AZHAR SALEEM BABAR, J.The instant writ petition has been filed under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, whereby following relief has been solicited by the petitioners.
It is, therefore, most respectfully prayed that while accepting the instant writ petition i. All proceedings and investigations or summoning of the officers/managers of the Petitioners (Petitioners 2 to 15) by respondents Nos. 1 to 3 may kindly be declared to have been initiated without lawful authority . ii. All actions of respondents Nos, 1 to 3 may kindly be declared to be without lawful authority and of no legal effect.
It is further prayed that respondents Nos, 1 to 3 may kindly be directed to return all original record taken by them from the petitioners. iii. The letters dated 22.05.2008 and 05.06.2008 issued by respondent No, 2 may kindly be declared to have been issued without lawful authority , without jurisdiction, being illegal, void-ab-initio, and against the principles of natural justice and equity . iv. That a writ of prohibition may also be issued to respondents Nos,1 to 3 to restrain them from proceeding against the petitioners illegally , arbitrarily and without lawful authority . v. That respondents Nos, 1 to 3 may kindly be restrained from summoning/harassing officials and Managers of petitioner No.1. vi. Any other relief which this Hon'ble Court deems appropriate may also be granted.
2. Precise facts of the case as per the contents of petition are that respondent No,04 opened US Dollar Account No,5010 with Bank-al-Habib, petitioner No,1 herein and thereafter applied for loan in lieu of the said US Dollar Account as security and as per the version of petitioner loan was approved in favour of respondent No,
4. It has been stated that respondent Mohammad Farooq Khan, again applied for loan and offered another US Dollar Account as security and the request was also accepted and the loan was approved in favour of respondent No,4. It has further been stated that respondent No, 4 failed to pay back loan amount whereupon several letters and notices were issued to him for payment of outstanding amount. It has been contended that petitioner/bank finally was constrained to comply with the directives of the State Bank of Pakistan issue d vide circular dated 2.07.1998 and US Dollar Account was adjusted against loan obtained by respondent No,1 by converting US Dollar into Pakistani Rupees and adjusted the same in default accounts. It has further been contended that respondents Nos,4 to 7 did not object the adjustmen t of loan however respondent No,4/defaulter wanted to retain his Dollar Account intact, therefore, in order to harass and pressurize the petitioner bank, he lodged an FIR bearing No, 24/2002 in offences under sections 420, 468,471/409, P.P.C. read with section 5(2), P.C.A. It has been alleged that respondent No, 4 filed an 'application before Governor State Bank of Pakistan on 24.10.2002 whereupon Director State Bank of Pakistan summoned the record and after scrutiny the complaint was consigned to record without any further action. Respondent No, 4 also filed a suit against the petitioner bank before Banking Court Mirpur which was dismissed by learned Judge Banking Court Mirpur on 14.01.2005. Respondent No, 4 thereafter in order to humiliate the petitioner Bank made an application to the Ehtesab Bureau whereupon Director Investigation issued notices to petitioners Nos, 2 to 15 vide letters dated 22.05.2008 and 05.06.2008. It is the claim of petitioners that Ehtesab Bureau is not competent to investigate into the complaint lodged by respondent No, 4 and investigation conducted by Ehtesab Bureau is mala fide and without lawful authority . It has been argued that dispute between the parties is of civil nature, so Ehtesab Bureau is not empowered to initiate criminal proceedings against the petitioners. A request has been made for quashment of proceedings of Ehtesab Bureau.
3. Written statements on behalf of respondents have been filed wherein it has been stated that the petitioners have no locus standi to file the instant writ petition, therefore, the writ petition is liable to be dismissed. It has further been stated that according to section 23 of Ehtesab Bureau Act 2001 the Manager or Director of the bank or financial institutions are duty bound to report to the Chairman of Ehtesab Bureau about all unusual or large transactions and if they fail to supply such information, in accordance with subsection (1) shall be punished with rigorous imprisonment. The petitioners committed the offences of corruption, corrupt practice, forgery , fraud cheating and misappropriation which are scheduled offences so the Ehtesab Bureau has exclus ive jurisdiction to investigate the scheduled of fences. A prayer has been made for dismissal of writ petition.
4. I have perused the record in the light of arguments advanced at bar. The petitioners have mainly focused on the following points:-
(i) That the respondents defaulted the loan facility advanced to them so the petitioner bank rightly exercised its powers under directives of State Bank of Pakistan vide circular dated 02.07.1998.
(ii) That respondent No, 4 invoked jurisdiction of Civil Court by filing a civil suit which was dismissed and an appeal is pending adjudication before the High Court. It has been argued that dispute between the parties is of civil nature so the Ehetesab Bureau is not empowered to initiate criminal proceedings against the petitioners.
(iii) A special law namely "Offence in Respect of Banks (Special Courts Ordinance), 1984 is applicable in the territory of Azad Jammu and Kashmir and Banking Court is vested with the exclusive power to entertain such dispute. It has been claimed that Banking Court Ordinance is a special law which is effective not withstanding anything contained in the Code or in any other law for the time being in force. So any parallel proceeding is not authorized by law .
(iv) Azad Jammu and Kashmir Legislative Assembly was not authorized to enact Ehtesab Bureau Act in view of Article 31 read with schedule-III of item No, 14 of the Interim Constitution, 1974.
