' YAHYA AFRIDI, J.-Frontier Steel Mills (Pvt.) Ltd. And Abdur Rasheed Yousafzai ("the petitioners"), seek the original jurisdiction of this Court. provided under section 493 of the Companies Ordinance, 1984 ("Ordinance") in terms that: "Considering the above submissions, it is therefore, most respectfully prayed that on acceptance of this petition:
(1) Respondents may please be directed to restore the possession of the Industrial Unit to the petitioners,
(ii) Along with all immoveable and moveable assets,
(iii) Including raw material as was on stock on 7-4-2005 in the Mills premises and
(iv) Any gain or benefit from it or compensation for causing loss to the Mills."
' Any other relief appropriate in the circumstances but not specifically asked for may also be granted."
' BACKGROUND
2. The present petition has a chequered history which has been very aptly and precisely narrated by Mr. Justice Malik Manzoor Hussain, while delivering the opinion of the Divisional Bench of this Court in its remanding order in the Intra Court Appeal No,4 of 2010 decided on 4-2-2014 in terms that: "Briefly, the facts of the case are that On 7-4-2005, an FIR bearing No,101, was lodged by Imran Khan, Manager of Frontier Steel (Pvt.) Ltd. Gadoon at P.S. IDS, Swabi against respondents Javed Jadoon and others, under sections 448/ 148/149/109, P.P. C., for taking forcible possession of the Factory and also the business record of the Factory. The local police after investigation, submitted report under section 173, Cr. P. C., before learned Magistrate for cancellation of the case and consequently vide order dated 20-4-2006, the case was cancelled and was consigned to the record room. On 29-7-2009, i,e, after passing. Of almost more than three years of discharge order the petitioner preferred criminal revision under section 439, Cr.P.C. Before learned Additional Sessions Judge, Swabi, and the same was dismissed vide order dated 30-10-2009, being not maintainable under the law. Feeling aggrieved the petitioners have challenged the same through above referred Write petition No, 880 of 2010.
' On 14-4-2005, one Abdul Rashid Yousafzai (Chief Executive) of the same Mill namely Frontier Steel (Pvt.) Ltd (hereinafter called as the appellant/petitioner) filed a suit bearing No,180/1 against Javed Jadoon (hereinafter called as the respondents) of FIR No,101, in the Civil Court at Swabi under section 9 of Specific Relief Act, for restoration of possession and permanent injunction. That suit was contested by respondents/defendants and vide judgment dated 29-5-2009, the same was dismissed. Feeling dissatisfied, appellant herein plaintiff filed Civil Revision No,749 of 2009, which is also fixed for today.
' The appellant herein also filed a petition under section 493 of the Companies Ordinance, 1984 before Hon'ble Company Judge of this Court on 30-9-2009, and the same was dismissed through order dated 29-3-2010, being not maintainable, thus the same has been impugned in Intro Court Appeal No,4 of 2010 ' The appellant had rightly approached the learned Company Judge for redressal of his grievance under section 493 of the Ordinance ibid and to our view in presence of this proper section of law, there was no need to register a criminal case or to file a case under section 9 of Specific Relief Act, as the remedies are comprehensively available under the provision of referred section 493 or Ordinance ibid. The Hon'ble Company Judge was not properly assisted to appreciate the relevant provisions mentioned above, which culminated into dismissal of complaint filed by the appellant.
The honourable Company Judge was empowered to restore the possession and regulate the affairs of the parties by invoking provision of section 493 of Ordinance ibid, if the appellant was allowed to prove his case.
' In view of what has been discussed above, this appeal (I. C.A. No,4/10) is allowed and by setting aside the impugned order dated 29-3-2010, the matter is remanded back to the Hon'ble Company Judge for adjudication of the same under provisions of section 493 of Companies Ordinance, 1984."
FACTS.
3. It is an admitted position that on 7-4-2005 petitioner No,2 was ousted from the premises of the industrial unit of petitioner Company situated at Plot No,153 Gadoon Amazai Industrial Estate District, Swabi ("Company premises"). Petitioner No,2, who was then the Chief Executive of the petitioner company had duly recorded the incident in the local Police Station vide FIR No,101 dated 7-4-2005, while respondent has not expressly denied this crucial fact. In fact, his denial is evasive and that too without any supporting record.
