MUHAMMAD YOUNIS THAHEEM, J.---Through this judgment this Court proposes to decide application filed by applicant for the following relief:- Application under the relevant Provisions of Companies Ordinance, 1984 read with the Rule-3 of the Companies (Court) Rules 1997 for:- i) Clarification of the position of the applicant vis-a-vis the so-called liabilities, if any, towards the respondent No. 1 . ii) Directing the respondents to the remove the name of the applicant from the Exit Control List (ECL); purportedly placed by respondents in pursuance of the order, dated 18.05.2009, passed by this Honourable Company Bench of Peshawar High Court in the CC# 05/2005. iii) Payment of costs of litigation to the applicant; iv) Grant of any other relief not specifically asked for but is deemed appropriate by this Honourable Court under the circumstances.
2. Brief facts of the case are that respondent No.2 filed CC No.5 of 2005 under the Companies Ordinance 1984 before Company Bench of this Court for winding up of Islamic Investment Bank Limited (hereinafter called as IIBL)/respondent No.1, mainly on the ground that company commercially, financially and technically has become insolvent, so it would be appropriate to wind it up in order to salvage, for realizing assets and then to distribute it amongst the depositors, so this Court vide order dated 18.05.2009 recommended the placement of the names of Chief Executive, suspected Directors of the Board and other similar Officials of the Company including those individuals who have entered into shadowy transactions with the Company on Exit Control List (hereinafter called as ECL), till the time such persons execute surety bonds to the satisfaction of the Court with undertaking that such persons would appear in the Court when required.
3. The applicant joined Switch Securities Pvt. Ltd. on 01.09.2003 and performed his duties till 09.10.2006 as Chief Executive Officer (hereinafter called CEO) of Switch Securities Pvt. Ltd.
(hereinafter called as SSL). During period of his service in SSL, a person named as Munawar Ali Fecto was maintaining an account with SSL and in this regard he made investment of Rs.25.00 Million. The said amount was routed to SSL through IIBL/respondent No.1 and SSL was assured regarding the set off the said amount in case of default by said Munawar Ali Fecto and in this regard SSL received cheque No.730588 on 27.03.2004 drawn at MCB Stock Exchange Branch, Karachi in the name of Munawar Ali Fecto. The said Munawar Ali Fecto afterward failed to honour his commitment and in this respect SSL duly informed IIBL/respondent No.1 regarding it's action.
4. Apart from the above discussed position, his Lordship Mr. Justice Iftikhar Muhammad Chaudhry, Senior Puisne Judge of Hon'ble Supreme Court of Pakistan in pursuance of order dated 23.05.2005 passed in criminal original petition No.15 of 2002 conducted inquiry and prima facie case of corruption and corrupt practices was established in the result of that inquiry, so Registrar of Hon'ble Supreme Court was directed to lodged a complaint with NAB Authorities and provide copy of the inquiry report to NAB and NAB was directed to register a case against the persons mentioned in the said order, vide order dated 02.06.2005 by the Hon'ble Chief Justice of Pakistan, however in the said complaint name of applicant was not mentioned. Respondent No.3 in the year 2006 during routine scrutiny of IIBL noted some irregularities in the accounts of IIBL and noticed certain fraud committed by respondent No. 1/IIBL with the connivance of Munawar All Fecto and the higher management of IIBL. So, above discussed criminal complaint with NAB was lodged against Managing Director of IIBL and so many others. The NAB started enquiry proceedings however during preliminary inquiry, Munawar Ali Fecto deposited Rs.25468493/- through 02 Demand drafts, one worth Rs.21,500,000/- and other of Rs.3,968,493/- in the account of Hon'ble Supreme Court of Pakistan Islamabad in May 2005, mentioned in the order dated 02.06.2005 passed by the Hon'ble Chief Justice of Pakistan.
