' AJMAL MIAN, C.J.--By this common judgment we intend to dispose of the above two writ petitions, whereby action of taking cognizance by respondent No,1, i.e, the Presiding Officer Special Court for offences in respect of Banks, (hereinafter referred to as the Special Court) under Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No,IX of 1984), hereinafter referred to as the Ordinance has been impugned.
2. The brief facts leading to the filing of the above petitions are that respondent No,2, A. Habib Ahmed maintained two accounts with Hong Kong and Shanghai Banking Corporation, hereinafter referred to as the Bank and availed of overdraft facility of about Rupees twenty million. Against the above facility respondent No,2 pledged 2,98,600 shares of Boots & Co. (Pakistan) Ltd. , hereinafter referred to as the Company of Rs,10 each by way of security, under the Pledge Agreement dated 18-2-1986, hereinafter referred to as the Agreement. It seems that as per the terms of the Agreement respondent No,2 had not paid the amount due to the bank, though he was asked on 28-1-1987 to adjust the outstanding in the aforesaid two accounts within 10 days. He was also told that failing which the bank would be constrained to start selling the securities pledged with it. It is the case of the petitioners that since respondent No,2 failed to adjust the outstanding amount, the bank on 18-5-1987 through its broker respondent No,4 in the first petition, and respondent No,3 in the second petition, namely, Jehangir Siddiqi, hereinafter referred to as the stock broker contacted to sell 93,400 shares to petitioner No,1, two lots of 93,401 shares to petitioner No,2 at the rate of Rs,55 per share and 37,300 shares to petitioner No,3 in various lots at different rates ranging between Rs,65 and Rs,78 prior to 18-5-1987. The above three petitioners will hereinafter be referred to as the purchasers.
' Whereas it is the case of respondent No,2 during the arguments that the Bank Manager Mr. M.K.C.
Scott, petitioner in the second petition, hereinafter referred to as the Manager in conspiracy with the stock broker and the purchasers manipulated the market and brought the price of the shares of the Company down from Rs,92 to Rs,65 and then by private negotiations sold the shares to petitioners 1 and 2 at the rate of Rs,55 per share with the intention to defraud him and to cause loss to the Bank. It further seems that respondent No,2 after. Serving a notice filed Suit No,428 of 1987 in this Court against the Bank and the Company for declaration, injunction and for the recovery of Rupees five crores as damages. Subsequently, the purchasers and the stock broker were also impleaded as defendants in the suit. Alongwith the suit an application under Order 39, Rules 1 and 2, C.P.C. Was filed for ad interim injunction, which was initially granted on 31-5-1987 but after hearing the arguments of the learned counsel for the parties, a learned Single Judge by a detailed order dated 2-7-1987 declined the above application. It also seems that the Bank has also filed Suit No,737 of 1987 in this Court against respondent No,2 for the recovery of Rs,70,97,535 being the balance amount outstanding in the two accounts against the respondent No,2 after adjusting the sale proceeds of the shares. It further seems that respondent No,2 on 5-6-1988 filed a direct complaint (Criminal Complaint No,12/1938) in the Special Court against the Manager , the stock broker and the purchasers under sections 403, 406, 409 and 109, P.P.C. Read with the Ordinance.
After the receipt of the above complaint the Special Court examined respondent No,2 under section 200, Cr.P.C. And thereafter passed the impugned order of taking cognizance and ordering the issuance of bailable warrants against the above accused in the sum of Rs,10,000 each. It may be advantageous to reproduce the above order, which reads as under: "Offences under sections 403, 406 and 409 read with section 109, P.P.C. Are indicated.
' Issue BWs in the sum of Rs,10,000 (ten thousands) to each of the five accused.
(Sd.)
Z.A. Channa 5-6-88"
' The purchasers being aggrieved by the above order filed Constitutional Petition No, 0-726 of 1988 and the Bank Manager filed Constitutional Petition No, D-804/88.
3. In support of the above two petitions M/s. Ali Ahmad Fazeel and Azizullah K.Shaikh, learned counsel for the petitioners have urged as follows:
(i) That the proceedings before the Special Court in the instant cases are without jurisdiction as the subject-matter of the complaint is not a scheduled offence as defined by Section 2(d) of the Ordinance.
(ii) That since the proceedings before the Special Court are without jurisdiction, the petitioners are not obliged to file 249-A, Cr.P.C. Or 265-K; Cr.P.C. Application before the Special Court.
