' A case F.I.R. No,9 dated 21-2-2009 under sections 4,5,8 (1), 23 of Federal Investigation Agency Act, 1947/409, 420, 468, 471, 109, P.P.C. And 4,7,8,9 of PECO was registered with Police Station FIA, Crime Circle, Lahore against Zarco Exchange (Pvt.) Limited, Ravi Road, Lahore (hereinafter referred to as the company). Lakht-i-Husnain, Chief Executive or the company filed application for pre-arrest bail (Criminal Miscellaneous No, 9800-B of 2009) in this Court. On 20-8-2009, the said bail application came up for hearing before us, when number of affectees of the company appeared before us and exclaimed with sorrow that they had been ruined and deprived of their valuable moneys while playing fraud by the Company. They also made written applications annexed herewith, wherein each one has narrated his story that how he was defrauded by the employees and owner of the company. Seeing the extreme grievances of each of them one of us (the Chief Justice) decided to take suo motu notice of grievances of the affectees. The suo motu notice was converted into Writ Petition No, 15990 of 2009. We directed the FIA authorities to submit report and appear before this Court to explain the position. The bail application of Lakht-iHussain was, however, dismissed. His learned counsel Mr. Ali Zafar, Advocate, continued appearance on behalf of the Company in the suo motu proceedings also. Today, Sardar Asmat Ullah Khan, Advocate, has submitted power of attorney and Argued the case on behalf of Lakht-i-Hussain.
2. The case was argued at some length on behalf of all- the concerned on 1-9-2009. However, at the end we thought it appropriate to afford an opportunity to the parties to sort out a method of payment to the affectees. Today, both the counsel for company and the Director General of FIA have admitted that they had held meetings to settle the matter, but, however, they could not agree on any settlement. We, therefore, want to proceed further.
3. Earlier both the parties were heard and their contentions were recorded by us in our order dated 1-9-2009, which shall form part of this order. In continuation of the earlier arguments, the learned counsel for Zarco Company further submitted that the Zarco Company is a legal entity and it is not only a body but an institution, where there are 3000 employees earning their livelihood, and the business of the company had been bringing foreign exchange for the country and thousands of the Pakistani got remittances of their moneys from Pakistan to overseas and from overseas to Pakistan. According to the learned counsel if the company is made a running concern it will not only benefit many but also be able to pay back the amounts of affectees within three or at the most within six months of its restoration. It is next argued that in case the company will not be able to clear off all its debts within six months then its voluntary liquidation may take place. It is submitted that the company wants to regain its credit and the owner would do all possible efforts and he has faith that further investment may come from new investors, which will make the company a going concern free of all debts and encumbrances much earlier than the three months.
4. Main thrust of Barrister Ali Zafar, counsel for the company, on previous dates and today also during the arguments today is that this Court cannot proceed against the company while invoking its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
According to the learned counsel the Zarco company is not a public functionary but a private entity, therefore, writ of any kind cannot be issued against it. Second limb of his arguments to oust jurisdiction of this Court is that Zarco company is a separate legal entity and it can only be proceeded against under the Companies Ordinance and any action by this Court as against the company and its assets including the security lying with the State Bank may amount to its liquidation.
4-A. Sardar Asmat Ullah Khan, Advocate, for Lakht-i-Hussain, proprietor of the company, has submitted his power of attorney and argued that while taking suo motu notice of the matter, this Court is interfering in the investigation of a criminal case; that the FIA authorities had burst into the smooth working of the Zarco company creating a mess and the affectees are outcome of the mess created by the FIA authorities.
