MUJAHID MUST AQEEM AHMED, J.---The petitioner-bank, who had advanced car loan facility to Zeeshan Jameel, respondent No.5 (respondent) had instituted a suit for recovery of loan amount before learned Judge, Banking Court, Multan whereas said respondent also submitted an application to respondent No. 3/Deputy Director FIA (CBC) Multan, with the allegation that loan documents were tampered with by the staff of petitioner-bank and bogus lease agreement with fake signatures of the said respondent had been prepared and copy thereof supplied to him. In pursuance of said application the FIA Authorities initiated an inquiry and during course of said proceedings, the investigating officer moved an application before the learned Sessions Judge, Multan in terms of section 94 of the Cr.P.C. for permission to obtain certified copy of the bank record. The request was allowed by the said learned Court vide order dated 23.9.2019. In this backdrop the petitioner-bank has approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) with the following supplication: "Wherefore it is respectfully prayed that the instant Writ Petition may kindly be accepted and impugned order dated 23.9.2019 passed by the learned Respondent No.1 be declared as having been passed illegally , without lawful authority without jurisdiction and also as being ineffective against the rights of the petitioner and in excess of jurisdiction as provided in 2017 SCMR 1218 .
That the Enquiry No. 155/2019 initiated by the respondents Nos. 2 to 4 be also declared illegal and unlawful and in excess of jurisdiction and be set aside."
2. Main thrust of arguments advanced by learned counsel for the petitioner is that in view of section 20 of the Financial Institutions (Recovery of Finance) Ordinance, 2001 (the F.I.0.) as interpreted in case Syed Mushahid Shah and others v. Federal Investigation Agency and others (2017 SCMR 1218 ) the provisions of F.I.O. have over riding effect on any other general law i.e. Cr.P.C./P .P.C. and as such the FIA is not competent to inquire into the matter . Further adds that learned Sessions Judge, Multan has passed the impugned order without jurisdiction and the same is liable to be set aside.
3. On the other hand, learned Law Officer assisted by learned counsel for the respondent has controverted the above submissions maintaining that section 20 of the FIO only deals with offences committed by a customer/loanee but it has no concern with any offence committed by Bank or its Staff Officers/Management.
Learned Law Officer has maintained that in Syed Muhammad Shah's case supra the apex Court has made observations that only the bank has remedy under the aforesaid provisions of law against the loanee/customer .
4. Contentions heard.
5. Preamble to the F.I.O. reflects that it is a special law promulgated to provide effective remedy for recovery of finances extended by banks and for fulfillment of obligation, as defined in section 2(e) of the said Ordinance, in favour of financial institution whereas language of section 20 of the F.I.O. is quite clear as all offences enumerated therein relate to commission of such offences by the customers/loanees and not by the bank-of ficers/managements etc. Thus prosecution against a person other than customer cannot be brought before Banking Court in terms of section 20(1) of the F.I.O. So was ruled in case Syed Mushahid Shah and others v. Federal Investment Agency and others (2017 SCMR 1218 ). For facility of reference concluding para of the said pronouncement is reproduced hereunder: "19. In conclusion, we find that the provisions of the Ordinance, 2001 are to have an overriding effect on anything inconsistent contained in any other law for the time being in force, including the ORBO, the Code (read with the P.P.C.) and the Act, 1974 (red with the Ordinance, 1962). In essence, 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. The Special Courts under the ORBO, the ordinary criminal Courts under the Code and the Agency under the Act, 1974 read with the Ordinance, 1962 would have no jurisdiction in the matter............ (emphasis supplied by me)
In the above case while interpreting section 20 of the F.I.O. the apex Court observed that the said provision of law relates to situations where an offence is committed by a customer of a financial institution who can only be tried by the Banking Court constituted thereunder and by no other forum. Thus with due reverence, the case law relied by learned counsel for the petitioner is distinguishable from facts of this case and is not applicable to this case.
6. If the stance of learned counsel for the petitioner is taken as true, it will amount to save and protect even offences of the bankers and their staff committed against their customers/account holders etc. whereas under the Pakistan Penal Code, 1860 and Offences in Respect of Banks (Special Courts) Ordinance, 1984 such offences have been made punishable. Of course the investigating agencies including local police/FIA etc. have the jurisdiction to investigate such cases, as per mandate of law and the offenders of such crimes can be prosecuted and punished. If the provisions of F.I.O. are interpreted in line with submissions made by learned counsel for the petitioner , it will amount to nullify the whole scheme of penal law for bringing to book the aforesaid offenders and will provide immunity to such perpetrators whereas law of land cannot be interpreted in a way to nullify the proper legislation for the benefit of any segment of the society . It has been ruled by a learned Division Bench of trials Court in case Faisal Farooq and 3 others v. SHO and another (2017 CLD 1) that in case prosecution is sought to be launched against a clerk or servant of customer or it is sought to be included in prosecuting any of bankers, agents, attorneys or brokers who have committed criminal breach of trust in respect of property , that may only be brought in terms of sections 408 and 409, P.P.C. and not under the F.I.O. If prosecution is sought to be initiated by any person other than a financial institution, it can only be done under penal laws other than the F .I.O.
7. In the present case, application was submitted by the respondent who is a private person/customer and not financial institution, as such provisions of F .I.O. are not attracted to the case in hand.
8. In view of above deliberations, to my view the respondent has rightly moved the F.I.A. authorities for initiating criminal proceedings against staff of the bank and learned Sessions Judge exercising his discretion has rightly passed the order impugned herein directing the bank to supply copies of loan record to the investigating officer/FIA.
No illegality , perversity or jurisdictional defect in these proceedings/orders could be pointed out by learned counsel for the petitioner .
9. In this view of the matter , I do not find any merit in this petition which is hereby dismissed with special costs of Rs.25,000/- to be deposited with Deputy Registrar (Judi.) of this Court within three weeks. In case cost is deposited in compliance of this order the same shall be paid to the respondent otherwise law will take its own course.