1. ' MUNIB AHMED KHAN, J.--- Criminal Appeal No,228 of 2006 has been filed against the judgment, dated 20-6-2005 passed by the Special Courts (Offences in Banks) whereby the appellant has been convicted. The said criminal appeal is a conversion of C.P. No,D-98 of 2006. In this criminal appeal F.I.R. No,10 of 2003 F.I.A., CCC Karachi is subject-matter. Another C.P. No,D-229 of 20b6 is in respect to F.I.R. No,17 of 2002 of F.I.A. CCC Karachi of which proceeding are pending before Special Judge (Offences in Banks), Karachi.
2. ' Since both the criminal appeals and C.P. Have raised basic ground of jurisdiction of the Banking Court in both the F.I.Rs, therefore, they are taken up together and being disposed of by this order.
3. ' The appellant/petitioner has challenged the jurisdiction of Special Court (Offences in Banks) which has convicted him on the ground of the allegation in the F.I.R. No,10 of 2003. According to learned counsel the allegation against the appellant, at the most, are in A respect of the irregularities in export as well as allegation of mischief or fraud against the foreign trade counterpart, but there is nothing on record to show that the bank was involved in any way or the matter, in any respect, was connected to be the banking business. He has further submitted that F.I.R. Has been lodged on the instigation of Export Promotion Bureau of Pakistan which was prompted on the basis of a complaint from foreign buyer as apparent from the notice issued by the Export Promotion Bureau to him. He further submits that even the contents, of the F.I.R. Shows that there may be a dispute in respect to the business with the foreign buyer therefore, Special Court has no jurisdiction nor could the F.I.A. File any case with the Banking Court in such a complaint. He has referred the Imports and Exports (Control) Act, 1950 (hereinafter referred to as the Act) which was amended by Ordinance V of 1980 (hereinafter referred to the Ordinance) and has specifically, pointed out sections 5-A and 5-B of the said Ordinance V of 1980. He has further submitted that there may be any alleged violation of section 3 of the Imports and Exports (Control)
4. Act, 1950 which can be handled by Commercial Courts in terms of section 5-A of the Ordinance, which are empowered to exercise jurisdiction in terms of section 5-B of the said Ordinance . For the purpose of convenience section 3 of the Act and sections 5-A and B-5 of the Ordinance are reproduced as under:--- ' Section 3(1) of the Act XXXIX of 1950 3.(1) The Central Government may, by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected with the import or export of such goods, and such order may provide for applications for licences under this Act, the evidence to be attached to such applications, the grant use, transfer, sale or cancellation of such licences, and the form and manner in which and the period within which appeals and applications for review or revision may be preferred and disposed of, andthe. Charging of fees in respect of any such matter as may be provided in such order.
5. ' Sections 5-A and 5-B of the Ordinance, 1980 "5-A Commercial 'Courts.-- (1) The Federal Government may,, by notification in the official Gazette, establish as many Commercial Courts as it considers necessary and, where it establishes more than one Commercial Court, shall specify in the notification the territorial limits within which, or the class of cases in respect of which, each one of them shall exercise jurisdiction under this Act.
(2) A Commercial Court shall consist of a person who is, or has been a Sessions Judge, who shall be the Chairman, and two members, appointed from out of a panel of businessmen, executives and officers of scheduled banks drawn up by the Federal Government in consultation with the Federation of Pakistan Chambers of Commerce and Industry and the Pakistan Banking Council.
(3) The Chairman and the members of a Commercial Court shall be appointed on such terms and conditions as the Federal Government may determine
(4) A Commercial Court shall sit at such place or places as the Federal Government may direct:
(5) A Commercial Court shall have all the powers conferred by the Code of Criminal Procedure, 1898 (Act V of 1898), on a Court of Session exercising original jurisdiction.
(6) A Commercial Court shall not merely by reason of a change in its composition, be bound to recall and rehear any witness who has given evidence, and may act on the evidence already recorded by it or produced before it.
