' SALMAN HAMID, J.---F.I.R. No,52 of 2008 under sections 420, 468, 471, 34 and 109 Pakistan Penal Code at FIA Crime Circle, Karachi was lodged, by Al-Arfan Electronics Trading LLC, Daira Dubai, United Arab Emirates, on 25-8-2008 through its duly constituted attorney Muhammad Raza Merchant, (the applicant) against Ghulam Muhammad, son of Muhammad Siddique and Muhammad Nazim Minai, son of Muhammad Aslam Minai, proprietor and export manager respectively of Jawwad International, Karachi (respondents Nos.2 and 3); Faisal Maqsood, son of Maqsood Ali Khan, proprietor East Asian Logistics Incorporated, Karachi, (respondent No,4), Muhammad Salim, son of Muhammad, partner Mehran Industries, Karachi (Respondent No,5); Abdul Basit son of Abdul Qadeer, director Al-Diriya Textile, LLC, Bur Dubai U.A.E., (respondent No,6); Tariq Shaikh, Unique Sea Cargo Services LLC, Dubai U.A.E., (respondent and Habib Metropolitan Bank Limited, SITE Branch Karachi, (respondent in respect of cheating, fraud and forgery by them and causing loss to the applicant of Pak Rs,4,100,000 and of US $.68,351.15. (till the period April-July, 2007).
2. On the basis of such F.I.R., the Inspector FIA, Crime Circle, Karachi, investigated into the matter and submitted interim challan before the Special Court (Offences in Banks) Sindh, Karachi (Special Court) on or about 8-9-2008. Subsequently, the Investigating Officer of the case on 24-2-2009 through an application prayed for return of interim challan on the ground that after completion of the investigation no banker was found involved in commission of any offence which would fall within the ambit of the affairs of business of the bank/respondent No,8. It was mentioned that the documents processed by the respondent No,8 seems to be proper and in accordance with the prescribed banking practice/rules. On its turn, the Special Court in terms of the impugned order dated 25-3-2009, (Impugned Order) allowed the application by observing that perusal of the record shows prima facie that the matter relates to the import and export in between private parties. Allegations were not in respect of any act which would show any fraud being committed by or with the respondent No,8, and that it (respondent No: 8) also did not sustain any loss. It was further observed in the Impugned Order that no banker was challaned. Such being the position, the Special Court was satisfied, in coming to the conclusion that it did not have the jurisdiction to entertain the matter as the same did not fall within the stipulation of scheduled offence as contemplated under the provisions of Offences In Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance IX of 1984). Therefore, the Special Court directed the prosecution to submit challan before the court which has the jurisdiction to entertain the case. Resultantly interim challan and other documents were ordered to be returned.
3. Dissatisfied with the Impugned Order, present Revision application was filed. It was urged by the learned counsel for the applicant that the Special Court erred in appreciating the fact that the respondent No,8 failed in following the laid down banking procedures, rules and regulations and the directives of the State Bank of Pakistan with the result that the applicant sustained huge financial losses which failure on the part of respondent No,8 was with active connivance with other respondents. It was also urged that the Impugned Order suffers from patent illegalities inasmuch as it failed to consider that the application that was moved by the Inspector, FIA did not mention any provision of law to substantiate that nothing incriminating against the respondent No,8 'came forth. It was also asserted that the Special Court passed the Impugned Order in haste and in a slipshod manner, without considering the documents and detailed objections preferred by the applicant to the application filed by the Inspector, FIA for return of interim challan. It was also strenuously argued that the respondent in connivance with each other fabricated, faked and manipulated bill of lading No, EALI/KHI/DXB/0335 , showing shipment date as 23-2-2007 and that further bill 'of lading with same number, same container number showing shipment dated 24-3-2007 for consignment of 162 packages said to have been exported to Dubai in the name of two different exporters, consignees and notified party. In support of his contentions, learned counsel relied upon the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353) and Muhammad Adnan Malik v. The State (2009 PCr.LJ 456).
4. Opposing the Revision Application and defending the Impugned Order, learned counsel for the respondent No,8 argued that the export documents were processed by respondent No,8 as per instructions of respondent No,5. It was mentioned that Habib Bank, AG Zurich, main branch, Beniyas Square, Dara Dubai, U.A.E. Informed respondent No,8 that the consignee namely Ghazi Bin Textile LLC does not maintain any account with it (Habib Bank AG Zurich) and therefore the new buyer in shape of the applicant had been arranged who on their turn negotiated with other respondents than the respondent No,8 and thereafter sent and/or processed the export documents under collection on 120 days DA from the date of Bill of Lading. It was specifically pointed out that Annexure 'R' to the Statement, filed by the Applicant in May, 2009 in the present case would show that it (Bill of Lading) was duly received on 24-3-2007 containing the official stamp of Habib Bank, AG Zurich under which the consignment was released and that Annexure 'R/16' with the same statement though apparently contain the same bill of lading, but did not bear the official stamp of Habib Bank, AG Zurich and was of a date other than 24- 3-2007 and contained manipulation. It was, therefore, contended that patently fraud, if any, that was committed was by other respondents than respondent No,
8. Next it was asserted that the case by no stretch was of section 2(d) of Ordinance IX of 1984. Therefore, the Special Court looking at such aspect of the matter returned the case. It was also mentioned that the respondent No,8 did not complain or lodge any criminal case against its employees/officer of fraud or loss to it.
