' M. BILAL KHAN. J.---This judgment will dispose of four Constitutional petitions bearing W.P. No.3021 of 2005 (Aamer Khurshid Mirza v. The State and another), W.P. No.3635 of 2005 (Salah-udDin Ahmad Sahaf v. The State and another), W.P. No.3636 of 2005 (Salah-udDin Ahmad Sahaf v. The State and another) and W.P. No.3835 of 2005 (Salah-ud-Din Ahmad Sahaf v. The State and another), as common question of law is involved therein.
2. Briefly the facts giving rise to the aforesaid petitions are as under:--
(I) W.Ps. Nos.3021 and 3636 of 2005: ' Aamer Khurshid Mirza and Salahud-Din Ahmad Sahaf, the petitioners in both the petitions, respectively, had been the Directors of Messrs Shah Din Limited; in December, 1991, the National Development Finance Corporation (Now National Bank) filed a suit for recovery of Rs.14,329,433.70 against Messrs Shah Din Limited and six of its Directors including the petitioners before Banking Tribunal No.3, Lahore under the provisions of the Banking Tribunals Ordinance, 1984, which was still pending when Messrs Shah Din Limited was ordered to be wound up on 22-2-1999; on 9-4-1999, the National Development Finance Corporation filed a complaint through its Attorney, namely, Muhammad Shafi, Acting Senior Vice-President under sections 4 and 5 of the Offences In Respect of Banks (Special Courts) Ordinance, 1984 before the Special Court, constituted under the said Ordinance against the petitioners and six others, namely, Waheedud-Din Mahmood Sahaf, Qamar Javaid Bokhari, Muhammad vaqoob, Sohail Ashraf, Naeem-udDin Sahaf and Shahid-ud-Din Sahaf, in consequence of which case F. I . R. No. C-44/2001/DD/ FIA/SBC/L, dated 28-6-2001, stood registered at Police Station FIA/SBC, Lahore for offences under sections 406 and 420, P.P.C.; after completion of investigation, the challan was submitted in the Special Court, constituted under the Offices in Respect of Banks (Special Courts) Ordinance, 1984, Lahore; Aamer Khurshid Mirza, the petitioner, had filed Crl. Misc. No.98/Q of 2004 seeking quashing of the proceedings against him in another case, which too was pending in the Special Court (Offences in Banks), Lahore, which was accepted by this Court vide judgment, dated 26-7-2004 and the same had attained finality as it had not been appealed against by the State; that both the petitioners preferred separate applications under section 249-A, Cr.P.C. Seeking their acquittal in view of the rule laid down in the afore-said judgment. Which has been reported as Aamer Khurshid Mirza v. The State (2005 CLD 20); the said applications were still pending as the learned trial Court had postponed the hearing thereof on the ground that it had been brought to its notice that the matter was under consideration with the Chairman, National Accountability Bureau.
(II) W.P. No.3635 of 2005: ' The petitioner, Salah-ud-Din Ahmad Sahaf, was one of the Directors of Shah Din (Pvt.) Limited, against which United Bank (Pvt.) Ltd. Instituted a suit for recovery of Rs.134.576 million under the Banking Tribunals Qrdinance, 1984 against Shah Din and seven others in the year, 1995, which had been decreed on 31-1-1996; in the year, 1998, United Bank Limited through its officers, namely, Riffat .
Yagoob Dar and Feroze Sheikh filed a complaint against Messrs Shah Din Limited and its Directors, 'namely, Salah-ud-Din Ahmad Sahaf (the petitioner), Kh. Waheed-ud-Din Mehmood Sahaf, Syed Qamar Javed Bokhari and Aamer Khurshid Mirza, in consequence of which F.I.R. No.28/98/FIA/SBC/L (C28/98/FIA/CBC), dated 29-7-1998, stood registered at Police Station FlA/CBC, Lahore for offences under sections 406 and 420, P.P.C. And proceedings wherein were pending in the Special Court, constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984; the co- accused of the petitioner, namely, Aamer Khurshid Mirza had earned acquittal from this Court vide judgment, dated 26-7-2004 passed in Cr1. Misc. No.98/Q of 2004 (reported as 2005 CLD 20), whereby proceedings before the Special Court against him in the instant F.I.R. Had been quashed and the said judgment had attained finality because the same has not been assailed before the Hon'ble apex Court; the petitioner preferred an application under section 249-A, Cr.P.C. Before the Special Court seeking his acquittal on the basis of the rule laid down in the afore-cited judgment, which was still pending as the learned trial Court had postponed the hearing thereof on the ground that it had been brought to its notice that the matter was under consideration with the Chairman, National Accountability Bureau.
