AHMED ALI M. SHAIKH, C.J.---Through instant writ petition under Article 199 read with Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of Criminal. Complaint No,17 of 2014 filed by the Respondent No,2 before the Banking Court No,1 at Karachi.
2. Briefly facts of the case are that petitioner, proprietor of Messrs AZM Chemical Company, Karachi, was granted running finance facility of Rs,60.00 Million and the demand finance facility of Rs,29.10 Million and regarding repayment obligations towards the Respondent No,2 Bank, he executed and signed guarantees, mortgage of immovable properties, hypothecation deeds dated 06.8.2009 and 21.09.2010, submitted stock report of chemicals, etc. The petitioner availed and utilized the finance facilities but could not fulfill his repayment obligations. The Respondent No,2 Bank filed recovery Suit No,B-101 of 2013, which is pending adjudication before the Banking Judge of this Court and as he illegally removed, sold out the hypothecated stocks of chemical of Rs,111,965,330.00 and not paid the finance misappropriated sale proceeds of the stocks, etc. the Bank filed Criminal Complaint bearing No,17 of 2014 against the petitioner for committing an offence, inter alia, punishable under section 20(i)(a)(b) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance").
3. In Banking Suit the petitioner filed leave to defend application, which on account of absence was dismissed with cost, against which petitioner filed Special High Court Appeal No,167 of 2014, which was dismissed vide order dated 28.4.2015, whilst allowing the petitioner to file statement of accounts and observing imposition of cost as unjustified. Against the said order, petitioner filed Civil Petition for Leave to Appeal No,81-K of 2015 and the honourable Supreme Court of Pakistan granted leave.
4. After notice, Respondent No,2 Bank filed comments on 10.6.2016, inter alia, raising preliminary objection that private Banks do not fall within the ambit of person as defined in Article 199 of the Constitution, therefore, no writ can be issued against the Bank and that the petitioner without exhausting the alternate efficacious remedy provided to him under the law has with ulterior motive rushed to this Court just to prolong the matter.
5. Mr. Sami Ahsan, learned counsel for the petitioner contended that in presence of recovery suit No,B-101 of 2013, inter alia, praying for judgment and decree to sell the hypothecated stocks the criminal complaint No,17 of 2014 filed by the Bank for alleged selling of hypothecated stocks of Rs, 111,965,330.00 by the petitioner thereby committing an offence, is not maintainable. He submitted that even otherwise the Bank has not filed any application and or taken such plea of selling the hypothecated stocks without Bank's consent in the aforesaid banking suit. He further submitted that M/s Premier Insurance Company has issued fresh fire insurance policy for all the pledged and hypothecated goods of the Respondent No,2 Bank, which nullifies the allegation of selling the hypothecated goods by the petitioner. He contended that the Banking Court has no pecuniary jurisdiction in the matter to proceed with the criminal complaint which is liable to be quashed.
6. Mr. S. M. Kazim, learned counsel for the Respondent No,2Bank submitted that under the law no writ can be issued against the private bank. As to the issuance of fresh "Fire Insurance Policy" by M/s Premier Insurance Limited, counsel pointed that the Bank instituted the suit in 2013 and filed criminal complaint in the year 2014 while the petitioner for the first time unearthed the "Fire Insurance Policy" in February, 2016. He further submitted that even otherwise his objection as to the maintainability of the criminal complaint filed by the Bank were discarded by the Banking Court vide order dated 02.5.2015, which order being not appealed against has attained finality and at that point of time petitioner did not file any Insurance Policy. He further submitted under section 7 of the Ordinance the Banking Court has exclusive jurisdiction to entertain criminal complaint filed under section 20 ibid. He submitted that no fundamental right of the petitioner, who has usurped finances of 4/5 banks and also facing criminal proceedings filed by other banks, has been infringed. He, therefore, prayed that the instant petition be dismissed. The learned Assistant Attorney General adopted the arguments advanced by the learned counsel for the Bank.
7. We have heard the learned counsel for the petitioner-respondent No,2 Bank and Assistant Attorney General and minutely gone through the material available on record. There is no cavil that the petitioner has availed the finance facilities from the respondent No,2-Bank and created, executed and or signed different documents besides hypothecation deeds. As the petitioner failed to honour his obligations as per agreements entered between him and the Bank, the latter filed Suit No,B-101 of 2013. According to the respondent, as the petitioner without permission removed and or sold out the hypothecated goods and misappropriated and embezzled the amount of sale proceeds and dishonestly breached the terms and conditions of the letter of hypothecation, etc., the Respondent Bank filed criminal complaint No,17 of 2014. The trial Court vide order dated 02.5.2015 discarded the objections raised by the petitioner/accused regarding maintainability of the complaint, recorded statement of attorney of Respondent Bank 06.5.2016 and issued Bailable Warrant on 13.5.2014. On 08.1.2016 charge was framed to which petitioner pleaded not guilty.