(7) A Commercial Court shall, in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for trial of cases by Magistrates and a person conducting prosecution before a Commercial Court shall be deemed to be a Public Prosecutor: ' Provided that the Commercial Court may, if it thinks fit, try any case in a summary way in the manner prescribed by the said Code for summary trials.
(8) The decision of a Commercial Court shall be final and shall not be called in question in any Court.
6. 5-B Jurisdiction.-- (1) The contravention of an order made under section 3 relating to export trade shall be tried exclusively by a Commercial Court.
(2) A Commercial Court shall not take cognizance of an offence triable under section (1) except upon a complaint in writing made by an officer of the Export Promotion Bureau authorized by its Chairman by a general or special order in this behalf.
(3) A Photostat copy of any document produced in support of a complaint made to a Commercial Court under subsection (2) shall be admissible in evidence: ' Provided that such copy is duly attested by the Pakistan Mission in the country in which such document was written or prepared or by an officer of the Export Promotion Bureau authorized by its Chairman in this behalf.
(4) A Commercial Court shall, as far as may be, dispose of a matter within a period of ninety days following the filing of the complaint: Provided that any decision of the Commercial Court shall not be rendered invalid by reasons of any delay in the disposal of a matter.
(5) Where a Commercial Court finds an exporter against whom a complaint has been made guilty of contravening any provision of an order made under section 3 relating to export trade, it may, in addition to any punishment provided under section 5, make an order requiring the exporter to deposit in Court within the time specified by the Court for payment to the foreign buyer as compensation such amount as is in its opinion equivalent in value to the loss or damage suffered by the foreign buyer: ' Provided that, where immediate payment of compensation to such foreign buyer is, in the opinion of the Commercial Court, in the best interest of the country, it may direct the payment of such compensation from out of the Revolving Fund set up by the Federal Government.
(6) The amount of compensation payable by an exporter in pursuance of an order under subsection (5) shall be recoverable as an arrear of land revenue along with interest at the prevailing bank rate for the period following the expiration of the time within which such amount was payable.
(7) The amount of compensation along with interest recovered from the exporter shall be credited to the Revolving Fund."
7. ' To emphasize his arguments the learned counsel has relied upon Qazi Mushtaq Ahmed v. The State NLR 1988 Criminal 462; Sikandar Ali v. The State 1989 PCr.LJ 613 (Karachi); 1989 PCr.LJ 613 and 1986 Law Notes (Lahore) (91).
8. ' The gist of the above. Authorities is that the matter in respect to import/export is between two private parties and allegations against the accused are not in respect to any act by which he has committed any fraud upon bank, therefore, Special Court cannot exercise jurisdiction while the Commercial Courts established under the Ordinance V of 1980 by amending the Exports and Imports (Control) Act, 1950 have to exercise jurisdiction.
9. ' On the other hand Ms. Sofia Saeed, the learned Standing Counsel appearing on behalf of the respondent contend that the Appeal No,228 of 2006 is against conviction while C.P. No,D-229 of 2006 pertains to a matter which is still pending in the Special Banking Court. She submits that the Special Banking Court has rightly exercised its jurisdiction as the appellant has admitted his guilt in F.I.R. No,10 of 2003 before the Court and on his admission he was convicted. She has further referred section 3 of the Imports and Exports (Control). Act, 1950 as amended by' Ordinance V of 1980 and has relied upon Ghulam Mustafa v. Presiding Officer, Special Court (Offences in Banks) 2003 M LD 841 and A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353. She has submitted that the matter was related to, the Bank as in the export and import process certain L.Cs. Were opened by Banks, and documentary transactions were made through the banks and that the Special Banking Courts jurisdiction was never objected to by the appellant rather he admitted his guilt, hence he cannot object to the jurisdiction now. According to her the allegation against the appellant/petitioner in both the matters falls in the schedule of the Ordinance, 1984, Offences in Respect of Banks/Special Courts Ordinance, 1984.'