5. On the other hand, Mr. Tariq Khosa, Director General, FIA,Mr. Rehan Nawaz, Advocate, for State Bank of Pakistan and Mr.Shahbaz Sarwar, Joint Registrar, SECP have vehemently opposed the restoration of the company and let it to start its earlier business. Mr. Tariq Khosa, Director General FIA has further stated that he had meetings with the learned counsel for company, but there was no agreement on a joint mode of payment to the affectees and in the circumstances , the FIA authorities have suggested an interim arrangement of payment to the said affectees. The written proposal of the FIA is as under:-- "(i) Legitimate and legal private individual claims of the company can be paid out of the amount held as security by the SBP. The same could be completed by the already proposed Committee mechanism.
(ii) The Franchisees had commercial agreements with Zarco which owes to them the securities and other claims. Their cases may be kept pending till the finalization of trial by the Competent.
Court.
(iii) The properties of the company and that of the owner and main beneficiary have been identified and action initiated for their seizure. FIA commit to finalize the investigation as soon as possible but not later than two months. This Honourable Court may kindly pass appropriate orders to the trial Court fixing the duration of the trial and mode of payment to the remaining. Aggrieved entitles including franchisees and payment booths at the time of final Court order."
5-A. We have given anxious consideration to the arguments of the learned counsel for the parties and report submitted by FIA authorities.
6. At the very outset we want to take up the objection raised by the learned counsel for' Zarco Company as regards to jurisdiction of this Court. No doubt Article 199(i)(a) of the Constitution provides that the High Court has jurisdiction to declare an action, inconsistent with fundamental rights, by a person's performing functions in connection with the affairs of the Federation, Province or local Authority to be declared illegal and without lawful authority, but at the same time clause
(c) of Article 199(i) widens the scope of jurisdiction of the High Court in issuing a direction to meet the ends of justice. Clause (c) of Article 199(i) is reproduced here below:-- "(c) on an application of any aggrieved person make an order giving such direction to any person or authority, including any government exercising any power or performing any function, in or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II"
' This clause does not restrict the jurisdiction to the extent of Government functionaries but extends it to any person or authority. Reliance in this regard may be placed on the case Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 Supreme Court 507). Relevant portion is reproduced hereunder:-- "There also seems to be force in the contention that the Honourable High Court was not justified in dismissing petitions under Article-199 of the Constitution where enforcement of fundamental rights guaranteed inter alia under Articles 11,14 and 15 was sought. In the above context it needs to be kept in view that apart from the jurisdiction vested in the High Courts by virtue of clauses (a) and (b) of Article 199 (i) a special jurisdiction is conferred by clause (c) (which a High Court shares with the original jurisdiction of this Court under Article 184(3)"
' It has been further held as under:- "We are therefore clearly of the view that the High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties. Accordingly direction for positive enforcement of fundamental rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Articles 11, 22 etc. Which might in most cases require enforcement against such parties."
' Secondly the Zarco is limited company incorporated under the Companies Act invested with statutory and public duties. State Bank of Pakistan has authorized the Company to receive public money for remittance to destinations on the direction of the senders. Since the very object of the public interest litigation is to ensure public interest and protection of legal or constitutional right of disadvantaged and oppressed groups of individuals and to render social and economic justice to them there cannot be any reason why in a fit and proper case the Court would hesitate to entertain a public interest action against any non-governmental institution or any person invested with statutory or public duties or public obligations, when their omission or commission affects the rights of disadvantaged groups or individuals who do not find any way for vindication of their grievance. There can be such a situation when some persons may not even aware to their rights and about violation thereof and their exploitation. It cannot be said that under such circumstances, a public interest litigation cannot be maintained for protection and vindication of rights of such aggrieved group of people. We are, therefore, not in agreement with the learned counsel that the company being a private person cannot be sued and proceedings cannot be taken against it in Constitutional jurisdiction.
