KAZIM ALI MALIK, J.- Muhammad Ilyas and Muhammad Hanif Haidery, sons of Abdul Aziz, residents of Gujrat City, petitioners herein have sought anticipatory bail apprehending their imminent arrest in a case F.I.R. No,438 dated 22-5-2008 under section 392 P.P.C. Registered with Police Station Civil Lines, Gujrat.
2. Brief facts giving rise to the registration of the case may be given first:-- ' One Wahab Javed Butt purchased car No,GTJ-0008 from Faysal Bank Ltd. Gujrat Branch under lease purchase agreement. The purchaser defaulted in payment of instalments of the leased vehicle in accordance with the agreed payment schedule. On 22-5-2008 at 7-30 p.m. Tanvir-ul- Hassan, complainant and Ch. Nasar Hussain, P.W. Repossessed or attempted to re-possess the leased car while being occupied by the petitioners and others and claimed that they (P.Ws) had been authorized by the Bank to re-possess the leased vehicle on account of default in payment of instalments. The petitioners resisted the process of repossession of leased car and raced it away.
Tanvir-ul- Hassan got registered the case with an allegation that the petitioners and their coaccused snatched the leased vehicle which had been repossessed by them and that they also deprived him of Rs, 10,000 cash and cell phone.
3. Learned counsel for the petitioners has contended that there was a bona fide dispute touching terms and conditions of lease-purchase agreement between the lessee and tlfe Bank which they resolved amicably and that it was not permissible under the law to authorize a private person to repossess leased vehicle on any ground.
4. Admittedly, the leased vehicle was in possession of Muhammad Ilyas, petitioner when the complainant repossessed or intended to repossess the same on account of default in payment of instalments. For two reasons, I am in agreement with the learned counsel for petitioners that there was no legal and factual justification on the part of the complainant to intercept the leased car or to repossess it forcibly. First, the Bank by means of an agreement for repossession of leased vehicles (Marfc-A) authorized Nasar Hussain P.W. To repossess the vehicles of defaulting customers/purchasers. Here I would say that the Bank was/is not competent to authorize a private person to operate as law enforcer by means of an agreement or contract. When questioned the learned counsel for the complainant also could not show any document/license from the Government, authorizing him to carry on such business or to enter into such agreements with the banks/financial institutions for implementation of the terms and conditions of agreements made with their customers. For the $ake of arguments, if it is admitted that some customers including the petitioners defaulted in ^ payment of instalments, even then there was no legal justification for the Bank to assume the role of law enforcing agency through private contractors for the purpose of execution of the terms and conditions of the agreement with the lessee-purchasers. In the given circumstances, the only course open to the Bank was to seek institutional support of the Court of law, the police, the District Administration, The TehSil Administration or even the Revenue Department. The learned Law Officer having examined the Banking Laws, the Cr.P.C. And all other relevant special laws could not find any provision of law which may authorize or permit the Bank to hire the services of contractors for B implementation of terms and conditions of lease-purchase agreements with customers. The learned Law Officer very rightly conceded that the Bank adopted a self styled procedure by engaging private Contractors for implementation of contracts and agreements with the customers instead of having re-course to the legal remedies before the legal forums. Secondly, mens rea is the essence of each and every offence, which is missing in the case in hand. The only grievance of the Bank against the customer was that he failed to pay the instalments on due date. It was not a criminal act or an offence on the part of die customer.
Outstanding instalments of the leased vehicle was a civil liability. The petitioners established their bona fide by making payment of outstanding dues. I have been informed that the Bank has already issued clearance certificates (Mark-B and Mark-C) to the effect that nothing was due to the Bank from the customer in respect of the leased vehicle.
5. Learned counsel for the complainant attempted to argue that. The petitioners also snatched cell phone and Rs, 10,000 from the complainant while resisting the process of re-possession of leased vehicle. He placed reliance on the case law laid down in Wahid Bukhsh and others v. The State 2008 YLR Karachi 1565 and contended that in view of nature of the allegation the petitioners were not entitled to the extra ordinary relief of pre-arrest bail.
6. Keeping in view the mode and manner of the incident given in the F.I.R. The allegation with regard to snatching of cell phone and Rs, 10,000 from the complainant is open to further inquiry and serious doubt. The complainant attempted to repossess the leased vehicle when the petitioners resisted successfully. In this background it does not appeal to reason that the petitioners whose only and prime object was to resist the process of repossession of the car would snatch cell phone and Rs, 10,000 from the contractor/complainant. It was a mere self assertion by the complainant. The case law, referred to above is of no help to the complainant because the facts of the said precedent case are altogether different from that of the case in hand.
7. For what has .Been stated above, I am of the view as a result of tentative assessment of the entire material that the allegation against the petitioners is tainted with mala fide. I, therefore, confirm interim pre-arrest bail of the petitioners against the bail bonds already submitted by them.
8. Before parting with this order, I must ay with concern that services of private persons are hired by the banks as contractors in order to re-possess the defaulting vehicles and nobody knows who these private persons are and what are their antecedents. The learned Law Officer has conceded that no such instructions have been issued by the Government. This is a shocking and dangerous state of affairs. I am afraid that if this practice is allowed to rampant and is not taken seriously, it may create law and order situation. The Bank is not possessed with the powers and functions of law enforcing agency. It is not understandable as to how the Bank delegated the power to a private contractor, which did not/does not vest in the Bank. I have no doubt in my mind that the Bank did not remain with in its allotted sphere while authorizing private persons to implement terihs and conditions of lease-purchase agreement against the customers. It was a private arrangement between the Bank and the contractor touching an important question of enforcement of agreement against a person who was not a party to the arrangement between the Bank and the contractor. I may add that this is a kind of subject which should be regulated by proper legislation and the concerned Government should immediately take steps to consider the advisability of making laws to regulate the functioning of the banks through private contractors. Copies of these orders shall be sent to the Secretaries of the Ministry of Interior and Ministry of Finance, Government of Pakistan and also to the Secretary of the Home Department, Government of Punjab.