MUHAMMAD QASIM KHAN, J.---Petitioner (Noman Almas) seeks pre-arrest bail in case FIR No.331 of 2018 dated 05.8.2018 under section 380, P.P.C. registered at Police Station Saddar Phool Nagar , District Kasur , got lodged by Ghulam Abbas (complainant-respondent No.2), as representative of National Cargo (Pvt) precisely with the allegation that National Cargo deals to safeguard bank's pledged stock. Salm an Noman Enterprises Limited had availed loan facility from National Bank of Pakistan by pledge of its cotton stock. On 22.07.2018, however , the pledged stock was stolen which theft was detected on 23.07.2018 by godown (warehouse) labour . The information was conveyed to the office of National Cargo Private Limited and onwards to National Bank, whereupon, two officers from the bank visited the site and ultimately on the direction of Bank authorities, FIR was got lodged by the complainant.
2. The main contention of learned counsel for the petitioner is that though the complainant was working and acting on behalf of a private company , but affairs of the said company were directly linked with the Bank as to ensure safety to the stock pledged by the said bank, was the responsibility of the said company , therefore, Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was applicable and the dispute could be agitated within the confines of said Ordinance, thus, the local police had no jurisdiction to register a criminal case on the application of the complainant . In support of his contentions the learned counsel placed reliance on the case "Syed Mushahid Shah and others v. Federal Investigation Agency and others" (2017 SCMR 1218 ) and "Muhammad Asif Nawaz v . ASJ and others " (2014 PCr .LJ 1 = 2014 CLD 45 ).
3. On the other-hand, learned law officer as well as the learned counsel for the respondent-complainant have opposed the contention of learned counsel for the petitioner by arguing that National Cargo cannot be deemed to be a company within the meaning of Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, no other remedy under the Banking Laws was available and there was no bar for the respondent complainant to have recourse to the learned Ex-of ficio Justice of Peace.
4. I have heard the arguments of learned counsel for the parties and examined the record.
5. There is no dispute that Salman Noman Enterprises is an independent entity and the complainant/respondent was acting as representative of the said company , but considering the contents of the FIR it remains an admitted position that to safeguard the pledged stock of National Bank of Pakistan, was one of the primary obligation/ responsibility of the said company and therefore, it can safely be said that functions of the company were directly linked with the affairs of the bank. Furthermore, it has been clearly mentioned in the FIR itself that on the direction of the Bank authorities, the FIR was got lodged by the complainant, as such, practically the complainant on behalf of the company had acted as some sort of agent for the Bank. In order to make the situation more clear , Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is reproduced hereunder:- "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 poss ession of the assets or properties offered as security for the repayment 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 subje ct 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."
Once it is admitted that complainant-com pany had been entrusted the pledged stock by the bank for a specific purpose to ensure its security and safety , therefore, function of the company definitely connected with the bank, and its such affairs would be covered by section 20 of the Ordinance, reproduced above and if the said company commits any default towards its above pointed obligation, the Bank would have a claim to raise against it within the bounds of said Ordinance. The proposition has been well settled by the Hon'ble Supreme Court of Pakistan in the case "Syed Mushahid Shah and others v. Federal. Investigation Agency and others" (2017 SCMR 1218 ), wherein on the of question was with regard to removal of hypothecated or pledge d goods, disposal of mortgaged properties and/or breaching the terms of the finance agreement, instrument, etc. and the apex Court held that provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 have overriding effect on anything inconsistent contained in any other law for the time being in force, including Cr.P.C. read with P.P.C., and whenever an offence is committed by a customer , it could only be tried by the Banking Courts constituted thereunder and no other forum and the ordinary criminal court would have jurisdiction in the matter . Similar view was taken by this court in the case "Muhammad Asif Nawaz v. ASJ and others" (2014 PCr.LJ 1 = 2014 CLD 45). In this context the case "Alamdar Hussain v. National Accountability Bureau through Chairman and others" (2017 CLD 1101) is also referred, wherein, it was laid down that "Where accused can be tried or punished under two different statutes then 'Rule of Lenity' (a rule of construction of statutes that criminal statues ambiguities are resolved in favour of defendant or accused) would also attract in favour of accused persons."
6. On careful perusal of the judgment of the apex Court as well as this Court it becomes crystal clear that remedy before the banking court was available to the exclusion of all other forums, despite that action of the complainant in filing a complaint and getting registered a criminal case against the petitioner and on that basis attempt to arrest the petitioner is clear indicator of mala fide on the part of prosecution, and without touching the merits of the case, this fact alone is sufficient to confirm pre-arrest bail. Consequently , this petition is allowed and interim pre-arrest bail earlier granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bond in the sum Rs.100,000/- with one surety in the like amount to the satisfaction of learned trial court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.