5. According to winding up order dated 18.05.2009, this Court appointed Barrister Syed Mudassir Ameer as Official Liquidator and passed following winding up order of IIBL with direction to put the name of Chief Executive and suspected Directors of the Board etc. including those individuals who have entered into shadowy transaction with Company in past on ECL. The same order is reproduced below:- "All the concerned authorities including the Registrar are directed to notify the Company having been wound up and the name of the Chief Executive and those of the suspected Directors of the Board and other similar officials of the company including those individuals who have entered into shadowy transactions with the Company in the past be put on the exit control list forthwith unless and until they execute heavy amount of surety bonds to the satisfaction of the Court with the undertaking that whenever they are required, they shall attend the Court or if called upon to appear before the official liquidator while conducting inquiries of auditing accounts of the Company."
6. Here it is pertinent to mention that the respondent No.2 also filed criminal original complaint No.21 of 2006 titled as Securities and Exchange Commission of Pakistan (hereinafter called as SECP) through Shahid Nasim, Director v. Nadeem Anwar and others including the present applicant. The applicant is placed as accused at Serial No.13 in the aforesaid criminal complaint.
7. After above said criminal complaint the Additional Registrar of the SECP, Peshawar/respondent No.2 sent the name of applicant and 07 others accused nominated in the above said complaint to the Ministry of Interior for putting their names on ECL. Subsequently the Interior Ministry/respondent No.4 placed the name of applicant on ECL under section 2 of Exit from Pakistan (Control)
Ordinance, 1981 vide memorandum No.12/175/2009-ECL Islamabad dated 12.10.2009 and copy of same order dated 12.10.2009 was duly sent to the Director General, Federal Investigation Agency, Islamabad, Director General, Immigration and Passports, Islamabad etc.
8. The applicant feeling aggrieved from the order dated 12.10.2009 moved an application through Mr. Siraj-ul-Haq, Advocate to the Chairman SECP/respondent No.3 which was turned down vide order No.SDER/ECL/104/2011 dated 17.08.2011.
9. Petitioner also filed representation against the order dated 12.10.2009 to the Secretary Ministry of Interior Government of Pakistan on 24.04.2012, but it is contended that it has not been decided up till now.
10.Petitioner then filed constitutional petition No.D/424 of 2012 before Hon'ble Sindh High Court at principal seat Karachi titled as Imran Amjid Khan v. Federation of Pakistan etc for the relief that his name be removed from the ECL. The Hon'ble Sindh High Court observed vide order dated 12.08.2014 that as order for putting the petitioner's name on ECL has been passed in consequence of order dated 18.05.2009, passed by the Peshawar High Court, Peshawar in CC No.5 of 2005, so query was put upon the learned counsel for applicant as to why he has not assailed the said order before the proper forum. Upon this the learned counsel for applicant submitted before the Hon'ble Sindh High Court that as he was not party in the said winding up proceedings, therefore same could not be impugned before proper forum. So, in this respect the learned counsel for applicant was put on notice to satisfy the Hon'ble Sindh High Court on the point of maintainability of said petition on the principle that when order has been passed by the High Court of one province then could it be assailed before The High Court of other province, afterward petitioner without withdrawing his aforesaid constitutional petition filed CM No.30-P/2014 in CC No.5 of 2005 before this Court, but said CM was dismissed being not maintainable on the ground that similar nature constitutional petition No.D/424/ 2012 is pending before Hon'ble Sindh High Court at Karachi. Upon this as contended by applicant, he withdrew the said constitutional petition No.D/424 of 2012 on 13.05.2015 by filing CM No.11414/2015 before the Hon'ble Sindh High Court to withdraw the. same to file fresh application before this Court in the light of observations passed in order of Hon'ble Sindh High Court dated 12.08.2014, so, same pending constitutional petition No.D-424 of 2012 was withdrawn and said C.M.
No.11414/2015 was disposed of vide order dated 13.05.2015 by the Hon'ble Sindh High Court at Karachi and after that petitioner filed instant petition.
