and maintains two accounts "iihlft,, with Hongk;;-and'shanghai Banking Corporatio.n' Sryy:f C-omplcx' m.n. xayiii'Road, Ka'aihi (lureinaftir rcfrre! t: It^-P::\')' For the

*ia'o\ 7i'iliA:P-pledge.d 2:e.8'620 shates of ?urpose i't rrriiiii rt rn tlu c.ompany witi tiu Bank. on' 28-1-1d87, he receiaed fwo letters from the Bank rriiiiii* to adjust the outstanding dues us-i.thin ten.days failing constuained to itart selling of tle securities Jbe which the saik would pledged'.

'repisentatiue iiiorA"g b petihoner. (appellant) .Y Y'"' .to. see Bank's on ilr" /oito*iyt and erPlained certai,n" tempotary -daU dfficutties faud by hii and tti soil, considcied his request for 30 days' dealiltss with him in thc extension **iii'i,ii'Uvin aiew of thc extensioe past, and ;;;;-; ,,kio o'tion 7o' the time being' H.1 again went to the made an o1" tt'"t he was willing to authoix the Bank on si-i'igiz '"a Bank to coilect dbidend on the shires prooided time for adjustment of thc

outstandins dlur, *o' extended' The B'ank accepted hil 9ffi1 and he signed iutnority in this behnlf whbh y!:^ryTolld b! t-he.:ank' On or a letter

about6-5'T3STtheCompanyannounced3Oi'dividendontlusharesanil prtinn r,l--ffiiit':[l 'collecfion-rii{" Luu of authorization was forwatded for diaidends uy ine Bank. Accoriling to petitioner t

vuY

(appeilsnt) howeoer, he utas greetly surpiseil to know on 78-5'7987 tttit tne Manager of the Banlg tesponilent 7, hail sectetly an'd sureptitiousty-solil his shares at the tate of Rs'55 p* share.to- rcspinilents i anil 4, who are stock'excharuge, brokcrs, as against hii purchase pice of Rs,730 per shate anit Rs'92 per sharc -on 6'5' 798); thus risulting in the wrcngfut loss of Rs'77,0t18,200 anil a , furthn loss of 300/o itioiilenil".@old added).

27.Now when the facts of A.Habib's case (Supra) are comPared with the irutant case it is quite apparent that the facts and circumstances of the instant case are completely different from those of A.Habib's case (Supra)'In A'Habib'e case (Supra) virtually the entire illegality complained of was committed by an employee of a banking company and as such the Supreme Court held that the Ordinance was applicable,

28.With full respect and difference to the Hon'ble Supreme Court we find that the facts and circumstances of the appeals before us are however distinguishable ftom A.Habib's case (Supra)' In the case before us the alleged illegality has been committed by an employee of an insurance comPany in league with private beneficiaries. There is no allegation that either the bank or any of its employees were a part of the scam who for instance illegally opened bogus accounts in favour of illegal beneficiaries. No banker has been eent uP to stand

trial for committing any illegality in respect of this case and the bank officials appe.u to have acted in a bona fide manner. No loss has been caueed to the we bank and as such based on the particular facts and circumstances of this case carutot see how the offences allegedly committed fall within the term " in respect

of or in connection with the business of a bank". The offences clearly relate to the business of an insurance comPany and its employees who allegedly conduit committed the illegality through which the banks were an unwitting and there performing there functions as they were obliged to do under the law ownSOPs.

29.We find that if we were to adopt a different view in nearly every case an illegality where a bank was involved and where somewhere down the line had been committed even if the bank had no knowledge about it and had acted under the in good faith such cases would be heard before the Special Courts the ordinance which we do not consider to be the legislative intent behind and scheduled Ordinance keeping in view the preamble, the definition of bank offence in the Ordinance which tends to suggest the Ordinance was PrimarilY

9 ro whilst promulgated to deal with illegalities committed by banks and its officials of banking' we dealing with its customers and their accounts during the business of a bank consider such intent to be only wherepimafacie aba*or an employee coruriving or has acted illegally through being directly involved, colluding or nvns rea i aiding and abetting or otherwise a financial scam with the requisite Ordinance should a scheduled offence under the Ordinance be tried under the which we also consider is the view/intention which has been taken by the in Supreme Court in A.Habib's case (Supra)'Even other wise as mentioned of the A.Habib's case (Supra) based on the particular facts and circumstances not fall within instant case we find it to be one of those rare cases which would the ambit of the Ordinance and was not intended to do so'