7. The jurisdiction of this Court has also been objected to on the ground that Zarco Company is a company incorporated under the Companies Ordinance, which cannot be proceeded against and its assets cannot be disbursed otherwise than by proceedings under the Companies Ordinance. No doubt liquidation of the company can be made under the Companies Ordinance, but at the same time the company is liable to make good any loss or injury caused by it while doing some criminal acts or omissions. We have found a precedent of Indian High _Court of Calcutta in the case State of West Bengal v. Union of India and others (AIR 1996 Calcutta 181). Relevant portion of the verdict is reproduced below:-- "The objection of the respondents in granting the relief asked for on the ground that the same will operate harshly against them as practically the same would amount to liquidation of their business on winding up the company is not tenable. It has already been pointed out hereinbefore the 1987 Directions were issued by the Reserve Bank of India in public interest as a social piece of legislation for the avowed purpose of securing and safeguarding the interest of the conuntless small depositors who belonged to weaker section of the community and for ensuring return of their deposits and therefore, R. N. B. Cs, -including the present respondent R.N.B.Cs have been invested with the Public duty and owned a positive obligation to the small depositors to strictly follow the aforesaid 1987 Directions for safeguarding and securing the interest of the small depositors. But the concerned respondents R.N.B.Cs having violated such directions and having made in secured investments in violations of the aforesaid 1987 Directions and even diverting and siphoning funds to its subsidiaries and directors, now cannot complain that the relief asked for if granted would operate against them harshly and amount to practically liquidation of business."
' We, therefore, overrule that the objection of the learned counsel that this Court in exercise of.
Constitutional Jurisdiction cannot look into the grievances of the affectees of Zarco Exchange Company and pass any direction for safeguarding and securing the interest of the affectees.
8. The request of learned counsel for Zarco Company that the company may be made a going concern, so that it may be able to make payments to the affectees is not acceptable to the FIA and even to the State Bank. The State Bank through its representative have also refused to restore licence of the business to the company. We also cannot allow such request for multiple reasons.
Firstly, this Court cannot interfere in the functions of State Bank of Pakistan and also in the investigation conducted by the FIA. Secondly, the allegation of mal-practices and misappropriation are against the company and it has claimed that the whole business was being done in violation of the authority and duty vested in it. In such a situation, unless the allegations are proved false at the trial, no permission can be granted for revival of the Company, as it would amount to repetition of offence.
9. We do not want to dilate much upon the merits and demerits of the allegation against the company, as the matter is pending before the Trial Court and the Investigating Agency, ,We are only concerned to the extent of grievances of the affectees, who claimed to have deposited millions of rupees with the company for getting its remittances to the destinations of their choice, but the company has misappropriated their amounts. The affectees mostly include such persons, who for fulfilling urgent necessities of their lives wanted to remit the money in foreign exchange to their beloved (relatives or friends) in foreign countries, deposited money with the Zarco Company for remittance, but neither the money was received by the receivers nor it was returned to the senders. For example one of the affectees had sent a groups of students to Malaysia on tour. He had sent Rs,11,70,000 to an agent at Malaysia for the expenses of travelling and stay at Malaysia of the students, but the amount did not reach to the concerned quarter. The students being penniless were detained by the Malaysian government and after sending further money they were released and returned back to Pakistan. Another affectee sent 5000 Pound Sterling (Rs,6,76,000) to his son in U.K., but the amount was not received in the Bank account of his son resulting loss of study of the son of affectee. Another affectee had sent money to U.S.A. As her daughter was going to be operated upon for some diseases through Zarco Company but that did not reach its destination.
These are only the few examples.
10. In view of the above, we deem it appropriate that the repayment proposal submitted by the FIA that in the first phase the, claim of the affectees, who had made deposits with the Zarco Company for remittance of amounts, may be satisfied from the reserved amount vesting with the State Bank of Pakistan as security. We, therefore, direct the FIA authorities to disburse the amounts of the affectees falling in the first category as per its report out of the security amount lying with State Bank of Pakistan before the coming Eid. An indemnity bond would be obtained from each of the affectee that in case at trial their claims are found to be bogus or frivolous they would return the amount paid to them. It is also made clear that this arrangement shall be subject to the final decision of case after trial. The case is adjourned to 5-10-2009.