JUDGMENT SH. AHMAD FAROOQ, J.---Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the legality of a notice for enquiry, dated 8-7-2010, issued by respondent No.3/Assistant Director, Federal Investigation Agency, Lahore as well as the proceedings, being conducted thereon.
2. The brief facts, relevant for the disposal of the instant petition, are that the petitioner/Pakistan Engineering Company Limited, Lahore, through its agents or authorized representatives, has been purchasing certain articles/M.S. Angles from respondent No.4 Q/M/s A.F. Steel, Re-rolling Mills from time to time, and at one stage, a quantity of 226.760 M/Tons of the aforementioned articles/M.S Angles was rejected by the petitioner company, being of inferior quality. The respondent No.4 was intimated to lift back the aforesaid rejected material after final settlement of accounts through authorized representative, vide letter dated 5-5-2010 and thereafter, the aforesaid 226.760 M/tons rejected M.S. Angles were lifted back. After 20 days of the aforesaid full and final settlement of the accounts, the petitioner company was served with a legal notice on behalf of respondent No.4 alleging therein that the aforesaid full and final settlement of accounts was got signed from the authorized representative without allowing him to read out the same and in fact, 457.59 M/ton of material, in addition to the lifted back material, is lying with the petitioner company and a demand was made either to return 457.59 M/tons or payment of its price. The petitioner company gave a written reply of the said legal notice, wherein, the claim of 457.59 M/tons was denied and it was stated that the accounts have been settled finally and nothing is due against the petitioner company. Thereafter, the respondent No.4 moved a complaint before respondent No.1 against the petitioner company and others for recovery of 457.59 M/tons of material or the price thereof. It was in pursuance of the said complaint that the petitioner company was served with the impugned notice, dated 8-7-2010, by respondent No.3.
3. Respondents Nos.1 to 3 submitted their report and parawise comments, wherein they contended that the Federal Government owns 33% shares of the petitioner company and as such, F.I.A. Has jurisdiction to take cognizance of the matter in dispute. The respondents further contended that F.I.A. Can take cognizance where wrongful gain or wrongful loss has been caused by a Federal Government owned department/company. However, the answering respondents did not conclusively deny that the matter between the parties is of civil nature.
4. Learned counsel for the petitioners submitted that the filing of the complaint by respondent No.4 and consequent proceedings by respondent No.3 are prompted by mala fide intentions for the reason of rejection of material by the petitioner company. He further contended that on the face of record, at the most, the dispute is of civil nature between two companies, requiring rendition of accounts and exclusive jurisdiction to adjudicate upon such matters vests with the civil court of competent jurisdiction and the F.I.A. Has no lawful authority to intervene in such matters. He argued that a civil dispute has been converted into criminal proceedings so as to bring the weight of criminal law to bear upon the shoulders of the petitioner company to compel it to accept the illegal demand of respondent No.4. Learned counsel for the petitioners next argued that it is a well settled that there is a tendency to enforce civil liability through the machinery of criminal law, which tantamount to abuse of process of law. He maintained that the petitioner company is governed by the Company's Ordinance, 1984. Its major shareholding vests in the private public, and its affairs are administered and controlled on the principle of majority, only three directors, out of a total 9 directors' are nominated by the Government, therefore, the Federal Government is neither the administrative nor controlling authority of the petitioner company. He maintained that the Federal Investigation Act has been enacted to investigate into the offences in connection with matters concerning the Federal Government and matters connected therewith and the jurisdiction of F.I.A.
Only extends either to the public servant of Federal Government or employees of those companies, whose administrative or controlling authority vests in the Federal Government, hence, F.I.A. Has no jurisdiction to register and investigate a case against the petitioner company or its employees. He claimed that from the contents of complaint, ho scheduled offence is made out against the petitioners. Lastly, he argued that in any case, no loss has occurred to the public exchequer or the Federal Government.
5. Conversely, learned counsel for respondent No.4 submitted that the petitioner is a Public Limited Company and the Federal Government is its major shareholder, holding 33% of the shares.
Moreover, the Federal Government appoints three Directors and the Chairman, out of total of 9 Directors, and the Chairman has a right to cast a second vote in case of equality. Hence, the Federal Government has complete administrative control over the affairs of the petitioner company and as such, the FIA has jurisdiction to register and investigate a case. He further submitted that the offence of criminal breach of trust is made out against the petitioner company and the same is included in the schedule to FIA Act, 1975. Finally, he argued that no violation of any fundamental right is involved in this case and as such, the instant petition is not maintainable.