30.By way of completeness we have also considered the recent Supreme one of the issues Court case of Amiad Ali V The State (PLD 2017 K'661) where 1997 (ATA) and was whether an offence tried under the Anti Terrorism Act the ATA had any which lead to a conviction under the PPC only and not instant case' we find relevance in terms of jurisdiction when considered in the (ATC) had express that it did not as under the ATA the Anti Terrorism Court even if the ATC jurisdiction by virtue oI the ATA to try the offences so charged found aJter the completion of the evidence that the offences did not fall within as such could hear and the definition of terrorism as provided in the ATA and decidesuchcasesandhanddownconvictionsunderthePPCorrly.Therelevant extract of the judgment atP.664 pata's 6 and 7 is set out below for ease of

reference;

'6. The last aspect of this use highligh-ted in the la,ye granting orde.r is .as Uari i"'"1"tiitr'a in conaicting and sentencing to whether the courts .the the- Anti-Terroism Act' opiriiort, for an offence''ii" "'t7o' 7(a) of 'L997 or not. we not in tnoiToniit tn'i o ture fing.at one'.s.fey211l, design does not ipso Jacto ,"r*i i'-in airkdrop o7 o pittate aendetta or -OW 6 of the Anti'Terroism Act' r* case within'thz piiu* of section no'design'- or' L997 so as to brand tt"'*liii ot'terrorism' There was act' 7997 inoolaed 'obiect' contemplated uy t-iti"7 a i1ilu Anti-Terroism of airtue of itemNo'4Gi) i"tii *tt'il il"a w, iit'n' "it' that byAct' 7997 a case becomes the Thbil Scheilule to tie Anti'Teroism or explosioes triable by an Anti-Ten'orism Court if use of-/irearms oth? o/ ete in a tnosque, i*o*i'"s'i;i'y9'' tem.ptZ.or any !l!ce, in the Third Scheilule worship is involoeil in thi casa That mtry Coart but such only makes such a case ;;;i;iy an Anti-Terorism case of tertoism fot the a case iloes not ipso facto become a' sentmLes uniler section 6 purposes of recorilingLZ"'ti'i'inil read toith section I oY ie inti-Tetorism Act' 7997' T'he case in hand hnd, thus, rightly been ii enti-r'norism aufi but theoffenctsaid "t";;i Court could not hrue t"':;;;;;";i sentenud tlu awllants-for an Act' 1997 as it had separately under section 7(ti of the i;ti-Tenoism

I

! rl anuicted and sentenced the appellants for the ofences of murder, etc, committed as ordinary crimes,

7.For what has been discusseil abotte this appeal is partly allowed and the appellants" anaictions and sentences recorded and upheld by the cytts below for the ffincc under section 7(a) of the Anti-terrorism Act, 1997 are set+side but as regards tlrc remaining conoictions and sentences of the-

I

aryllants the samiare uplald and ma{ntained and this appeal is dismisxd to that extent".(bold added)

31.In the instant case there is no such exPress provision in the Ordinance which enables cases which do not primarily concern cases/offences where the bank or its employees have no criminality to try cases under the Ordinance. It is notable that under Section a $) of the Ordinance that such cases/offences on their own particular facts and circumstances can be tried separately by the appropriate court with the relevant jurisdiction once the Special Court reaches the conclusion that such offences do not fall within the ambit of the Ordinance which we consider was the course which the special court should have adopted in the instant case.

32.Under these circumstances we find in the instant caseg that the Special Court under the Ordinance had no jurisdiction to hear and decide the cases before us and as such the impugned judgments are all set aside, all the appeals are allowed, the appellants are acquitted of the charge and the bail bonds of the appellants who are on bail stand discharged and they are free to go however we leave it open to the prosecution if so advised to try the appellante under the applicable law before the appropriate legal fotum.

33.Before parting with this judgment we would like to place on record our appreciation to all learned counsel for their valuable assistance and in particular Mr. Ijaz Ahmed learned amicus curiae advocate assisted by Mr' Waqar Ahmed advocate.

34 The appeals stand disposed of in the above terms.

p{cu os/.1.r

E

Muhamnad Anl