' M. BILAL KHAN, J.---This petition under section 439 read with section 561-A, Cr.P.0 has been brought by the petitioner Aamir Khurshid Mirza for quashing of proceedings against him emanating from F.I.R. No,28-98 F.I.A., SEC/ LC-28/98 registered under sections 406 and 420, P.P.C. The challan is pending before the Special Court, Offences in Respect of Banks (Special Courts) Ordinance, 1984.
2. The petitioner was one of the Directors of M/s. Shah Din Limited which had obtained some financial facility from UBL McLeod Road Branch, Lahore. On 2-6-1992 the Company resolved to approach the Bank for getting the outstanding liabilities restructured and authorized Salah-ud-Din Sahaf and Qamar Javaid Bokhari to approach the Bank and to negotiate, sign and to execute documents for this purposes. The Bank agreed to reschedule the facility at the request of the Company on 6-10-1992 against the security inter alia of hypothecation of goods.
3. It appears from the record that the petitioner resigned as a Director of the Company; his resignation was accepted by M/s. Shah Din Limited and all his financial and other liabilities were taken over by the Company w,e,f, 30-6-1996, however, it appears that his resignation was neither communicated to the Bank nor to the Registrar of the Companies.
4. The finance facility was governed by the Ban king Tribunals Ordinance, 1984, therefore, in February, 1995 in the event of default committed by M/s. Shah Din Limited the Bank filed a suit for recovery of Rs,134.576 Million before the Banking Tribunal constituted under the Ordinance.
Admittedly the suit was decreed on 31-1-1996 but no information of any kind was ever laid before the Banking Tribunal under sect ion 7 of the Banking Tribunals Ordinance regarding any shortage/defalcation of hypothecated goods.
5. However, on 28-7-1998 the Bank made a complaint to Deputy Director, F.I.A. (Commercial Circle) against M/s. Shah Din Limited and its Directors Salah-ud-Din Ahmad Sahaf, Khawja Waheed-ud- Din Mehmood Sahaf, Syed Qamar Javed Bokhari and Aamir Khurshid Mirza alleging therein that they had misappropriated and removed the hypothecated goods or had caused some one else to do the same/or converted the same to ' their own use. On 29-7-1998 F.I.R. No,28/98/FIA/SBNC/L(C- 28/98/Fla/CBC) was registered at Police Station FIA/CBC, Lahore under sections 406/420, P.P.C.
Against M/s. Shah Din Limited and the aforementioned 4 persons including the petitioner showing that the occurrence had taken place in the year 1991.
6. The petitioner applied for his bail before arrest before the Special Court and on 6-11-1998 during the course of hearing of the said bail application it was mentioned for the first time by the Investigating Officer that the occurrence had taken place in 1993 and not in 1991. The I.O. On the said occasion stated before the Special Court that no specific role had been assigned to the petitioner and that there was no material on record to show that the petitioner had taken any part in the removal/misappropriation of the hypothecated goods. The Special Prosecutor on instructions of the I.O. Confirmed that the petitioner had resigned from the directorship of the Company in 1995 and that Salah-ud-Din Sahaf and Syed Qamar Javed Bokhari were the active Directors of the Company. The F.I.A. Completed the investigation and submitted challan in which the petitioner had also been arrayed as an accused. In February, 2003 the petitioner made an application under section 249-A, Cr.P.C. For his acquittal. The said application had been turned down by the learned Sessions Judge on 26-5-2004 The petitioner has assailed the said order dated 26-5-2004 and has prayed for his acquittal from the case under section 249-A, Cr. P. C.
