' MISS AALIA NEELUM, J.---Through this revision petition filed under sections 435/439, Cr.P.C., the petitioner has challenged the legality of order dated 10-8-2004 passed by the learned Judge, Special Court (Offences in Banks) Punjab, Lahore whereby application of the petitioner bearing Criminal Miscellaneous No,210 of 2004 qua raising preliminary issue as to jurisdiction of the learned Special Court (Offences in Banks) Punjab, Lahore to take cognizance of the offences allegdd to have been committed in the challan submitted by FIA which falls within the ambit of section 83(1)
(a) of the Banking Companies Ordinance, 1962 for which reason no court other than High Court, Lahore has the jurisdiction to try any such offence. However, the petitioner also made the following prayer in the instant Revision Petition:--
(i) Cognizance taken by the respondent trial Court and the challan submitted to it be declared to be prohibited in terms of section 83(1)(a) read with section 84 of the Banking Companies Ordinance, 1962.
(ii) Trial proceedings before the respondent Special Court be held to be without jurisdiction.
(iii) Respondent Special Court be restrained from taking cognizance of the challan and proceedings any further.
(iv) Respondent Special Court be directed to terminate the trial forthwith with the direction to the respondent State and the respondent Bank to proceed in the matter in accordance with the law, if so advised.
2. Briefly, F.I.R. Bearing No,27 dated 25-7-2002 stands registered at Police Station FIA CBC, Multan, offence under sections 409, 420, 468, 471, 109, P.P.C. Read with section 5 of Prevention of Corruption Act, 1947 at the instance of Saeed Qamar Azeem Chief Manager and Maroon Ahmad AVP, Soneri Bank Ltd., Multan against the petitioner and one Mian Nadeem Ullah regarding misappropriation of Rs,3,154,940.44 with the allegation that the petitioner being OG.II/Incharge International Banking/Advances Department and Mian Nadeem Ullah OG.III/2nd in command of Hamad Raza, petitioner for handling International Banking/Credit Department of the branch in connivance with each other misappropriation of the above said amount and committed Irregularities for embezzlement in respect o various accounts. During the inquiry the petitioner along with his co- accused confessed their guilt and offered to make payment to the bank for having committed fraudulent misappropriation in the bank accounts and as such the petitioner and his co-accused committed fraud and forgery by causing loss in respect of various accounts of different account holders and embezzled the huge amount.
3. In support of this petition, the learned counsel for the petitioner has contended that the impugned order is totally illegal and unlawful, inasmuch as on the narration of fact in the F.I.R., no offence is spelled out from it, as the same falls within the ambit of scheduled offences in the contemplation of offences in the Special Court (Offences in Banks) Ordinance, 1984; that in a situation where 1984 Ordinance does not apply on the ground that the narration therein does not constitute schedule offence, the over-riding effect available to section 84 of the 1962 Ordinance come into full play; that the impugned order is vitiated by misconstruction of the documents written by the petitioner in his own hand which is an offer to deposit the entire alleged amount under protest and on the basis of assertion that if the matter were to go to court he would be declared innocent and would not be liable to pay even a single penny and as such the cognizance taken by the learned trial court and the challan submitted to it be declared to be prohibited in terms of section 83(1)(a) read with section 84 of the Banking Companies Ordinance, 1962.
4. On the other hand learned Law Officer assisted by the learned counsel for Soneri Bank have vehemently opposed this petition by stating that during the course of investigation, evidence secured on the record reveals that the petitioner in connivance with his co-accused Mian Nadeem Ullah being the custodian of the bank amount misappropriated the amount through fraud and forgery; that as per pre-amble, Ordinance IX of 1984 was promulgated to provide speedy trial of certain offences committed in respect of banks; that Soneri Bank has been declared as a scheduled bank as defined in the State Bank of Pakistan Act, 1956 and as such the instant petition be dismissed.
5. We have carefully considered the submissions of the learned counsel for the parties and have minutely perused the entire record.