11.Respondents Nos.2 and 3 were directed to file their replies, therefore Official Liquidator submitted his reply on behalf of respondent No. 1. Official liquidator asserted in his reply that sufficient reasons have been given in the letter dated 26.04.2010 for putting the name of applicant in ECL. Similarly respondents Nos.2 and 3 also submitted their reply asserting that applicant has no locus standi as IIBL had made a payment of Rs.25.00 million to Munawar Ali Fecto routed through SSL, when applicant was it's Chief Executive Officer, however admitted that the answering respondents in compliance of direction of this Court forwarded the names and particulars of some 08 persons for placing their names on the ECL as the present applicant was the CEO of SSL when said Munawar Ali Fecto obtained finance facility from IIBL routed through SSL and his name was arrayed as an accused in the above mentioned criminal original complaint No.21/2006.
12.Learned counsel for applicant argued that under the law the name of applicant for placement in the ECL was to be sent by the Registrar of this Court instead of Additional Registrar of SECP, but in the instant case it has been sent by respondents Nos.2 and 3 through Additional Registrar of SECP, Peshawar which is against law. He submitted that Munawar Ali Fecto obtained finance facility which was routed through SSL worth Rs.25.00 million which has been repaid by the said Munawar Ali Fecto and the role of SSL is to this extent while in the criminal complaint there are 14 accused in which the applicant is at serial No.13 but out of these 14 only 08 accused have been placed in the ECL and this pick and choose is injustice to the applicant. He argued that petitioner has not been charged with any shadowy transaction. Moreover the letter sent to the Interior Ministry for placing the applicant on the ECL is without reasons. The applicant has been charged in complaint filed under section 282-K read with sections 230(7) and 234(6) of the Companies Ordinance, 1984 and sections 409 and 109, P.P.C. So, at the most the charge against the accused is under section 109, P.P.C. even for that purpose accused is innocent as he neither aided the IIBL Directors nor is responsible for the irregularities committed by the IIBL Directors or their officers, so is not responsible for bankruptcy of IIBL. He submitted that his name may kindly be removed from the ECL as petitioner cannot move out of country for Hajj, Umrah and other purposes. Lastly submitted that applicant is ready to submit reasonable heavy bail bond in the light of order dated 18.05.2009 passed by this Court. Learned counsel placed his reliance on PLD 1997 SC 617, PLD 2016 SC 570 and 2017 SCM R 1179.
13.On the other hand Official liquidator resisted the application by submitting that private criminal complaint No.21/2006 has been filed against the applicant and same has not been decided up till now, so applicant is not entitled for the relief prayed for removal of his name from the ECL. Learned counsel for respondents Nos.2 and 3 submitted that Munawar Ali Fecto was provided finance facility by the IIBL routed through SSL and at that time applicant was CEO of SSL.
He submitted that SECP is authorized to move application to the Interior Ministry for putting the applicant in the ECL in the light of order dated 18.05.2009, passed by this court, so letter for putting his name on Eq., by Additional Registrar of SECP Peshawar has been correctly and lawfully sent and prayed for dismissal of application.
14.Arguments heard and record perused.
15.From the perusal of record it reveals that the root cause of putting the name of petitioner on the ECL is that respondents Nos.2 and 3 while making ordinary and routine scrutiny of the affairs of IIBL, noticed some irregularities and shadowy transactions allegedly made by the Directors and officers of IIBL due to which amount deposited by so many people/account holders sunk. Lastly SECP filed winding up application before this Court and this Court passed order dated 18.05.2009 which is reproduced as under:- All the concerned authorities including the Registrar are directed to notify the Company having been wound up and the name of the Chief Executive and those of the suspected Directors of the Board and other similar officials of the company including those individuals who have entered into shadowy transactions with the Company in the past be put on the exit control list forthwith unless and until they execute heavy amount of surety bonds to the satisfaction of the Court with the undertaking that whenever they are required, they shall attend the Court or if called upon to appear before the official liquidator while conducting inquiries of auditing accounts of the Company.