7. The learned counsel for the petitioner has contended that in view of the clear language of sections 5(1)(b), 5(3) and 7 of the Banking Tribunals Ordinance, 1984 it is clear that the Banking Tribunal has exclusive jurisdiction with regard to any offence created under the said Ordinance; that no other Court or authority could have exercised its jurisdiction with regard to the same; that when a thing is required to be done in a particular manner, it ought to be done in that manner or not at all; that if the allegation made in the F.I.R. Amounted to any offence and the same was not brought to the notice of the Banking Tribunal, then the same cannot be agitated before any other forum meaning thereby that if the act complained of is not an offence under the special law it cannot be an offence under any other law; that it is absolutely crucial that the complainant did not even make a mention of the alleged removal of hypothecated goods in its suit for recovery filed before the Banking Tribunal in February, 1995 which had been decreed on 31-1-1996; that the complainant waited for another 2-1/2 years to file its complaint which made the allegation contained in the F.I.R. Highly doubtful; that in fact in this manner a civil liability is being transformed into a criminal offence; that the decree in the suit for recovery being the final and the formal adjudication of the rights of the parties with regard to all matters and the controversy between the parties in the suit, the Bank cannot be permitted to agitate indirectly by way of criminal proceedings what it cannot do directly. The learned counsel finally argued that the allegations contained in the F.I.R. And in the statements of witnesses available on the record are vague, non- specific, bereft of even the slightest details necessary for framing or sustaining a criminal charge and for proceeding with the case. He concluded by arguing that the F.I.R. Mentioned the occurrence to have taken place somewhere in the year 1991, therefore, the very act of rescheduling of loan in the year 1992 was to destroy the allegation of removal of the hypothecated goods.
8. Mr. Muhammad Jahangir Wahla the learned Standing Counsel for Federal Government appearing for the State on the other hand contended that the language of section 7 of Banking Tribunals Ordinance itself provided for action to be taken under any other law and, therefore, it was absolutely within the Province of F.I.A. To have registered the case and to have proceeded with the trial.
9. Mr. Tariq Saleem Sheikh the learned counsel for the complainant has adopted the arguments advanced by the learned Standing Counsel.
10. We have considered the arguments advanced by the learned counsel for the parties at considerable length.
11. It is admitted by the learned counsel for the State as also by the learned counsel for the complainant that the alleged occurrence had taken place when the Banking Tribunals Ordinance, 1984 was in force (the actual date being unknown), therefore, there is no doubt in our mind that to decide the question of jurisdiction, as canvassed by the learned counsel for the petitioner we will have to look at the provisions of Banking Tribunals Ordinance, 1984. We must make a particular note about the peculiarity of the facts in this case even before we proceed to examine the question of jurisdiction raised by the learned counsel for the petitioner and opposed by the State Counsel.
' In this case the occurrence is alleged to have taken place according to the F.I.R. Itself in 1991 and according to the learned State counsel in 1993. The Bank filed the suit for recovery in 1995 and the same was decreed on 31-1-1996. The complaint was made by the Bank on 27-7-1998 i,e, 2-1/2 years after the suit having been decreed.
12. We have noticed that the Offences in Respect of banks (Special Courts) Ordinance, 1984 is a law which essentially provides for speedy trials for offences mentioned in its schedule. The said provisions do not create any new offence except the one contained in its section 7 which prohibits transfer of or creation of a charge over property owned by an accused without the permission of the Special Court. On the other hand the Banking Tribunals Ordinance (Ordinance No,LVIII of 1984) was promulgated on 31-12-1994 which is much later than Offences in Respects of Banks (Special Courts) Ordinance (Ordinance No,IX) of 1984.
13. Examining the question of jurisdiction of a forum other than the Tribunal established under the Banking Tribunals Ordinance we find that section 5 of the said Ordinance deals with the powers of a Banking Tribunal. Subsection (1) of section 5 provides that a Banking Tribunal shall--
(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a customer in respect of, or arising out of, finance, provided by , all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);
(b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for this purpose, have the same powers as are vested in the Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898): ' Provided that a Banking Tribunal shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorized in this behalf by the Banking Company in respect of which the offence was committed; and
(c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it, by or under this Ordinance;
(d) a Banking Tribunal shall, in all matters with respect to which procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).
Section 5(3) goes on to say no Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decision as to the existence or otherwise of finance and the execution of a decree passed by the Banking Tribunal. Section 7 of this Ordinance provides:
7. Provisions relating to certain offences (1) whoever intentionally destroys or removes, or reduces the value of the property on the security of which finance was provided to him, or, without the prior approval in writing of the Banking Company which provided finance, transfers such property or any part thereof otherwise than in accordance with the terms of approval shall, without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force, be punishable with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine and shall be ordered by the Banking Tribunal trying the offences to deliver up or refund, within a time to be fixed by the Banking Tribunal, the property or the value of the property so destroyed, removed or reduced in value or transferred as the case may be.
