FAZLUR REHMAN KHAN, J.--- Mian Muhammad Ajmal and one other have filed the present writ petition against the State and 3 others for the quashment of F.I.R. No,166, dated 12-9-2002, under section 408/34, P.P.C. of Police Station Hattar and subsequent proceedings thereto.
2. The brief facts, giving rise to this writ petition, are that Mian Muhammad Ajmal is the Chief Executive of Messrs Blossom Towels Industries (Pvt.) Limited, Hattar, District Haripur. He obtained a loan of Rs,7.680 millions in February, 1992 from the Industrial Development Bank of Pakistan, respondent No,4, for the purchase of locally fabricated machinery. Mst. Yasmin Ajmal, petitioner No,2, who is the wife of petitioner No,1 stood guarantor for the payment of loan. Petitioner No,1 made successive defaults in payment of the loan. Accordingly, the I.D.B.P. instituted a suit for recovery of the loan against the petitioners in the Banking Court, Rawalpindi, which was decreed on 15-3-2002.
During the execution proceedings, the machinery fixed or lying in the factory premises was attached. However, after attachment, major parts of the machinery were removed from there.
3. Respondent No,4 filed an application under section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter called the Ordinance) in the learned Banking/Executing Court for action for removal of the machinery from the factory premises against petitioner No,l.
After conducting enquiry, the learned Banking Court by an order dated 11-11-2002 arrested petitioner No,1 and sent him to jail with the directions that if he executes a bail bond in the sum of Rs, 1,77,00,000, equal to the decretal amount, to the satisfaction of the Court, he shall be released from jail. It appears that on'his failure, petitioner No,1 spent nine months in Adiala Jail Rawalpindi. In the meantime, respondents Nos,2 to 4 through its V.P./Manager, I.D.B.P., Islamabad, sent a written complaint dated 12-9-2002 to S.P. Haripur about the removal of the machinery from the factory premises by petitioner No,1, on the basis of which, a case F.I.R. No,166, dated 12-9-2002 under section 408/34, P.P.C. was registered against the petitioner in Police Station Hattar, District Haripur.
4. Through the present writ petition, the petitioners have challenged the legality of this F.I.R. and have prayed for .its cancellation.
5. We have heard Mr. Khurram Ghias Khan, Advocate, the learned counsel for the petitioners, Qari Abdul Rashid D.A.-G. for respondents Nos,1 to 3 and Malik Mahmood Akhtar, Advocate for respondent No,4 and have also perused the record.
6. In support of the writ petition, the learned counsel for the petitioners contended that petitioner No,1 has already been adequately punished by the learned Banking Court and the alleged offence, if any is exclusively triable by the Banking Court established under section 5 of the Ordinance and no other Court has got jurisdiction to try such an offence. As such, the registration of the case vide the impugned F.I.R. is not only based on mala fides and illegal but also amounts to double jeopardy. In support of his argument, he referred to subsection (4) of section 7 and clause (c) and subsection (1) of section 20 of the Ordinance and also placed reliance on (1) 1993 PCr.LJ 1056 and
(2) PLD 2001 Lah. 399.
7. In order to appreciate the arguments of the learned counsel for the petitioners, it would be appropriate to reproduce below subsections (4) and (5) of section 7, clause (c) and relevant portion of clause (d) of section 20 of the Ordinance:-- "7. Powers of Banking Courts (1).......................................................
(2).......................................................
(3) .......................................................
(4) Subject to subsection (5), no. Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the existence or otherwise of a finance and the execution of a decree passed by a Banking Court.
(5) Nothing in subsection (4) shall be deemed to affect
(a) the right of a financial institution to seek any remedy before any Court or otherwise that may be available to it under the law by which the financial institution may have been established; or
(b) the powers of the financial institution, or jurisdiction of any Court such as is referred to in clause (a); or require the transfer to a Banking Court of any proceedings pending before any financial institution or such Court immediately before the coming into force of this Ordinance.
20. Provisions relating to certain Offences, (1) Whoever, (a)...............................................
(b)...............................................
(c)subsequent to the creation of a mortgage in favour of a financial institution, dishonestly alienates or parts with the possession Of the mortgaged property whether by creation of a lease or otherwise contrary to the terms thereof, without the written permission of the financial institutions; or
(d) 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 three years and shall also be liable to a fine which may extend to the value of the property or security as decreed or the market value whichever is higher and shall be ordered by the Banking Court trying the offence to deliver up or refund to the financial institution, within a time to be fixed by the Banking Court, the property or the value of the property or security.
Subsection (5) of section 7 of the Ordinance speaks of:--
(i) The right of a financial institution to seek any other remedy before any Court available to it under the law by which the financial institution is established;
(ii) the powers of the financial institution or jurisdiction of any Court under the law as referred to in
(i) above; (iii)the transfer to a Banking Court of any proceedings pending before any financial institution or such Court immediately before coming into force of this Ordinance.
As such, the provisions of subsection (5) of section 7 of the Ordinance are not relevant to the present case.
8. The disputed property was admittedly under hypothecation to respondent No, 4. (I.D.B.P.) for return of loan and removal of the same, without its consent, constituted an offence under clause
(c) of subsection (1), punishable under clause (d) of subsection (1) of section 20 and the provision of subsection (4) of section 7 of the Ordinance, is quite clear that no other Court than the Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of the Banking Court extends under the Ordinance, as such, the registration of the case vide the impugned F.I.R. against the petitioners is without jurisdiction and lawful authority.
9. Besides, under the law nobody could be punished twice for the same offence on the basis of maxim "nemo. debts bias vexary", which means that no person can be tried for the second time for an offence with which he was previously charged. This principle fundamentally embodied in (i) subsection (1) of section 430, Cr.P.C., (ii) section 26 of the General Clauses Act, 1897 and (iii) Article 13(a) of the Constitution of Islamic Republic of Pakistan; 1973.
10.In the case in 1993 PCr. LJ. 1056, the Honourable Lahore High Court, after quoting a number of authorities held:-- "As per law declared in the judgments cited from both sides the established legal position emerges is that if the second F.I.R. is based upon an independent incident and version other than one which is the subject-matter of the previously registered F.I.R. it can be registered. However, in case where the second F.I.R. is a counterblast and in fact a counter-defence version of the accused persons of the previously registered F.I.R. a second F.I.R. cannot be registered."
11.In the case reported in PLD 2001 Lah, 399, it was observed:-- "(10) While the High Court considers an application like the present one, the grounds to be kept in view are whether there was a jurisdictional defect, a patent violation of some provisions of law, whether the allegations as contained in the F.I.R. even if believed would make out no case and the continuation of proceedings would amount to sheer abuse of process of Court, whether an endeavour is made to enforce a civil liability through machinery of Criminal Courts. This Court feels that all the grounds are available as far as this case is concerned. A civil liability was being enforced through a criminal action. Whereas appropriately the remedy which is being pursued before a Banking Court was the one more proper."
12. As in the instant case, the learned Banking Court has already taken cognizance of the matter and the- same, irrespective of the fact whether it is a civil liability or criminal or both, exclusively lies within its jurisdiction, therefore, the registration of the case vide the impugned F.I.R. against the petitioners is not only without jurisdiction and lawful authority but the trial of the petitioners in pursuance of the same would also amount to double jeopardy, which is not permissible under the law.
13.Accordingly, we accept this writ petition and quash the impugned F.I.R. and the subsequent proceedings thereto with no order as to costs.