6. I have heard the learned counsel for, the parties and given anxious consideration to the arguments addressed by them, in addition to examining the record.
7. First of all, I would like to deal with the question of maintainability of the instant petition. As per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is an inalienable right of every citizen of Pakistan to be treated in accordance with law. Similarly, Article 18 of the Constitution protects the freedom of C trade, business or profession, subject to such qualifications, if any, as may be prescribed by law. In this respect, I would like to refer to the judgment reported in Adam Jee Insurance Company Ltd. And others v. Assistant Director Economic Enquiry Wing Federal Investigating Agency 1989 PCr.LJ 1921 wherein it has been held that High Court can invoke writ jurisdiction qua a notice, which was found to be outside scope of powers of F.I.A. Furthermore, it is a settled proposition of law that an investigation, launched beyond jurisdiction, is mala fide and without lawful authority, which can be struck down by the superior courts. In arriving at this conclusion, I am fortified by the views expressed in the judgments reported in Muhammad Irshad Khan v. Chairman, National Accountability Bureau and 2 others (2007 PCr.LJ 1957), Chairman National Accountability Bureau and another v. Muhammad Irshad Khan (2008 SCM R 1012) and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another (2010 SCM R 624).
8. Having decided the maintainability D of the instant petition, I advert to the admitted facts involved herein. There are business dealings of sale and purchase between the parties and in this connection, a letter was issued by the petitioner company to respondent No.4, on 5-5-2010, intimating therein that a quantity of 226.760 M/Tons rejected M.S. Angles is lying with it and respondent No.4 can lift the same at any moment, after settling the account. Admittedly, the said letter is signed by the authorized representatives of respondent No.4 in token of its receipt and thereafter, the authorized representative has also signed a declaration of full and final settlement of accounts in token of its correctness. After 20 days of the settlement of accounts, a legal notice on behalf of respondent No.4 was sent to the petitioner company, wherein, the sum total of the demand was either the return of 457.59 M/Tons or its price. The petitioner company sent written reply, wherein, the claim was controverted, whereafter the respondent No.4 lodged the complaint with the F.I.A. And the crux of the prayer, made therein, is the recovery, of 457.59 M/Tons of material or its price. The afore referred facts do not spell out the commission of any offence, rather, the same go to prove that the dispute, if any, between the parties is purely of civil nature.
9. So far as, legal questions are concerned, it would be advantageous to refer to some of the provisions of the F.I.A. Act, 1974 (hereinafter called the Act). The preamble of the Act reads as under:-- "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and the matters connected therewith"
Section 2(e) of the Act reads as under:-- "Public Servant" Means a public servant as defined in section 21 of the Pakistan Penal Code (Act XLV of 1860), and includes an employee of any corporation or other body or organization set up, controlled or administered by (under the authority of,) the Federal Government."
10. The perusal of the aforesaid provisions in juxta position shows that the object of the Act was to set up an Investigating Agency for the offences committed in connection ' with matters concerning the Federal Government and matters connected therewith. Admittedly, the complaint lodged in the instant case has no nexus with the object cited above. Moreover, neither any employee of the Federal Government is involved nor the petitioner company is under the administrative and controlling of the Federal Government nor any loss has occurred to the Federal Government.
Hence, F.I.A. Has no authority and jurisdiction to take cognizance in this case. In this connection, a reference could be made to the judgments. Reported in the cases of Iftikhar Hussain and others v.
Government of Pakistan and others (NLR 1996 AC 193), Zafar Iqbal and 3 others v. Ghulam Abid and 2 others (1995 M LD 1285), Dr. Syed Rehmat v. Deputy Director F.I.A. (1999 PCr.LJ 1549) and Printing Corporation of Pakistan v. Province of Sindh and others (PLD 990 SC 452).
11. The upshot of the above discussion is that the dispute between the parties is purely of civil nature and F.1.A has got no jurisdiction to conduct an enquiry/investigation in the matter.
Consequently, the impugned notice, dated 8-7-2010, and the proceedings, being conducted thereon, are declared to be without jurisdiction and lawful authority. Hence, the instant petition is, accordingly, accepted.