(III) W.P. No.3835 of 2005: ' The petitioner, Salah-ud-Din Ahmad Sahaf, was one of the Directors of Messrs Sahaf Enterprises (Pvt.) Limited, against which United Bank Limited, McLeod Road Branch, Lahore instituted a suit for recovery of Rs.53.29 million under the Banking Tribunals Ordinance, 1984 against Messrs Sahaf Enterprises (Pvt.) Limited, and others in February, 1995, which had been decreed on 25-6-1996; in the year, 1998, United Bank Limited through its officers, namely, Riffat Yaqoob Dar and Feroze Sheikh filed a complaint against Messrs Sahaf Enterprises (Pvt.) Limited, and its Directors, namely, Salah- ud-Din Ahmad Sahaf (the petitioner), Waheed-ud-Din Mehmood Sahaf and Syed Qamar Javed Bokhari, in consequence of which F.I.R. No.29/98/FIA/SBC/L (C-29/98/ FIA/CBC), stood registered at Police Station FIA/CBC, Lahore for offences under sections.406.And 420; P.P.C. And proceedings wherein were pending adjudication in the Special Court, constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984; in another case F.I.R. No.28/98/FIA/SBC/L (C-28/98/ FIA/CBC), registered at Police Station FIA/CBC, Lahore for offences under sections 406 and 420, P.P.C. In which the petitioner was also an accused, his co-accused, namely, Aamer Khurshid Mirza had earned acquittal from this Court vide judgment, dated 26-7-2004 passed in Cr1. Misc. No.98/Q of 2004 (reported as 2005 CLD 20), whereby proceedings before the Special Court against him in the said F.I.R. Had been quashed and the said judgment had attained finality because the same had not been assailed before the Hon'ble apex Court; the petitioner preferred an application under section 249-A, Cr.P.C. Before the Special Court seeking therein his acquittal on the basis of rule laid down in the afore-cited judgment and the same was still pending as the learned trial Court had postponed the hearing thereof on the ground that it had been brought to its notice that the matter was under consideration with the Chairman, National Accountability Bureau.
Having not been able to obtain any decision from the trial Court, the petitioners approached this Court by filing the aforesaid four Writ Petitions, the details whereof have been mentioned hereinabove.
3. We have heard the learned counsel for the petitioners and the learned Deputy Prosecutor General for NAB at considerable length.
4. Writ Petition No.3021/2005 (Aamer Khurshid Mirza v. The State and others) came up' for preliminary hearing before us on 2-3-2005, when it was admitted to regular hearing and the proceedings before the learned trial Court were stayed. Likewise writ petition No.3635 of 2005 (Salah-ud-Din Ahmed Sahaf v. The State and others) and W.P. No.3636 of 2005 (Salah-ud-Din Ahmed Sahaf v. The State and others) came up for hearing on 10-3-2005, whereas W.P. No.3835 a of 2005 (Salah-ud-Din Ahmed Sahaf v. The State and others) was admitted to regular hearing on 15-3-2005, wherein further proceedings in the matter before the learned Special Court were ordered to be stayed and the factum of the admission of Writ Petition No.3021 of 2005 was also mentioned.
5. Strangely enough on 18-4-2005 despite the stay granted by us, the case was transferred by the trial Court to 'the Accountability Court, purportedly on an application made .To it by the Chairman, National Accountability Bureau. It was brought to our notice by Aamer Khurshid Mirza by means of Crl. Org. No.325/W of 2005 that the case had been entrusted to.
' Accountability Court No.1 Lahore.
6. On 9-5-2005 the learned Deputy Prosecutor General for NAB appeared in all the four cases and sought time to file a written statement. Later on, he filed parawise comments and wished the same to be treated as written statement.
7. It was contended before us albeit feebly that our judgment, dated 26-7-2004 in Crl. Misc. No.98/Q of 2004 reported as Aamer Khurshid Mirza v. The State (2005 CLD 20) was a judgment perincuriam, inasmuch as it did not take into consideration a Full Bench decision of this Court reported as Messrs Chenab Cement Products (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). It was also contended that the case having been transferred to an Accountability Court, the writ petitions were not maintainable in their present form without assailing the transfer order; that the remedy of an application under section 249-A, Cr.P.C. Was still available as the same had also been transferred to the Accountability Court with the case.
8. We will first deal with the question of transfer of case from Special Court in respect of Offences in Banks to Accountability Court No.1, Lahore. It is now well-settled that just as law operates from the moment it is enacted and ignorance is no defence, a stay granted by a Superior Court operates from the time the order is made and non-knowledge or ignorance of the order will not permit a lower Court to render the order of a Superior Court ineffective or a nullity. We have no doubt in our mind and we are supported by authority that any or all proceedings taken by the trial Court after our order staying the proceedings before it, are a nullity and thus totally without jurisdiction and, therefore, the case would be deemed to have never been transferred from the Special Court in respect of Offences in Banks at Lahore. Reference may profitably be made to the cases reported as Din Muhammad Khan v. Abdul Rehman Khan (1992 SCMR 127) and Akhtar Hussain and 4 others v.
The State (1993 SCMR 1523). There is no question or need of having assailed the transfer order, which as stated by us earlier was a nullity.
9. We intend looking at this case from another angle as well. A definite challenge had been thrown to the trial Court's jurisdiction on the basis of our judgment. It is now a settled proposition that jurisdiction of a Court is always the core question, therefore, this question has got to be dealt with immediately to the exclusion of all other business because this is what decides the competence or otherwise of a Court or Tribunal to proceed further in the matter. Reference can be made with some advantage to the case, Town Committee, Gakhar Mandi v. Authority Under the Payment of Wages Act, Gujranwala and 57 others (PLD 2002 SC 452) and Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. And others (2003 CLC 416).
