1. ' SAIYED SAEED ASHHA, C.J.--In this constitutional petition the petitioner has sought the following reliefs:--
(i) Declare that the impugned notice dated 16-5-2002 and the action` taken thereunder by the respondents are arbitrary, void and of no legal effect.
(ii) Declare the impugned actions of the respondents as violative of the constitutional mandates/guarantees vis-a-vis the petitioner.
(iii) Restrain the respondents from taking any coercive action against the petitioner.
(iv) Grant any other relief(s) which this Honourable Court deems just and proper in the circumstances of the case.
2. ' The brief facts of the case requisite for disposal of this constitutional petition as per memo. Of petition are as under:-- ' The petitioner was the Chairman of Bhoja Air, Private Limited Company (hereinafter referred to as "the Airline") carrying on the business of operating air service in Pakistan and had also opened a branch office in Dubai. The licence of the airline was cancelled arbitrarily by the Civil Aviation Authority but was restored by this Court. Due to the sudden and illegal act of Civil Aviation Authority, the branch of Dubai office of the Airline was also sealed by the Civil Aviation Authority, Dubai in October, 2000. One Mahmood Yousuf Mandviwala managed to obtain a. Letter from the authorities in UAE recommending action against the petitioner. In the compliant respondent No,2 alleged that petitioner had received/borrowed UAE DHS 330,000 , from complainant's brother Azeem Mandviwala and issued post-dated cheques, which were dishonoured by the bank.
3. Respondent No,4 summoned the petitioner on 16-3-2002 for enquiry/investigation, wherein his statement was recorded, whereafter respondent No,1 accorded permission for processing the case further against the petitioner holding that the offence fell within the purview of FIA. The petitioner stated that the dispute, if any, was between the two private parties and it did not fall within the purview of FIA. As the respondents did not pay any heed to the objection raised by the petitioner, he filed a constitutional petition being C.P. No,D-949 of 2001, whereby respondent No,3 was restrained from taking any action against the petitioner, whereupon the respondents stopped from harassing the petitioner. However, the petition was dismissed for non-prosecution and as the respondents have stopped harassing the petitioner, the petitioner did not move an application for restoration of the case. Upon knowledge of dismissal of the petition, the Respondents again started summoning the petitioner and harassed him which forced him to file the above petition. He further stated that vide letter dated 14-5-2004 he was summoned for recording of his statement though such statement had already been recorded earlier. It was further stated that neither the complainant nor his brother ever appeared before the enquiry officer nor the alleged cheque was even produced or shown to him. The petitioner also stated that he had come to know that red warrant has been issued against him.
4. ' We have heard the arguments of Mr. Khalid Mahmood Siddiqui, Advocate on behalf of the petitioner, Mr. Sajjad Ali Shah, learned D.A.-G., Mr. Sarwar Khan, learned Addl. A.-G., and have also perused the material on record.
5. ' For deciding this constitutional petition paragraphs 7 and 9 of memo. Of petition are very material and for the sake of convenience they are reproduced as under:--
(7) That it is pointed out that the petitioner has no relationship or even acquaintance with the complainant or his brother. The complainant has neither presented any document acknowledging receipt of the amount in question of the said cheques nor even disclosed as to where, when and on what account were these cheques issued or the bank on which the said cheques were drawn or even the signatory of the said cheques. The complainant has also not disclosed when the said cheques were presented to the bank. The complainant has not provided any supporting agreement spelling out the terms and conditions or even correspondence of the alleged transaction. The complainant has not even disclosed the nationality, location or the identity of Mr. Azeem Mandviwala of whom the complainant claims to be brother.
(9) That in view of the above facts, it is clear that the complainant has made a bogus complaint without any supporting documents, facts or circumstances. However, on 11--2-2002 respondent No,3 addressed a letter to respondent No,4 to "to confirm availability of the petitioner discretely at the given address". The petitioner was summoned on behalf of respondent No,4 on 16-3-2002 in connection with the said case. The petitioner was asked to record a statement and provide a copy of his NIC and address. During the said "inquiry", the petitioner was not confronted with any cheques or documents but only on verbal allegations, the petitioner was forced to record a statement. In his statement, the petitioner made the same submissions as in the foregoing paras.
6. The said "inquiry report" was sent by respondent No,4 to respondent No,3 on 16-4-2002. Thus, the respondents moving with surprising efficiency and haste are bent upon acting in an arbitrary and illegal manner."
7. ' Parawise comments were filed on behalf of respondent No,4. In relation to the contents of paragraphs 7 of the memo. Of petition the statement made in the parawise comments was as under:- "that the contents of para.7 have no nexus with the issues raised in the enquiry."
8. ' Relating to the reply of the contents of paragraph 9 of the memo. Of petition the statement made in parawise comments was as under:-- "That the contents of para.9 no comments as the enquiry has been initiated by the respondent on 29th May, 2002, the complainant and the petitioners have been contacted to join the enquiry. The petitioner has informed to respondent during the course of enquiry that the Interpol Abu Dhabi has also taken up the matter with NCB Interpol, Islamabad."
9. ' The respondents have alleged that the petitioner had cheated the public through fraud, forgery and embezzlement and committed offences punishable under sections 406, 408 and 471, P.P.C.
10. Which are in the Schedule of F.I.A. Act, 1974. However, neither any details relating to the commission of offences of fraud, forgery B. And embezzlement punishable under sections 406, 408, 471, P.P.C.
