This appeal under section 34 of the Securities and Exchange Commission of Pakistan, Act, 1997 seeks to challenge an appellate order of the Commission dated 25-4-2002.
2. The appellant .claims to have purchased 85,000 shares of Fauji Jordan Fertilizer Company (FJFC) from respondent No.1, Muhammad Sarfraz Ghumman, Member Lahore Stock Exchange during the years 1996-97. It is stated that the said respondent failed to deliver the share certificates.even distinctive numbers of these certificates were not provided. It is further stated that respondent No.1 during this period also operated from Gujranwala through an office, which was managed by the one Engineer Mehmood Akhtar, who subsequently himself became a member of Lahore Stock Exchange. According to the appellant on obtaining independent membership both respondent No.1, Muhammad Sarfraz Ghumman, and said Engineer Mehmood Akhtar struck a deal in a clandestine manner under which the liabilities and other dealing of some of the investors/customers of respondent No.1 were transferred to Engineer Mehmood Akhtar. Also that in furtherance of that deal the appellant like many other investors was compelled to sign blank forms with the intention of showing transfer of liability of respondent No.1 in the name of Engineer Mehmood Akhtar. It is again repeated that even al the time of signing of blank receipts of delivery of shares no script was actually handed over to the appellant. Subsequently, Engineer Mehmood Akhtar disappeared after misappropriating the investments of a number of persons. On this the appellant approached respondent No.1, Muhammad Sarfraz Ghumman, as well as Lahore Stock Exchange for delivery of shares but allegedly without any success.
3. On being approached by way of a complaint against respondent No.1, the Executive Director (Securities Markets) of Securities and Exchange Commission of Pakistan sitting singly rejected the claim of the appellant for delivery of 85,000 FJFC shares. In the judgment so delivered the Executive Director appears to have taken into consideration a number of facts including the claim of respondent No.2, Lahore Stock Exchange, that earlier the appellant on May 22, 1998 filed a complaint against Engineer Mehmood Akhtar for delivery of same 85,000 FJFC shares; that the complainant engaged himself in trading of shares with Engineer Mehmood Akhtar even after alleged non-delivery of the aforesaid shares, that the account of the complainant was transferred to Engineer Mehmood Akhtar with his consent, which was evidenced by the account statement certificate dated June, 17, 1998 signed by him and that the share receipt bills and share delivery bills were signed by both the complaint as well as Engineer Mehmood Akhtar. In view of the rival claims, the Executive Director addressed himself to the issues if the complainant ever conveyed his consent to the agreement between the respondent No.1 and Engineer Mehmood Akhtar to transfer is account and secondly if he had actually lodged a complaint for delivery of same 85,000, FJFC shares against Engineer Mehmood Akhtar which he was now claiming against respondent No. 1. On consideration of various facts and the supporting documents produced by the respondents Nos.1 and 2 Muhammad Sarfraz Ghumman and Lahore Stock Exchange, the Executive Director concluded as under:-- "36. There is no evidence before me that the complainant independently purchased a second lot of 85,000 FFC shares from Engineer Mahmood Akhtar. The complainant has not been able to provide any independent purchase contract for this purchase nor any evidence of payment for these Shares from Engineer Mehmood Akhtar. The LSE representative has also confirmed that the documents submitted by the complainant in support of his claim lodged with the LSE for 45,000 FJFC Shares against Engineer Mehmood Akhtar following the LSE Member's default are the same as those supporting the present claim against the respondent. For the aforementioned reasons I find that there was only one purchase made by the complainant for 85,000 FJFC shares, that from the respondent during the period March, 1997 to June, 1997. The complainant has admitted that he recovered 40,000 FJFC Share directly from Engineer Mehmood Akhtar, and then following Engineer Mehmood Akhtar's default in June, 1998, lodged a claim for 45,000 FJFC Shares with the LSE against the defaulted Member. In the face of this admission, I can only conclude that the complainant was aware and came to accept by his conduct that the FJFC Shares originally purchased from the respondent were transferred along with his balance shareholding and account position to Engineer Mehmood Akhtar after the latter obtained his LSE Membership'. I am fortified in my conclusion by the fact that when the respondent agreed to shift his liabilities to Engineer Mehmood Akhtar, the accounts of many other investors of the respondent were also transferred. None of these investors as reported by the LSE have ever lodged claims against the respondent.
37. I was informed by the LSE representative at the hearing that following Engineer Mehmood Akhtars' suspension by the LSE in April, 1998, all the Members' records, books of accounts, etc. were removed from his Gujranwala office by former employees before the LSE could take any steps to seal the office and collect investors account records as they were obliged to do under their Rules and Regulations. Before obtaining LSE Membership, Engineer Mehmood Akhtar was operating a brokerage house in Gitjranwala on behalf of and with the full knowledge and blessing of the respondent. It was admitted by the respondent's representative, Mr. Rizwan Yousuf at the hearing before me on April, 19, 2001 and confirmed by the LSE representative that Engineer Mehmood Akhtar was neither registered as an agent of the respondent at the time with the LSE nor had the respondent obtained any authorization for the opening of his Gujranwala sub-office from the LSE.