Thereafter on 24.2.2016 petitioner approached this Court seeking quashment of aforesaid proceedings pending before the Banking Court, The ground of pecuniary jurisdiction of the Banking Court to proceed with the matter was already decided by the trial Court, which order has attained finality. In this regard it is pertinent to recap here that the Respondent Bank has filed the Criminal Complaint in terms of Section 20 of the Ordinance. It would be advantageous to reproduce hereunder subsection (1)(a)(b) and (c) of the Ordinance:- "20. Provisions relating to certain offences.-
(1) Whoever-
(a) dishonestly commits a breach of the terms of a letter of hypothecation, trust receipt or any other instrument or document executed by him whereby possession of the assets or properties offered as security for the re-payment of finance or fulfillment of any obligation are not with the financial institution but are retained by or entrusted to him for the purposes of dealing with the same in the ordinary course of business subject to the terms of the letter of hypothecation or trust receipt or other instrument or document or for the purpose of effecting, their sale and depositing the sale proceeds with the financial institution; or
(b) makes fraudulent mis-representation or commits a breach of an obligation or representation made to a financial institution on the basis of which the financial institution has granted a finance; or
(c) subsequent to the creation of a mortgage in favour of a financial institution, dishonestly alienates or parts with the possession of the mortgaged property whether by creation of a lease or otherwise contrary to the terms thereof, without the written permission of the financial institution; or (d)
8. It is settled principle of law that whenever an offence is committed by a customer of a financial institution within the contemplation of the Ordinance, 2001, it could only be tried by the Banking Courts constituted thereunder and no other forum. Reliance in this regard can be placed on the dicta laid ddwn by the honourable Supreme Court of Pakistan in the case of Mushahid Shah v.
Federal Investment Agency reported in 2017 SCM R 1218.
9. The submission of the learned counsel for the petitioner that when the Respondent Bank in Suit No,B-101 of 2013 has, inter alia, sought judgment and decree for selling the hypothecated stocks, the criminal complaint No,17 of 2014 filed on the allegation of selling the hypothecated stocks by the petitioner is not maintainable is totally misconceived. Bare reading of the Ordinance reveals that whenever the offence is committed in terms of Section 20, the Banking Court would take cognizance upon a complaint filed' by authorized person. Moreover, it is settled principle of law that pendency of civil proceedings relating to same issue is not a bar to commencement or continuation of criminal proceedings and both can proceed concurrently as conviction for criminal offence is altogether a different matter from civil liability.
10.There is yet another important aspect of the case i,e, the petitioner has approached this Court directly for quashment of proceedings of criminal complaint No,17 of 2014 without first exhausting the alternate remedies available to him under the law by the approaching the trial Court. Even otherwise, in the given facts and circumstances of the case, such direct approach for quashment would also amount to depriving the other side from presenting its case and or bringing home the guilt of the accused. Therefore, the instant petition on this ground alone is also liable to be dismissed.
11.As to the contention of the learned counsel that when M/s Premier Insurance Limited has issued fresh Fire Insurance Policy for all the pledged and hypothecated goods, the allegation of selling the said goods/stocks is untenable, suffice it to say that the said policy was issued on 11.12.2015 for insurance period from 09.12.2015 to 08.12.2016. It seems that question of issuance of insurance policy is afterthought and raised just to prolong the proceedings and twist the issue moreso when the question of maintainability of the complaint was decided by the trial Court much earlier.
Nonetheless, this Court under Article 199 of the Constitution has no jurisdiction to resolve the disputed question of facts warranting recording of evidence. If, prima facie, an offence is made out the normal course of trial before the trial Court cannot be allowed to be deflected except in presence of very exceptional circumstances, which are lacking in the case in hand.
12.Before parting with this Judgment we may observe that the learned counsel for the petitioner while drafting the petition has not portrayed the facts regarding dismissal of leave to defend application and fate of the High Court Appeal properly, which reflects adversely on merits of the case as well. In paragraphs Nos,3 and 4 of the petition under the heading "Facts" it is pleaded that "thereafter due to absence of petitioner/accused in Suit No,B-101/2013, the Leave to Defend was Dismissed vide Order dated 02.5.2014, announced in open Court." and the petitioner/accused challenged the Leave dismissal Order dated 02.5.2014, in Special High Court Appeal No,167/2014, which was partly allowed vide Order dated 28.4.2015." However, the factual position is that the learned single Judge while dismissing the leave to defend application vide order dated 02.5.2014 observed that:- "8. As I have already held that the listed applications filed by the defendants for leave to defend- the suit are not maintainable in view of the law laid down by the Hon'ble Supreme Court the same are hereby dismissed with costs of Rs,10,000.00 (Rupees ten thousand only) which shall be paid by each of the defendants to the Sindh High Court Library within fifteen (15) days hereof"
(emphasis added)
Against aforesaid order dated 02.5.2014 petitioner preferred Special High Court Appeal No,167 of 2014, which was also dismissed by this Court vide order dated 28.4.2015, last paragraph of which is reproduced hereunder:- "On account of the failure of the appellants to come `up with details as required under section 10(4)
(5) of the Ordinance, the learned Banking Judge who had no option but to dismiss the leave to defend application. We, therefore, dismiss this appeal. However, imposition of cost on account of the pleadings in the leave to defend applications appear to be harsh, especially when the appellants' counsel was not present to address the Court. Order to impose cost was therefore, not justified. Though leave to defend application is dismissed, the appellants shall nevertheless be entitled to place statement of accounts when the matter would come up before the Banking Court for settlement of accounts." (emphasis added)
In view of our above discussion, instant petition is hereby dismissed leaving the petitioner to avail alternate remedy provided under the law for redressal of his grievance, if so advised, with no order as to COM.