(v). The petitioner bank has been established under the Companies Ordinance and is being administered by the private persons, therefore, Azad Jammu and Kashmir Ehtesab Bureau Act does not extend to the petitioner bank.
5. It looks appropriate to attend to the points raised by the petitioner bank. The petitioners relied on a promissory note, letter of continuity , agreement between the parties and a letter of set of by contending that they were amply empowered to liquidate or adjust the amount of foreign currency account of respondent No, 4 for adjustment of loan extended to him. Ehtesab Bureau has attached a detailed summary of inquiry conducted into the matter . The contents of inquiry comprising 11 pages transpire that the petitioner bank procured forged signatures of respondent No, 4 for liquidation or transfer of foreign currency amount. Ehtesab Bureau of Azad Jammu and Kashmir forwarded the signatures of respondent No, 4 for comparison of his purported signatures on bank documents.
Federal Investigation Agency extended its expert opinion on 10.04.2008 by stating that signature of respondent No,4 as compared to his purported signature on bank documents are forged. Inquiry/ investigation conducted by Ehtesab Bureau is a detailed document. It would be appropriate to quote couple of examples of forgery alleged to have been committed by the bank of ficials.
3.13 As the agreement dated 21.06.1993 reported 3.10 (v) was signed only by Mr. Sh. Anis and Ashraf Khan and not signed by Mr. Farooq Khan . The documents appearing on Sr.No, Ito IV were submitted to hand writing expert FIA HQ Islamabad for verification of signature of Mr. Farooq Khan and he has reported that signature of Mr. Farooq Khan are forged (Signature marked C to C3 by hand writing expert).
3.14 Further the bank has also provided undated letter of Guarantee signed by Mr. Farooq Khan for Rs, 45,480,000/- in favour of Bank on behalf of M/S Kashmir Polytex Mirpur . The signature of Guarantor , Mr. Mohammad Farooq Khan are also declared "forged" by hand writing expert (marked C-5).
6. If at all, the petitioner bank was authorized to liquidate foreign currency account of respondent No, 4 in view of directive issued by State Bank of Pakistan even then the bank was not authorize d to do the same by committing forgery . The petitioner's claim that they have rightly liquidated/transferred the amount of foreign currency of respondent No, 4 for adjustment of loan, is therefore, not tenable.
7. It has been argued on behalf of the petitioners bank that the respondent himself opted to file a civil suit which is still pending adjudication. Learned counsel for the petitioners has argued that a parallel criminal inquiry cannot be initiated in presence of civil proceedings. He has relied on PLD 2009 Karachi 638 in support of his version. The cited judgment has distinguishable facts and is not applicable to the petitioners' case.
8. In case at hand, respondent No, 4 has alleged that the petitioners have comm itted forgery by transferring his foreign currency amount so parallel criminal proceedings can be conducted in presence of civil suit. This view finds support from 2007 MLD 1505 and PLD 2008 Lah. 358 Learned Lahore High Court has decided in later judgment that continuation of civil suit is no bar to criminal proceedings even though both the cases related to the same subject.
9. The petitioner has raised objection towards jurisdiction of Ehtesab Bureau by contending that a special banking court has been established to attend such controversies. It would suffice to say that the Azad Jammu and Kashmir Ehtesab Bureau Act 2001 provides under Section 2(ii) that provisions of this Act shall have effect not withstanding anything contained in any other law for the time being in force and under subsec tion (3) the offences committed after 1st Jan. 1985 have been made triable under this Act. In view of allegations levelled by respondent No, 4 and in view of investigation conducted by Ehtesab Bureau so far, offences under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477(a) of A.P.C. can be investigated by Ehtesab Bureau under second schedule attached to the Act.
10. So far as jurisdiction of Ehtesab Bureau in relation to investigation against officials of bank is concerned, Ehtesab Bureau has rightly relied on a full Court judgment of Supreme Court of Azad Jammu and Kashmir in a caste titled "Ehtesab Bureau v. Abid Hussain and 3 others" decided on 08.09.2014. The apex Court in the cited case has concluded as under:-- In view of the findings and reasons discussed hereinabove, after perusal of the relevant statutory provision, the case law referred to by the learned Chief Prosecutor and the learned counsel for the parties and on the strength of Mohammad Shabbir's case (supra) [2012 YLR 2017], we are unanimous on the point that the accused- respondents being the Bank employees squarely fall in the term 'any person' and are liable to be investigated and inquired into by the Ehtesab Bureau, Azad Jammu and Kashmir and prosecuted and tired by the Ehtesab Court.
Therefore, we are not convinced with the findings recorded by the learned High Court, while accepting the Criminal Revisions filed by the accused-respondents and disposing off the reference sent by the Judge, Banks (offences)
Special Court, AJK, Muzaf farabad.
12. Jurisdiction of Azad Jammu and Kashmir Ehtesab Bureau in relation to investigation against officials of bank functioning in Azad Jammu and Kashmir cannot be disputed in view of afore-cited judgment of apex Court of the State.
13. Before parting with the discussion it is added that officials of petitioner bank have been avoiding investigation into the offences of forgery and misappropriation by resorting to different tactics since two decades. The instant writ petition also looks a tool to avoid criminal investigation against the petitioners.
The upshot of the above discussion is that the writ petition is dismissed with costs.