Although there were no Rules in place at the time imposing such registration requirements upon brokers by the LSE, as a frontline regulator the LSE should have been more vigil int in detecting any practices and arrangements between brokers which could potentially jeopardize the investments of their clients."
4. Being dissatisfied with the order, the appellant approached the Appellate Bench No.1 of the Securities and Exchange Commission of Pakistan. While rejecting his appeal the Appellate Division Bench comprising of two Commissioners inter alia, observed that it was established before the Executive Director, through documentary evidence that the appellant had received delivery of 40,000 shares from Engineer Mehmood Akhtar through Bills Nos.351 and 352 dated September 15, 1997. It was also noted that the claim of the appellant for recovery of 45,000 shares against Engineer Mehmood Akhtar was verified by respondent No.2, Lahore Stock Exchange investors' Claim Settlement Committee on the basis of the same documents, which he had submitted with his claim against respondent No. 1. Therefore, the learned Members of the Bench observed that the appellant at the relevant time was apparently satisfied with his verified claim of 45,000 shares and that he actually received 85,000 shares of the said company in his account with Engineer Mehmood Akhtar. The learned Members also observed that "statistically it was proved that the disputed shares were actually deposited in the appellant's account with Engineer Mehmood Akhtar mainly because 1,00,000 purchases rightly cancelled out 1,00,000 sales executed through Engineer Mehmood Akhtar's account and out of the 85,000 shares that were received by Engineer Mehmood Akhtar the appellant received delivery of 40,000 shares and claim for remaining 45,000 shares against Engineer Mehmood Akhtar was verified by LSE in favour of the appellant".
5. Heard the learned counsel for the parties. The appellant has repeated his stance as contained in the memorandum of appeal and reproduced in the opening part of this order. Learned counsel representing respondents Nos. 1 and 2 support the two orders of the Commission. Also they make a reference to a letter of respondent No.2, LSE, dated March 25, 1999 through which the findings of the Investor's complaints Settlement Committee were conveyed to the appellant. According to that letter the Committee was of the view that the complaint of the appellant against respondent No.1, Muhammad Sarfraz Ghumman was not valid for the following reason:--
(i) The documentary evidence which you have submitted in support of complaint against Mr. Muhammad Sarfraz Ghumman, MLSE, have also been submitted in your claim against Engineer Mehmood Akhtar, Defaulter Member LSE.
(ii) Your claim of outstanding delivery of 45,000 shares of FJFC have already been verified by the sub-committee of the Defaulters Committee, against Engineer Mehmood Akhtar, Defaulter Member LSE. This claim was verified on the basis of documents which you have now again submitted in support of your complaint against Mr. Muhammad Sarfraz Ghumman.
(iii) You have already received the delivery of 40,000 shares of FJFC from Engineer Mehmood Akhtar vide Bills Nos.351 and 352 dated 15-9-1997.
(iv) When the outstanding clients positions were swapped from Mr. Muhammad Sarfraz Ghumman to Engineer Mehmood Akhtar, you issued an account settlement certificate dated 20-6-1997 to Mr. Muhammad Sarfraz Ghumman, MLSE stating that you have no claim what so-ever against Mr. Muhammad Sarfraz Ghumman.
6. The aforesaid reasons, as noted above, were approved by both the Executive Director and the Appellate' Division Bench of the Commission. These findings of fact have not been challenged by the appellant on any mentionable ground. In view of the concurrent findings of the Single as well as Division Bench of the Commission I am of the view that there is hardly any scope for interference for the appellant. Particularly when these findings have not been challenged on the ground of their being without any basis. All relevant documents produced before the Commission were duly considered and discussed. It also needs to be noted that none of the documents or signatures of the appellant thereupon produced before the Commission in original as well as in Appellate jurisdiction was ever disputed by the appellant. These documents which were maintained by the Lahore Stock Exchange or its members in usual course of their business were rightly given due credit by the Commission.
7. As a rule an appeal to this Court under section 34 of the Securities and Exchange Commission of Pakistan Act, 1997 is a second appeal and therefore, its scope is governed by section 100 of Code of Civil Procedure, 1908. According to that section a second appeal to this Court lies only on three grounds, namely, that the decision was contrary to law or a usage having the force of law; that the decision had failed to determine some material issue of law or usage having the force of law and lastly that a substantial error or defect in the procedure provided by the Code- or any other law for the time being in force had happened which might possibly have produced error or defect in the decision of the case upon the merits. The appellant has not agitated any of the aforesaid three grounds to 'invoke the appellate jurisdiction of this Court. Mere repetition of facts can hardly do any good to the case of an appellant in second appeal. The concurrent findings of fact by a Tribunal of exclusive jurisdiction as specialized agency appointed by the Government cannot be interfered with in second appeal merely for the reason that on reappraisal of certain documents or factual submissions a 'different decision could have possibly been taken. The finding of fact by a specialized Tribunal, except of course which are patently without any material available on record, cannot be- disturbed in second appeal nor a fresh appraisal of the evidence brought on record can be undertaken unless one of the three conditions, as contained' in section 100, C.P.C., are answered. Since, as observed above, the appellant has failed to agitate the impugned decision on any of the three grounds warranting interference in second appeal by this Court, this appeal shall be dismissed.
8. Appeal dismissed.