On the other hand Mr. Abdul Mujeeb Prizada, learned counsel for respondent No, 2 has urged as follows:
(i) That since by disposing of the shares at a lower price on account of manipulation and the conspiracy on the part of the Bank Manager, the stock broker and the purchsers, the Bank has suffered loss inasmuch as it could not recover its full dues from the sale proceeds but still the above sum of Rs,70,97,535 is claimed to be due, the offence falls within the ambit of a scheduled offence as defined in Section 2(d) of the Ordinance.
(ii) That since under subsection (8) of Section 5 of the Ordinance the Special Court in all matters with respect to which no procedure has been prescribed by the Ordinance is to follow the procedure prescribed by the Criminal Procedure Code for the trial of cases by Magistrates, the Bank can file an application under section 249-A, Cr.P.C. Before it, and, therefore, they have adequate alternate remedy and thus the above writ petitions are not competent.
(iii) That under section 4(6) of the Ordinance the Special Court if in the course of a trial forms an opinion that any of the offences which.The accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence and, therefore, in the instant case the Special Court even during the trial can examine the question whether the alleged offences or any of them falls within the definition of scheduled offence.
4. Adverting to the main contention of the learned counsel for the parties whether the alleged offences fall within the definition of the scheduled offence given in section 2(d) of the Ordinance, it may be pertinent to reproduce the same, which reads as follows: "2(d) 'scheduled offence' means an offence specified in the First Schedule and alleged to have been committed in respect of, or in connection with the business, of a Bank."
' A perusal of the above-quoted definition of the scheduled offence indicates that there are two ingredients which should be present in order to make an offence as a scheduled offence namely,
(i) that the offence should be specified in the First Schedule to the Ordinance, and (ii) the offence should have been committed in respect of or in connection with the business of a Bank. If either of the above two ingredients is missing in a case, the Special Court has no jurisdiction. In the instant cases the offences mentioned in the direct complaint find place in the First Schedule to the Ordinance and, therefore, the only question which requires consideration is as to whether the alleged offences have been committed in respect of or in connection with the business of the Bank.
M/s. A.A. Fazeel and Azizullah K. Shaikh have vehemently urged that the grievance of respondent No,2 in the direct complaint was that he was defrauded and he was caused loss and not the Bank.
They have further submitted that on the basis of admitted facts it cannot be even urged that the alleged offences have been committed in respect of or in connection with the business of a bank.
They have also submitted that the disputes are of a civil nature which are subject-matters of two civil suits pending in this Court.
' On the other hand Mr. Abdul Mujeeb Pirzada learned counsel for respondent No,2 has tenaciously urged that by disposing of the pledged shares at a lower price on account of manipulation and conspiracy on the part of the accused, they have caused loss to the Bank inasmuch as there still remained a balance of Rs,70,97,535 payable by respondent No,2 to the Bank as claimed by the latter and, therefore, the offences have been committed in respect of or in connection with the business of bank.
5. We have perused the contents of the direct complaint and the statement of respondent No,2 under section 200, Cr.P.C. Recorded by the Special Court and we find that the complainant has not uttered a single word about the alleged loss to the Bank. On the contrary he has deposed that the loss has been caused to him. In this connection it may be pertinent to reproduce his aforesaid statement, which reads as follows: "I produce the complaint which I have filed against the 5 accused (1) N.K.G. Scott, (2) Jahangir Siddiqui, (3) Ali Hussain, (4) Amin Essa Tai, and (5) Aziz Fida Hussain as Ex.1/A. Whatever I have stated in my complaint is true. My complaint is that accused Scott the Manager of the Hong Kong Bank has deceived me and unauthorisedly and surreptiously sold off 298,600 shares of the Boots Company (Pakistan Ltd.) of which company I am Director. Furthermore, . The said Manager Scott in conspiracy with the other 2 accused Jahangir Siddiqui and Aziz Fida Hussain brought down the price of the shares from their original face value of 92 per share to 65 and thereafter sold my shares dishonestly at the further low price of 55 rupees to accused Ali Hussain and Amin Essa Tai, through accused Jahangir Broker."
' It is an admitted position that the Bank has not come forward with the allegation that its Manager has caused any loss to it in the aforesaid transaction of sales of pledged shares. On the contrary the Bank has filed the suit against respondent No,2 for the recovery of A the balance loan amount on the assumption that the aforesaid sale of the pledged shares was normal. In this regard, it may also be pointed out that even respondent No,2 has claimed the damages for the alleged loss against the Bank and not from its Manager. If we were to read the definition of a scheduled offence given in Section 2(d) of the Ordinance with the other provisions of the Ordinance, particularly, subsection (4) of Section 6 which provides "Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the Bank in respect of which the offence was committed of compensation for the loss caused to it by the offence", it becomes evident that the object of the Ordinance is two-fold, firstly to punish accused persons who are guilty of a scheduled offence and secondly to compensate the Bank for the loss suffered by it on account of the commission of the offence by providing the payment of compensation. The object does not seem to be to provide any relief to an individual who may be aggrieved by an action of a Bank employee. In the instant cases, the respondent No,2 has filed the direct complaint not for, the purpose that the Bank should get the balance amount of its dues but to get the alleged accused punished as pointed out hereinabove.