4. Keeping in view these essential admitted facts, this Court would have to examine; whether a case is made out in favour of petitioner No,2 and against respondent, in view of the provisions provided under section 493 of the Ordinance. The said provision reads as under: "Penally for wrongful withholding of property (1) Any director, chief executive or other officer or employee or agent of a company who wrongfully obtains possession of any property of the company, or having any such property in his possession wrongfully withholds it or willfully applies it to purposes other than those expressed or directed in the Articles and authorized by this Ordinance shall, on the complaint of the company or any creditor or contributory thereof or a memorandum placed on record by the registrar or an officer subordinate to him, be punishable with fine not exceeding ten thousand rupees and may be ordered by the Court, or officer, (Commission) or Registrar or the Federal Government trying the offence, to deliver up or refund within a time to be fixed by the said Court, officer, (Commission) or registrar or the Federal Government any such property improperly obtained or wrongfully withheld or willfully misapplied and any gain or benefit derived therefrom.
(2) Whoever fails to comply with an order under subsection (1), shall be punishable with imprisonment for a term which may extend to two years and shall also be liable to a fine".
5. The aforementioned provision prescribes certain conditions precedent for this Court to invoke its jurisdiction to try an 'offender' having committed the 'offence' mentioned therein. The same are as follows:
(i) The offender has to be any Director, Chief Executive Officer, Employee or Agent of a Company,
(ii) The offender wrongfully obtains, withholds or willfully applies the property of the Company in derogation of the Articles or the provisions of this Ordinance.
(iii) The Complainant has to be the Company, Director or contributory.
(iv) The forum for the complainant to file a complaint in writing is the Court, Officer, Securities and Exchange Commission of Pakistan, Registrar, or the Federal Government.
(v) The forum trying the offence can punish the offender and sentence him with a fine not exceeding ten thousand rupees and may order the offender to deliver up any such property improperly obtained or wrongfully withheld or willfully misapplied and any gain or benefit derived therefrom.
6. Keeping in view the aforementioned essential ingredients required for this Court to assume jurisdiction under section 493 of the Ordinance, it is noted that according to the petitioners, as narrated in para-5 of the present petition and duly supported by the Form-A of the Company, Javed Jadoon (respondent) ceased to be a Director of the Company since 25-10-2003. Thus, on the, crucial day, the offender, according to the petitioners, who had wrongfully taken over the possession of the assets of the petitioner Company, was not the Director, Chief Executive, Employee or Agent of the Company. In such circumstances, though the petitioner No,2 being contributory of the Company, did fall in the category of a 'complainant' but the 'offender' did not come within the purview envisaged under section 493 of the Ordinance. Hence, the present petition seeking to try Javed Jadoon, under section 493 of the Ordinance, is misconceived, being not maintainable under the law.
7. It is also noted with great concern, that petitioner No,2, for almost a decade, is trying to seek redressal of his grievance in different legal forums, but to no avail.
8. What we have before this Court, is that there is, inter alia, an allegation of wrongful taking over possession of assets of the petitioner Company by the respondent, which is duly supported by an affidavit of the then Chief Executive of the petitioner company. The said allegation is supported by a promptly registered FIR by the petitioner No,2, while the same is evasively denied by the respondent by filing a counter affidavit. In such circumstances, it would not be appropriate for this Court to divest itself from the grave injustice rendered to the petitioners, just because the petition is not maintainable under section 493 of the Ordinance. Moreso, when the record is clear to the extent that petitioner No,2 was in lawful possession of the Company premises and assets of the petitioner Company and the same was taken over by the respondent on 7-4-2005. Accordingly, the delivery of the possession of the Company premises to petitioner No,2 is warranted.
9. As far as, the other claims of the petitioners, it is noted that the same are based on serious allegations of fraud against Mr. Javed Jadoon (respondent), who has vehemently denied the same. Surely, the resolution thereof would require recording of evidence. Moreso, when the essential documents to support the respective claims of the parties are not available on the record.
10. This Court would thus, treat the instant petition, as a petition under section 265 of the Ordinance, seeking investigation. It is by now settled principle of law, that mentioning a wrong provision of law in a petition, would not deter the Court from exercising its proper authority and appropriate jurisdiction vested under the law, keeping in view the circumstances of the case. In similar circumstances, the apex Court in Mst. Saifa Bibi's case (1982 SCM R 494) and in Mohan Electric Power Company Ltd's case (PLD 2006 SC 382) has upheld decisions of legal forums having jurisdiction to entertain the lis, even when the provision of law seeking indulgence of the forum was wrongly mentioned therein.