16.In the aforesaid order this Court held that the name of Chief Executive and other Directors of the Board and other similar officials of Company including those individuals who have entered into shadowy transactions with the company be placed on ECL till the time they execute heavy surety bond to the satisfaction of Court with undertaking that whenever such person would be required they shall attend the Court.
17.From the perusal of record it reveals that the name of petitioner along with other 07 persons was placed on the ECL under section 2 of Exit From Pakistan (Control) Ordinance, 1981 and in this respect Interior Ministry issued letter No.12/175/2009-ECL on 12.10.2009, wherein the name of applicant is entered at Serial No.7 while in "criminal complaint original No.21/2006" has been placed as accused No.13, however the total accused in the complaint are 14 while out of them the names of 08 persons were recommended by SECP Peshawar to be placed on the ECL vide aforesaid memorandum No.12/175/2009- ECL dated 12.10.2009.
18.It is pertinent to mention that Munawar Ali Fecto who availed finance. facility of Rs.25.00 Million from IIBL routed through SSL had returned same amount with markup to the Registrar of Hon'ble Supreme Court of Pakistan through pay order No.PAB 5701635 dated 27.05.2005 worth Rs.12,500,000/- and another payment through cheque No.PAB 0505651 worth Rs.39,68,493/- which has been admitted vide letter dated 12.10.2010 by the official liquidator, wherein it has been admitted that Munawar All Fecto has paid the above amount to the Hon'ble Supreme Court of Pakistan in May 2005 as conveyed to him vide letter dated 30.05.2005 except above said transaction/liability no other financial liability has been shown by the IIBL routed through SSL and no other transaction has been attributed to the SSL when applicant was its CEO either in criminal complaint or in letter sent by respondents Nos.2 and 3/SECP Peshawar through its Additional Registrar for putting his name on ECL.
19. Thus keeping in view the above circumstances and considering the submissions made by learned counsel for the parties, this Court is of the view that the order passed by this Court dated 18.05.2009 envisages that the names of persons be put on the ECL until they execute heavy amount of surety bonds to the satisfaction of this Court with the undertaking that whenever such persons are required they shall attend this Court and petitioner is ready to submit heavy bond as well as under taking to appear before Court as and when required as liberty of a citizen could not be curtailed by mere registration of criminal complaint, wherein the role attributed to the applicant is of abetment under section 109, P.P.C. Moreover the Additional Registrar SECP, Peshawar has sent names of 08 accused out of 14 and the person who obtained financial facility from IIBL he repaid all amount with profit. In this respect reliance is placed on judgments of Hon'ble Supreme Court of Pakistan in cases titled as Wajid Shams-ul-Hassan v. Federation of Pakistan cited as PLD 1997 SC 617, Federation of Pakistan through Secretary, WO Interior v. General (R) Pervez Musharraf and others cited as PLD 2016 SC 570 and Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others cited as 2017 SCM R 1179. Therefore application in hand to the extent of prayer-II is allowed and applicant is entitled for the relief provided in the order dated 18.05.2009 subject to furnishing of surety bonds of Rs. One Million with two sureties each in the like amount with the Additional Registrar (Judicial) of this Court along with submission of undertaking as mentioned in the order dated 18.05.2009. After completion of above said requirement respondent No.4 is directed to remove the name of petitioner from the Exit Control List vide order No.12/175/2009-ECL dated 12.10.2009 under section 2 of Exit from Pakistan (Control) Ordinance, 1981 appearing at serial No.7. So far as other prayers i.e. prayer Nos.1, 3 and 4 are concerned, learned counsel for applicant .has neither pressed nor argued about said reliefs, so the application to the extent of prayers 1, 3 and 4 is dismissed.