11. Were provided nor the law officers of the Federal and the Provincial Government were able to give details as to what acts of commission or omission had been committed by the petitioner, which would make him liable for offences of fraud, forgery and embezzlement. According to the petitioner,' the entire case of the respondents is that he had issued a cheque purporting to be towards repayment of an alleged loan obtained by him from the brother of the complainant. It is pertinent to note that complainant Mahmood Yousuf Mandviwalla, who was the affected party, who had lodged a complaint on behalf of his brother Azeem Mandviwalla stating therein that the petitioner had obtained a sum of DHS 3,30,000 from Azeem Mandviwalla for business purpose, which were to be repaid in due course of time and as security for return of the amount the petitioner had allegedly issued post dated cheques covering the amount in question but when such post dated cheques were presented to the bank on the due dates were dishonoured for lack of sufficient amount in the account of the petitioner. The question which agitates one's mind is as to what prevented Azeem Mandviwalla from lodging the complaint himself and why complainant Mahmood Yousuf Mandviwalla was required to submit a complaint to the above effect. It is also pertinent to note that the respondents never called upon the actual person Azeem Mandviwalla to appear before them to establish the factum of providing a sum of DHS 3,30,000 to the petitioner and execution of post dated cheques by the petitioner towards repayment thereof. It is also pertinent to note that a single cheque alleged to have been signed by the petitioner, which according to complainant Mahmood Yousuf Mandviwalla was dishonoured was summoned by the respondents along with the slips/memo. Witnessing dishonouring of the cheques prima facie establishing the allegations made in the complaint.
12. ' Apart from the above shortcomings and omissions on the part of the respondents, it is absolutely clear from the perusal of the memo. Of petition and the parawise comments that the dispute, if any, is between the two private parties, i.e,, the petitioner and one Azeem Mandviwalla ever alleged non-payment of loan of DHS 3,30,000 allegedly provided by Azeem Mandviwalla to the petitioner for assistance and support of his business. It was vehemently submitted by Mr. Khalid Mahmood Siddiqui that the jurisdiction of FIA did not extend to investigate disputes between two private parties even if the alleged illegal act of the erring party was committed in a foreign country cognizance thereof was taken on the complaint of an aggrieved party by the Government of that country. His contention was that the act of the affecting party by submitting a complaint to the Government or Department of a Government would not change the nature of transaction from a dispute between the two private parties to a dispute between Government or a department of Government and such was done with mala fide intention and ulterior motive to harass, pressurize and intimidate the petitioner into submission for fulfilment of their illegal and ulterior motives. He further submitted that the absence of Azeem Mandviwalla and non-production of the alleged dishonoured cheques together with the relevant slips/memo creates serious doubts with regard to the veracity and truth of the allegation and lends support to the contention of the petitioner that through his 'complaint, complainant Mahmood Yousuf Mandviwalla was seeking the help of FIA for harassing, coercing and intimidating the petitioner into submission for recovery of alleged DHS 3,30,000, which would amount to a civil dispute and for that purpose he seemingly on account of his social status and position managed to obtain a letter from the Government/Governmental authorities of UAE for forwarding the complaint to the respondents with recommendation to take action against the petitioner.
13. ' Mr. Khalid Mahmood Siddiqui further submitted that even if the contents of the complaint are taken to be true for the sake of argument then at the most the petitioner could be held liable only for an offence of issuing a bogus cheque punishable under section 489-F, P.P.C. And by no stretch of imagination offences of fraud, forgery or embezzlement could be made out. He further submitted that the offence punishable under section 489-F has not been included in the schedule of the offences which fall within the jurisdiction of FIA and any enquiry/investigation forwarded by the FIA relating to the above offence is absolutely without jurisdiction, illegal and void. In support of his above contention he referred us to the case of Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others reported in 1999 PCr.LJ 1584, wherein a learned Division Bench of the Lahore High Court while dealing with the question of jurisdiction of FIA to investigate the cases observed that FIA could investigate only those cases, which were given in the Schedule attached to the Act and the same were alleged to have been committed either by a public servant or were allegedly committed in connection with matters pertaining to Federal Government or by employees of the Corporation set up, controlled and administered by the Federal Government. It has further been observed that the jurisdiction of FIA did not extend to investigate into cases between the private persons or offences committed by private limited companies. Investigation carried on and challan submitted in Court by FIA in such cases was declared to be without jurisdiction.
14. ' For the foregoing discussions and reasons we find that the action of FIA in summoning the petitioner repeatedly and holding the enquiry into the alleged offence on the basis of the complaint filed by complainant Mahmood Yousuf Mandviwalla on behalf of his brother Azeem Mandviwalla is without jurisdiction as the dispute is basically between the two private parties namely, the petitioner and the said Azeem Mandviwalla, wherein complainant Mahmood Yousuf Mandviwala has managed to obtain a letter from concerned department of the Government of UAE for forwarding the compliant to FIA for investigation for causing harassment, intimidation and coercion to the petitioner for submitting him to fulfil their mala fide and ulterior motives.
15. ' Accordingly, this constitutional petition is allowed and it is held that the investigation/enquiry being conducted by the F.I.A. Against the petitioner on the basis of the complaint of Mahmood Yousuf Mandviwalla and the letter of the UAE Government is without jurisdiction and illegal. They should refrain from such enquiry and investigation and stop summoning the petitioner to their office in future. It will be open to complainant Mahmood Yousuf Mandviwalla and Azeem Mandviwalla to proceed against the petitioner in accordance with law.