5. Learned counsel for respondents Nos.2 and 3 argued that the case of the applicant hit by the provisions of Import and Export Control Act, 1950 (Act) and that under such Act this court or the Special Court did not have the jurisdiction to try the case, which exclusively vest with the Commercial courts, constituted thereunder. The learned counsel for these respondents relied upon Muhammad Hashim v. P.O. Special Banking Court (Offences in Banks) Sindh Karachi (2006 PCr.LJ 1886).
6. Arguments heard. Record and precedents cited perused.
7. At the very outset we may observe that out of eight respondents, only respondent No,8 is a, banking company; Habib Bank A.G Zurich was not a party to the proceedings. Rest of the respondents are private parties or parties other than a banking company. Therefore the provisions of Ordinance IX 1984, at best were applicable to respondent No,8 and/or its employees and officers, that too, if the case, was brought against them for causing loss to respondent No,8 in connection with the banking business. Perusal of record would show that allegations against respondent No,8 were general in nature and no specific name was available the F.I.R. Or in the challan against whom scheduled offence as contemplated under section 2(d) of Ordinance IX of 1984 could be raised. We also looked into the interim challan and various documents and came to the conclusion, that seemingly there was some dispute in respect of export of goods from Pakistan to Dubai in which it appeared that respondent No,8 acted strictly on instructions of respondent No,5 in processing the documents. It also appeared that the goods had been exported under Bill of Lading dated 24-3-2007, available as Annexure 'R' to the Statement filed by the applicant which contained the official stamp of Habib Bank, A.G Zurich favouring Ghazi Bin Textile Co. LLC Bur Dubai U.A.E. This company found not the account holder of Habib Bank, AG Zurich, it was notified to the applicant as such. In this view of the matter the respondent No,5 in terms of its letter dated 9-4-2007, as mentioned above, informed that they have found another buyer of the consignment at the same destination (Dubai) who have an account at Habib Bank AG Zurich. A request was made for urgent telex to respondent No,8 in such respect to release the documents to the new buyer. It is apparent that it was under the instructions of respondent No,5 that the consignment had been released. The respondent No,8 only acted strictly as per the banking practice in vogue. It therefore became apparent that there were dealings between the applicant, the respondents Nos.2 and 3 and respondent No,5 regarding export of consignment and in such regard, respondent No,8 facilitated all of them by providing its services as per laid down rules, practice and procedure.
8. Therefore, at this stage and/or at the time of passing of the Impugned Order nothing was on record to show that some offence had been committed by the respondent No,8 or its employees or officers whereby loss had been accrued to it. It may be noted that the present case prima facie, upon perusal of the record had shown that there was a dispute between the private parties with regard to its business transaction vis-a-vis import and export and because of such transaction, seemingly the applicant sustained some losses for which, Suit bearing No,710 of 2010 has been preferred against all respondents herein, including HBL AG Zurich for recovery with future markup and damages pending adjudication before this court. Filing of the Suit by the applicant, itself raised that there was/is a dispute with regard to business transaction on account whereof some losses had been sustained by the applicant which was at the hands of the respondents. It is also patent from the case that no loss had been caused to the respondent No, 8 and/or respondent No, 8 preferred no case against rest of the respondents or against its own employees/officers with the allegations that it sustained losses in respect of or in connection with its business. Looking at this aspect of the matter, the Special Court rightly returned the case papers by concluding that the offence as contained in the F.I.R. Was outside the pale of section 2(d) of Ordinance IX of 1984.
9. As we have already observed above that out of 8 respondents only respondent No,8 is a banking company and rest were not. On this score also and the fact that allegations have been raised against other respondents as well and nothing incriminating against respondent No,8 came forth, it would be just and proper if the case of the applicant is proceeded and decided before a court other than the Special Court. In view of what has been observed above, the two precedents cited by the learned counsel for the applicant were not applicable and/or clearly distinguishable inasmuch as in both such cases, it was established that the bank and/or its officers were involved in commission of the offence; whereas in the present case according to the applicant's own showing not even a single officer of the bank has been named in the F.I.R. Or in the challan to show that such officer was involved in causing loss to the respondent No,8 or that the respondent No,8 also did not raise such against its employee/officer.
10. These are the reasons for dismissal of this Revision Application by us in the morning.