10. ' After hearing the arguments of learned counsel we have perused the F.I.R. Where not a single allegation has been made which may involve the banks nor there is any allegation that any fraud or loss has been caused to the bank nor there is anything on record that the Bank has ever initiated any action against him in respect to the matter in hand.
11. ' On the other hand the allegation against the appellant/petitioner is in respect to some mischief, he has played with his foreign importer. The complaint, on the basis of which F.I.R. Is initiated, is based upon several complaints of foreign importers with the allegation that either the goods, contracted for, were not exported or were of inferior quality.
12. ' This allegation is the main cause and that can be handled under Imports and Exports (Control)
13. Act, 1950 as amended by Ordinance V of 1980. It may be pertinent to point out that the Exports (Quality Control) Order, 1973 was also promulgated in exercise of powers conferred by subsection
(1) of section 3 of the Act, 1950 and according to sections 3 and 4 of that Order some prohibitory directions have been given which are as follows:-- "3. Prohibition of export of inferior goods.-- No person shall export from Pakistan any goods which do not conform to the standard or grade designation applicable to, or the sample of such goods.
4. Prohibition of trade malpractices.--- No person engaged in export trade shall willfully,---
(a) fail to fulfil export orders or to supply goods within the agreed period;
(b) supply goods less in quantity than the goods agreed to be supplied;
(c) fail to make payment of, or to remit, the agreed commission or the amount due for services rendered; or
(d) fail to pack goods so as to protect them from damage due to faulty packing.
14. ' After going through the law, referred to above, it appears that the Government has desired that malpractices in the export to be taken separately through a separate forum by a Technical Tribunal constituted in terms of section 5-A(2) of the Ordinance V of 1980 so they should be in a better position to realize the allegations and the explanation which may be submitted by the person against whom allegations have been levelled. It further seems to be intention of the Legislature that since in Commercial transaction money/goods remained stuck up, therefore, summary procedure has been provided through the Commercial Courts. Indeed the banks are involved in most of the foreign commercial transaction and export but every malpractice or, breach of contract by the importer or exporter does not bring cause within the meaning of Special Court of Banking or the other Banking Court and specially in the circumstances when there is a special forum to deal with specific situation then except that forum no other forum can take the cognizance until and unless the causes are independent to the extent and or provided for the action by two separate forums.
15. ' After perusal of the authorities referred to by Ms. Sofia Saeed learned Standing Counsel we found that both these authorities are not relevant to the matter in hand as in both these cases bank was involved in either way while case in hand does not reflect anything which involved the bank while the authorities referred to by the learned counsel for the appellant/petitioner is on the point. The gist of these authorities is that when the matter is between the two private parties without any involvement of the bank then it cannot be tried by the Banking Court. We are not convinced with the contentions of Ms. Sofia Saeed that the Banking Court can assume the jurisdiction as certain transaction were carried out through bank or that the admission of guilt on the part of any contesting party, confers, the jurisdiction on a Court which was never vested in it by statute. Since the offence, alleged in both the F.I.Rs,, is not in respect of Banks nor connected or incidental to it, hence the Special Court has wrongly assumed the jurisdiction in the F.I.Rs, lodged on the complaint of D.G. Export Promotion Bureau. In the circumstances the order of the Banking Court dated 20-6- 2005 subject-matter in the Criminal Appeal No,228 of 2006 cannot be sustained and is set aside, the appeal is allowed. The concerned authority may seek its remedy available in the relevant forum while the proceedings in F.I.R. No,17 of 2002, which have been initiated on the basis of the above sort of allegations and is subject-matter of C.P. No,D-229 of 2006 are quashed and petition stands allowed with the observation that the concerned authorities may seek its remedy before proper forum. Consequent to this order the accused, if he is in custody may be released in the matters pertaining to the F.I.R. Nos.10 of 2003 and 17 of 2002 of F.I.A./C.C.C. (Karachi), if not required in any other case.