Quashment of FIR No. 67 of 2010 registered under Section 406 of The Pakistan Penal Code, 1860 at Police Station, Nishat Abad, Faisalabad has been sought for by the petitioners.
2. Allegation in brief contained in the crime report lodged at the instance of Abdul Razzaq, attorney of the Bank Alflah Limited are that M/s. Adam Fabrics (private) Limited obtained loan of Rupees 15 crores and mortgaged its assets and properties worth 10 crores besides hypothecation of stock of cloth valuing at 59,984,345/-. On inspection of stock in September and October 2009 by complainant and relationship officer, deficiency of stock was noted which was intimated to the petitioners being directors of firm but grievance was not properly redressed. Again on inspection in January 2010, Mill was found closed and person at guard in the premises did not permit the complainant and other representative of Bank to enter into the premises. Allegating misappropriation of hypothecated stock worth millions, case under Section 406 of The Pakistan Penal Code, 1860 was got registered.
3. Heard.
Though at the instance of petitioners arguments were advanced on legal as well as factual premises but attention was focused on legal premises while seeking quashment of Report.
Making reference to the provisions of Section 7(4) of The Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001), it was submitted that only remedy available to the Bank was to file complaint conferring exclusive jurisdiction upon Banking Court to decide the matter putting embargo to avail any remedy under ordinary law, either civil or of criminal nature. Help was sought from the dictum laid down in 'Murshid Ali and 4 others vs. SHO, Police Station Saddar Khanewal and another (2011 P.Cr.LJ 1763), Shaikh Muhammad Taqi us. The State (1991 P.Cr.LJ 963),"
Nizar Ali Fazwani and another us. Messrs Pak Golf Leaswing Company Limited and another (2009 P.Cr.LJ 325)," Malik Tariq Mehmood vs. Messrs Askari Leasing Ltd. (2009 CLD 1422), Muhammad Iqbal versus Station House Officer and 2 others (2009 CLD 1149), Ghulam Sarwar Zardari versus Piyar Ali alias Piyaro and another (2010 SCM R 624) and Zahid Jameel vs. SHO etc. (W.P. No. 7635 of 2008) unreported judgment dated 31.07.2008.
Repelling the arguments, the learned counsel for the Respondents No. 3 and 4 submitted that keeping in view the allegation offence under Section 406 of The Pakistan Penal Code, 1860 has been made out, sufficient to reject the petition, on the legal premises it was argued that provisions of Section 7(4) of The Ordinance does not oust any party to claim the relief, under ordinary law.
Reliance was placed upon Mahmood Akhtar Khan vs. The State 2 others (2010 CLD 639), Asif Mehmood Bhatti vs. Federal Investigation Agency and 2 others (2002 YLR 3847), Industrial Development Bank Of Pakistan and others vs. Mian Asim Fareed and others (2006 SCM R 483), Muhammad Saleem Bhatti vs. Syed Safdar Ali Rizvi and 2 others (2006 SCM R 1957), and Haji Sardar Khalid Saleem vs. Muhammad Ashraf and others (2006 SCM R 1192).
4. First of all it would be desirable to deal with legal objection raised at the instance of the petitioners in view of the text of Section 7(4) of The Ordinance, according to which no Court other than a banking Court shall have nor exercise of any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court stands extended. Section 20 of The Ordinance gives the detail of offences falling within the jurisdiction of Banking Court. Section 20(1)(a) of the Ordinance deals with breach of terms of a latter of hypothecation, trust receipt or any other instrument or document, prima facie, offence falls within the ambit of Section 7(4) of The Ordinance.
5. However, the question for consideration is whether Respondents No. 3 & 4 were competent to set in motion the ordinary law by getting a case registered under Section 406 of The Pakistan Penal Code, 1860 or exclusive remedy available was to file complaint under The Ordinance.
Case law reported in 'Murshid Ali and 4 others versus S.H.O. Police Station, Saddar, Khanewal and another (2011 P.Cr.LJ 1763), Malik Tariq Mehmood versus Messrs Askari Leasing Ltd., (2009 CLD 1422), Muhammad Iqbal versus Station House Officer and 2 others (2009 CLD 1149) (All decided by the learned Single Benches of this Court), Nizar Ali Fazwani and another versus Messrs Pak Golf Leasing Company Limited and another (2009 P.Cr.LJ 325), Sabir Ahmed versus Nazeer Ahmed and another (2010 P.Cr.LJ 412) (cases decided by learned Sindh High Court) prima facie support the contention of the learned counsel for the petitioners regarding exclusive jurisdiction of Banking Court ousting the domain of Court of ordinary jurisdiction but with great respect, it cannot advance the plea of the petitioners in view of Ratio expounded by Honourable Apex Court in "Industrial Development Bank of Pakistan and others versus Mian Asim Fareed and others (2006 SCM R 483). Perusal of the facts of Report suggests that case was registered against the debtors at the instance of Industrial Development Bank Ltd. under Sections 379, 406, 420 of The Pakistan Penal Code, 1860 which registration was called in question seeking quashment of crime report in view of the bar contained in Section 7(4) of The Ordinance 2001 which was allowed but the order for quashment of FIR was set aside by the Hon'ble Apex Court while holding at page 4&5 as follows:-- "In the absence of any finding that the above mentioned offences mentioned in the FIR were false and malicious and in the absence of a finding that if a particular forum or mode had been prescribed with respect to the taking of cognizance of an offence then the same also implied prohibition regarding the registration of an FIR; no such order could be passed nor the same could be proved. Needless to add that the registration of an FIR and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the intention of the law maker was to put any clog on the registration of an FIR, then the legislature would have said so specifically and that if the law put a condition only the taking of cognizance then it can never be read to imply prohibition on registration of FIRs."
Decision of the Honourable Supreme Court is binding on all Courts including High Court as envisaged by Article 189 of The Constitution.
Respectfully following the dictum laid, the argument canvassed at the instance of the petitioners is of little help.
5. Arguments were also canvassed at the instance of the petitioners on factual premises seeking quashment of FIR. The learned counsel for the petitioners as well as for Respondents No. 3 & 4 relied upon case law but suffice it to, say that each and every criminal case got its own facts and has to be decided keeping in view the attending circumstances.
Allegation against the petitioners are that while availing loan facility they not only mortgaged their assets and properties but also hypothecated different type of stock allegedly mis-appropriated by the petitioners which allegation has been controverted.
Since factual controversy is required to be settled in order to grant relief sought for by the petitioners, therefore, this Court is neither competent nor authorized to settle. the disputed question of fact and that too on bald allegations. Reference is made to Col. Shah Sadiq versus Muhammad Ashiq and others (2006 SCM R 276).
6. FIR can be quashed if the very registration of case is proved to be malafide on the record but mere allegation of malice does not confer jurisdiction to grant such relief. Question of jurisdictional defect also could not be established. Argument that it is a case of no evidence could not be substantiated.
7. Pursuant to above discussion, writ petition being devoid of force is hereby dismissed.