10. In this particular case, the jurisdiction of the trial Court had been challenged on the basis of our earlier judgment in Cr1. Misc. No.98/Q of 2004. Applying the Constitutional mandate of Article 201 of the Constitution of Islamic Republic of Pakistan, 1973, the learned trial Court was left with no choice but to have given effect to our judgment. The only exception could have been that our judgment did not apply to the facts and circumstances of the case. This is not what the learned trial Court did. Rather it sat over the matter inertly for no good reason. Having failed to address itself to the question of its own jurisdiction, it was left with no jurisdiction to transfer the case to the Accountability Court and that too after issuance of stay order by this Court. Even otherwise had it given effect to our earlier judgment, there was no case before it to transfer.
11. We now advert to the question of our judgment being termed by the respondents as being a judgment perincuriam. Mr. Waqar Hassan Mir, the learned Deputy Prosecutor General for NAB has not been able to show us as to how the said judgment can be labelled as such. The term per incuriam has been defined in Ballentine's Law Dictionary 3rd Edition at page 934 to mean "through carelessness", "through inadvertence" and "through lack of care". The same has been understood as "through inadvertence" in Black's Law Dictionary 6th Edition at page 1138 and in the seventh edition thereof at page 1159 relating to a judicial decision means "wrongly decided, usu. Because the Judge or Judges were ill-informed about the applicable law". We have not been shown anything other than the judgment reported as Messrs Chenab Cement Products (Pvt.) Ltd. (supra) to contend that our judgment reported as Aamer Khurshid Mirza (supra) was one perincuriam.
12. We have examined the contents of the judgment in case of Messrs Chenab Cement Products (Pvt.) Ltd. (supra) relied upon by Mr. Waqar Hassan Mir, the learned Deputy Prosecutor General for NAB. This was a judgment rendered in a materially different scenario. It basically and primarily took care of sections 4, 6 and 9 of the Banking Tribunals Ordinance, 1984 and held them ultra vires the Constitution. However, while disposing of those petitions, the Hon'ble Full Bench of this Court had also held in paragraph No.16 of the judgment that no vacuum would be created and cases could be tried by the Banking Courts established under the Banking Companies (Recovery of Loans)
Ordinance, 1979. It is nobody's case that the concerned Banks (NDFC and the UBL in this case) did approach any Banking Court with their grievance against the present petitioners. Even otherwise in the case relating to Writ Petition No.3021 of 2004, NDFC agitated the matter in the year, 1999, which is about three years after the judgment in case of Messrs Chenab Cement Products (Pvt.) Ltd.
(supra) and only after Messrs Shah Din Ltd. Was ordered to be wound up. At any rate we have carefully examined our judgment reported as Aamer Khurshid Mirza (supra) and are of the opinion that it proceeded on different premises and was not effected by judgment reported as Messrs Chenab Cement Products (Pvt.) Ltd. (supra) and was thus not a judgment perincuriam.
13. It may be appropriate to reproduce paragraphs Nos.13 and 14 of our judgment reported as Aamer Khurshid Mirza (supra), which read:-- "(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 it, 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.
' All offences under this Ordinance shall be bailable, non-cognizable and compoundable.
' 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 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 becpmes 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 Tribunals Ordinance. The presumption is that the legislature does not make any mistakes. The Banking Tribunals 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 Companies (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 it 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 laiv, 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 fact 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 the 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:"
14. The outcome of the above is that our judgment, dated 26-7-2004 in Cr1. Misc. No.98/Q of 2004 (2005 CLD 20) holds the field and ought to have been given effect to. The benefit of the said judgment is also extended to all other accused persons in the same F.I.R.
15. The rule laid down in that judgment is also attracted to the facts and circumstances of F.I.R.
No.C-44/2001/ D.D/FIA/SBC/L, dated 28-6-2001 registered under sections 406 and 420, P.P.C. At Police Station FIA/SBC, Lahore and case F.I.R. No.29/98/FIA/SBC/L(C29/98/FIA/CBC) and the State could not point out anything to the contrary when the case was before the learned trial Court despite having been given opportunity to do so on more than one occasion. We too have not been shown anything to the contrary.
16. Resultantly we, applying the principle laid down in the judgment, dated 26-7-2004 in Crl. Misc No.98/Q of 2004 (2005 CLD 20), accept these petitions and quash FIRs. No.C-44/2001/DD/ FIA/ SBC/L, dated 28-6-2001, No.28/98/FIA/ SBC/L (C-28/ 98/ FIA/ CBC), dated 29-7-1998 (which already stood quashed), and No.29/98/FIA/SBC/L (C-29/98/FIA/ CBC), dated 29-7-1998, and the proceedings emanating therefrom illegally transferred to the Accountability Court No.1, Lahore and acquit the petitioners by allowing their petitions under section 249-A. Cr.P.C. There will no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.