6. We have given our serious thought to the point raised, as prescribed in subsection (1) of section 4 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 "scheduled offences" are exclusively triable by Special Court (Offences in Banks), while subsection (6) of the section 4 ibid provided as under:- "(4) Scheduled offence to be tried by Special Court.
(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court.
(2)
(5)
(6) If, in the course of a trial before a Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence."
"Scheduled offence" has been defined in section 2(d) of the Ordinance 1984 which is reproduced as under:-- "Definitions. In this Ordinance unless there is anything repugnant in the subject or context,--- (a)
(b)
(c) ...........
(d) "scheduled offence" means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank; and
7. Admittedly, the petitioner was an officer of Grade-II and Incharge International Banking/Advances Department of complainant-Bank and the petitioner along with his co-accused were charged. With the offences of misappropriation, embezzlement and other irregularities committed by the petitioner along with his co-accused. In this regard inquiry was conducted by the Department itself and petitioner returned the amount of Rs,5,00,000 and as such by doing so he admitted his guilt. While summarizing the nature and factum of misappropriation/embezzlement and acts of gross misconduct committed by the petitioner along with his co-accused in respect of other various accounts and petitioner was also maintaining the accounts of his family, detail of which is given in the crime report. The petitioner and his co- accused had committed "scheduled A offences" and as duly defined in First Schedule of Ordinance 1984 which provided that such offences committed in respect of or in connection with the business of the bank will be triable by a Special Court by establishing under Ordinance 1984. As per the contention of the learned counsel for the petitioner that at most, act of the petitioner falls under Section 83 of Banking Companies Ordinance (LVII of 1962) bare reading of preamble of Banking Company Ordinance, 1962 it provides that the object of Banking Companies Ordinance, 1962 is to provide general details and guidelines that how Banking Companies would have to operate its business. Reliance has been placed on the case reported as M.D. Tahir, Advocate v.- Director State Bank o Pakistan, Lahore and 3 others (2004 CLD 1680). To regulate banking working difficulties, penalties were provided in section 83(1-A) of Banking Companies Ordinance, 19621A which is reproduced as under:-- "83(1-A) If any person, being the chdirman, director, chief executive, by whatever name called, or official liquidator or an officer of a banking company, mismanages the affairs of the banking company or misuses his position for gaining direct or indirect benefit for himself or any of his family members, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine (not exceeding ten million rupees), and shall be ordered by the Court trying the offence, to deliver up or refund within a time to be fixed by the Court any property acquired or gained by him in his own name or in the name of his family members by so mismanaging the affairs of the banking company or misusing his position or in default, to suffer imprisonment for a term which may extend to three years."
8. The penalties provided in the said sections relate to misuse of his position and committing of any irregularity in connection with banking work whereas the allegation against the petitioner relates to misappropriation, embezzlement which calls under definition of "scheduled offences". Now offences in respect of the bank and offences in connection with the business of the bank in our opinion mean such offences which hit the bank or its business financially or otherwise. It is held in the case- law reported as Ghulam Mustafa v. Presiding Officer, Special Court (Offences against Banks), Rawalpindi (2003 M LD 841) that according to sections 2(d), 4(1) and 6 of the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), there are three prerequisites to invoke the jurisdiction of Special Court of Offences in Banks which are as under:--
(a) The offence should be a scheduled offence;
(b) The offence should be in respect of a scheduled Bank; and
(c) The offence should relate to the business of a scheduled bank;
9. Keeping in view the aforementioned criteria, the case in hand fulfills all the three conditions and as these conditions are specified the Special Court possess the necessary jurisdiction to try an accused person of such offences. The offences committed by the petitioner clearly bring the case of the petitioner within the ambit of "scheduled offences" as defined thereby. We in the circumstances are fully in agreement with the learned counsel for the complainant-Bank that the alleged offences levelled against the petitioner and others duly fall within the scheduled offences and thus the same are triable by a court constituted under the Ordinance ibid.
10. For what has been discussed above, the instant Revision Petition is without merit and the same is hereby dismissed.
11. Before parting with this judgment, as the matter pertains to the year 2002, therefore, Banking Crime Court is directed to conclude the matter within a period of four months on day to day basis with intimation to the Court positively.