(2) All offences under this Ordinance shall be bailable, non-cognizable and compoundable.
(3) Where the person guilty of an offence under this Ordinance is a company or other body corporate, the Chief Executive by whatever name called, and every director, other than a' non- executive director, manager, Secretary and other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
The wisdom of providing machinery for the recovery of money under the Banking Tribunals Ordinance, 1984 becomes evident by a joint reading of the sections reproduced above. The legislature is cognizant of the fact that in some of the cases there would be customers who would try to defeat the Bank's efforts for recovery of its money. This is why this ,offence has been created and the same forum which is involved in adjudication of the matter of recovery has been vested with the powers to punish. The legislature is presumed to be cognizant of the existing law, therefore, we cannot lightly and easily ignore the expression of legislative will as has been manifestly expressed in the above quoted provisions of the Banking Tribunal Ordinance. The presumption is that the legislature does not make any mistakes. The Banking Tribunal Ordinance is a special law relating to the recovery of money from delinquent/defaulting borrowers. We have no doubt in our mind that it is a complete Code unto itself and provides machinery for dealing with the matter of recovery of money and it relates to matters including offences created with regard to an effort at thwarting recovery. This compels us to conclude that the provisions of the Banking Tribunals Ordinance, 1984 will prevail over any other law and any criminal act falling within the definition of offence contained in section 7 of the Ordinance will fall within the exclusive domain of the Banking Tribunal and that too in the manner provided i,e, that the offence will be not cognizable and that the cognizance thereof will be taken by the Tribunal on a written complaint by the Bank. It will be bailable as also compoundable. Our attention has also been drawn to case of Nayyar Islam (PLD 2001 Lahore 533) wherein in a similar situation arising out of section 19 of the Banking Company (Recovery of Loans, Advances and Finances) Act, 1997 this Court came to the conclusion that the Act being a special law would prevail over the general law. We are in agreement with the conclusion arrived at in the said case and may add that the petitioner too is being sought to be prosecuted under the general law but only before the special Forum. We have already observed that Ordinance IX of 1984 only provides a different forum and does not create a new offence as is the case under Banking Tribunals Ordinance, 1984.
14. We now advert to the import of the words "without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force" which occur in section 7 of the Banking Tribunals Ordinance, 1984. In our view the Legislature cannot be presumed to have envisioned punishing an offender under this law and then to allow proceedings against him under the general law as well. Attending to the facts of F.I.R. Having been recorded even after the suit by the complainant Bank was decreed on 31-1-1996 we notice that it is admitted and accepted by the counsel for the complainant Bank and the State that the suit was decreed on 31-1- 1996. The expression "decree" has been defined in C.P.C., 1908 in the following manner: "Decree means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within section 144 and an order under rules, 60, 98, 99, 101 or 103 of Order XXI but shall not include."
It is not the Bank's case that their rights have not been finally adjudicated by the decree in their favour. It thus follows that the Bank was satisfied by what is contained in the decree. Even otherwise the Bank never wanted the Banking Tribunal to have proceeded against the Company and the petitioner. The Bank appears to have deliberately chosen not to proceed against the petitioner. We feel that the decree dated 31-1-1996 put an end to all matters regarding recovery.
15. In the earlier part of this judgment we have come to the conclusion that the provisions of the Banking Tribunals Ordinance, 1984 will prevail over the general law, therefore, we hold that the offence complained or had to be dealt with in the manner provided in the Banking Tribunals Ordinance, 1984 and that the registration of F.I.R. By F.I.A. And the consequent prosecution of the case before the Special Court is without jurisdiction.
16. As a result of what has been discussed above this petition is allowed and the proceedings against the petitioner arising out of F.I.R. No,28/98/FIA/SBC/LC-28/98/FIA/CBC dated 29-7-1998 under sections 406 and 420, P.P.C. At Police Station F.I.A., CBC, Lahore now pending before the Special Court in Respect of Offences in Banks, Lahore are quashed. The petitioner is acquitted of the charges against him.
Proceedings qi ished.