' We are, therefore, inclined to hold that the alleged offences in the instant cases do not fall within the ambit of Section 2(d) as scheduled offences. In this view of the matter the Special Court has no jurisdiction in the instant cases.
6. This leads us to the second submission of the learned counsel for the parties, namely, whether we should ask the petitioners to file an application under section 249-A, Cr.P.C. Before the Special Court or should we allow the above petitions after having concluded that the alleged offences are not covered by the definition of scheduled offences given in the Ordinance. Mr: Ali Ahmad Fazeel has referred to the cases of the Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279 at page 287), Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 Supreme Court 450) and Husein Sugar Mills Ltd. , Karachi v. The Islamic Republic of Pakistan and another (1981 PTD 169 at page 177), in order to urge that it has been consistently, held by this Court that in cases where the impugned action or order is without jurisdiction, the alternate remedy is no bar to the grant of relief in exercise of constitutional jurisdiction. He has also referred to the following cases pertaining to the Ordinance:
(i) Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another reported in 1985 PCr.LJ 890 at 896. In which a Division Bench of the Lahore High Court while construing, inter alia, subsection (4) of section 6 of the Ordinance, observed that the main object of the Ordinance appeared to be the speedy disposal of the cases and also securing the amount of the Bank for which the offence had been committed. It was also held that Section 497(2), Cr.P.C. Can be pressed into service for bail in respect of an offence under the Ordinance.
(ii) Mushtaq Hussain Shah v. The State reported in 1986 PCr.LJ 567 at 571, in which a learned Single Judge of the Lahore High Court, while dealing with the case of a Special Court under the Ordinance, held that only scheduled offences committed either in respect of a Bank or in connection with business of a Bank are triable by Special Court and that the officers of Director Audit and Accounts Works Department who were accused of commission of forgeries and obtaining of cheques in favour of bogus firms from the Bank were not triable by the Special Court as the offences were not committed in respect of a Bank or in connection with the business of a Bank but were committed in the office of Director Audit and Accounts.
' Taufiq Ahmad v. S.H.O. Sialkot reported in 1987 PCr.LJ 2384. In the above case a learned Single Judge of the Lahore High Court has held that the remedy available to an accused under section 249-A after submission of challan to the Court does not disentitle him to press into service the writ jurisdiction of the High Court. The learned Single Judge in the aforesaid case allowed the writ on the basis of the special facts of that case and quashed the F.I.R. And the proceedings taken thereunder.
(iv) Mir Muhammad Nawaz Khoso v. The State through the Deputy Commissioner Nasirabad at Dera Murad Jamali, reported in 1987 PCr.LJ 2350 in which a Division Bench of the Baluchistan High Court held that conviction under section 302, P.P.C. By a Tribunal under the Criminal Law (Special Provisions) Ordinance (II of 1968) which was found to be coram no judice on account of non- compliance with the requirements of Sections 6 and 7 of the aforesaid Ordinance would attract exercise of writ jurisdiction although the convict had remedy by way of appeal which had been filed by him before the Appellate Authority. It was further held that a remedy of appeal in special and peculiar circumstances of that case was not adequate remedy and, therefore, the writ was allowed and the conviction was set aside and the case was remanded to the Deputy Commissioner for retrial.
' Mr. A.A. Fazeel has also referred to the case of Iftikhar Ahmad v. The Muslim Commercial Bank Ltd.