' Let us view the mandate of this Court to seek investigation under section 265 of the Ordinance, which reads as under: Section-265. Investigation of company's affairs in other cases. Without prejudice to its power under section 263, the (Commission)
(a) shall appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the (Commission) may direct, if
(i) the company, by a resolution in general meeting, or
(ii) the Court, by order, declares that the affairs of the company ought to be investigated by an inspector appointed by the (Commission); and
(b) may appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the (Commission) may direct if in the opinion of the (Commission) there are circumstances suggesting:
(i) that the business of the company is being or has been conducted with intent to defraud its creditors, members or any other person or for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members or that the company was formed for any fraudulent or unlawful purpose; or
(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance, breach of trust or other misconduct towards the company or towards any of its members or have been carrying on unauthorized business; or
(iii) that the affairs of the company have been so conducted or managed as to deprive the members thereof of a reasonable return; or
(iv) that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect; or
(v) that any shares of the company have been allotted for inadequate consideration; or
(vi) that the affairs of the company are not being managed in accordance with sound business principles or prudent commercial practices; or
(vii) that the financial position of the company is such as to endanger its solvency; ' Provided that, before making an order under clause (b), the (Commission) shall give the company an opportunity to show cause against the action proposed to be taken.
' The judicial consensus on when to allow an application under section 265 of the Ordinance for seeking investigation in a company is by now settled by the apex Court in Brothers Steel Limited's case (PLD 1995 SC 320) in terms that: "we are of the considered view that in proceedings under section 265 of the Ordinance, full-fledged inquiry in the form of a trial, is not required to be held nor any formal evidence is to be recorded.
Needless to observe that before passing the order under section 265 of the Ordinance, the Court has to only satisfy itself prima fade, of course, on the basis of the material placed before it, that a case for investigation through an Inspector is called for and it is for the Inspector to ascertain and determine the truth or otherwise of the allegations during the investigation to be conducted by him whereafter he will submit the report to the concerned authority. The matter in fact rests in the discretion of the Court, to be decided after following the summary procedure as laid down in section 9 of the Ordinance".
' Recently, Justice Irfan Sadaat Khan, while deciding Messrs Light Metal and Rubber Industries's case (2011 CLD 1485) has rendered an exhaustive and thorough review of the precedents on the issue in hand. It was finally concluded that: "it is also well settled proposition of law that prima facie a case of investigation is made out, the discretion vest with the Court to either give directions for appointment of an Inspector or not and this exercise of discretion is not open to any exception as held by the Hon'ble Supreme Court in the case of Brothers Steel."
' Keeping in view the 'ratio decidendi' of the judgments cited above, this Court finds that a 'prima facie' case is made out by the petitioners for seeking investigation as provided under section 265 of the Ordinance.
' Accordingly, for the reasons stated hereinabove, this Court' holds as under: ' The instant petition in its present form is not maintainable under section 493 of the Ordinance.
(II) This Court treats the instant petition as a petition under section 265 of the Ordinance, as prima fade, a case for investigation is made out.
(III) Securities and Exchange Commission of Pakistan is directed to appoint an Inspector within seven days, if not earlier, from the date of receipt of this Order, to investigate, in general the affairs of Messrs Frontier Steel (Pvt.) Ltd. Situated at Plot No,153 Gadoon Amazai Industrial Estate District, Swabi and in particular, to render its findings as to whether Javed Jadoon had any authority to take over possession of the petitioner company on 7-4-2005 and if not, the gains or benefits he has derived from the illegal withholding of the assets of the petitioner company.
(IV) In case, the duly appointed Inspector requires assistance of auditors and/or Surveyors, he may engage them from the SECP approved list of Auditors and Surveyors. Subject to the liability to be determined under section 277 of the Ordinance, the initial costs for the same be paid by the petitioners.
(V) Abdul Rasheed Yousafzai (petitioner No,2) is to be handed over the peaceful possession of the company premises along with all moveable and immovable assets of the Messrs Frontier Steel (Pvt.) Ltd. Situated at Plot No,153 Gadoon Amazai Industrial Estate District, Swabi, at 10-00 a.m. On 8- 12-2014 in presence of the duly appointed Inspector, who is to prepare the inventory list of all immovable and moveable assets of the petitioner company received by Abdul Rasheed Yousafzai (petitioner No,2).
' The office is directed to immediately send copies of this judgment to the Chairman, Securities and Exchange Commission of Pakistan, Deputy Commissioner, Swabi and Deputy Inspector General of Police, Mardan, to ensure that the orders of this Court are implemented in its true spirit, without any disturbance by any person.