And another reported in PLD 1984 Lahore 69 and the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others reported in PLD 1987 SC 447. In the former case a learned Single Judge of the Lahore High Court held that there is a guarantee given in Articles 199 and 203 of the Constitution to an aggrieved person to approach a High Court against any excess, illegality or injustice committed by any authority or Court in its territorial jurisdiction and that the purpose of the provisions of Article 203 in the Constitution itself appears to be that if the legislature for any reason takes away the appellate or the revisional powers of the High Court in respect of any matter, or fails to supply the same in certain cases, the High Court shall still be left with a power to redress the genuine grievances of the aggrieved persons and see that injustice, if any, done by the subordinate Courts is not perpetuated, whereas in the later case, a Full Bench of the Hon'ble Supreme Court held as follows: "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it 'rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
' On the other hand, Mr. Abdul Mujeeb Pirzada learned counsel for respondent No,2 has attempted to distinguish the above cited cases by urging that the facts of the cases are different from the instant cases. He has also referred to the following cases in order to contend that alternate remedy in the form of Section 249-A, Cr.P. C. Or the power with the Special Court under subsection (6) of Section 4 not to try an offence which is not a scheduled offence is adequate alternate remedy:
(i) F. Brummel and 3 others v. The State (PLD 1986 Karachi 390), in which a Division Bench of this Court while dealing with an application under Section 439/561-A, Cr.P. C. Read with section 31 of the Drugs Act, 1976 with prayer for premature acquittal under section 265-K, Cr.P.C. Held that jurisdictions under sections 561-A, 249-A and 265-K, Cr.P.C. Available to the High Court and the trial Courts are co-extensive and concurrent and that remedy available under section 265-K, Cr.P.C., as well as under section 249-A, Cr.P.C. Is as effective as quashment of proceedings under section 561- A, Cr.P.C. It was also held that the proper course was to allow first the trial Court to exercise jurisdiction under section 265-K, Cr.P.C. Or under section 249-A, Cr.P.C. Whichever is available and if the application is dismissed then resort can be had to the remedy available in the High Court.
(ii) Ghulam Samar Awan v. Government of Sind through Home Secretary (PLD 1988 Kar. 414), in which a Division Bench while declining a Constitutional petition observed that the Constitutional jurisdiction is a, discretionary jurisdiction and can be pressed into service to foster cause of justice and for good of public and country at large and that even when an impugned order was illegal, the Court might decline to press into service its Constitutional jurisdiction if doing so would instead of advancing cause of justice or public good would defeat the same.
(iii) Syed Zeeshan Akhtar Zaidi v. The State (1988 PCr.LJ 843), in which a Division Bench of this Court held that the High Court may not be competent to admit an appellant to bail under section 426, Cr.P.C. In respect of the offences pertaining to Banks but as an appellate authority had implied power to grant relief which was ancilliary or incidental to the appeal during the pendency of the appeal on the plea that if the. Court has the power to grant final relief it can also grant an interlocutory relief.
(iv) Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others reported in PLD 1973 Supreme Court 236 in which the following observations were made: "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
(v) A sif Mahmood v. The State reported in 1987 PCr.LJ 896, in which a learned Single Judge of the Lahore High Court acting as a Special Court under the Ordinance acquitted the accused upon an application under section 249-A/265-K, Cr.P.C. By holding that essential ingredient of abetment was missing for which the accused was charged with. Mr. Azizullah K. Shaikh has referred to the following cases:
(i) Loung Khan and 2 others v. Muhammad Jumman and 2 others reported in 1982 PCr.LJ 1039 in which a learned Single Judge of this Court while repelling the contention that the appropriate remedy for the applicant was to move an application under section 249-A, Cr.P.C. And not an application under section 561-A, Cr.P.C. For quashment of the proceedings, quashed the proceedings.
(ii) Mst. Hasina Bano and another v. The State and another reported in 1983 PCr.LJ 132. In the above case the above view was reiterated by the same learned Judge, Z. C. Valiani J.
' Reference may also be made to the case of Abdul Rehman Khan and another v. Haji Mehr Ali and 7 others reported in PLD 1987 Quetta 65, in which a Division Bench of which one of us (Ajmal Mian, C.J.) was a member, allowed a Constitutional petition under Article 199 of the Constitution and declared the proceedings initiated under the Criminal law (Special Provisions) Ordinance 1968 (II of 1968) before a Tribunal, as being without lawful authority.
' Further reference may be made to the following observations in the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan and another, reported in PLD 1971 Supreme Court 677: "If an investigation is launched male fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
7. We may observe that by now it is a well-settled principle of law that when an impugned action or a proceeding is without jurisdiction, the High Court will not decline its Constitutional jurisdiction merely on the ground that an alternate remedy by way of an appeal or revision has been provided under any other law. However, in the instant cases the point in issue is, as to whether we should ask the petitioner to move the Special Court under section 249-A, Cr.P.C. Mr. Fazeel has referred to some of the cases mentioned hereinabove in which the High Court has taken the view that remedy under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. Is no bar to the exercise of Constitutional jurisdiction.
At this stage we may point out that if a criminal proceeding before a Tribunal is ex facie without jurisdiction, the High Court may not insist upon the filing of an application by an accused under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. But if the question whether the proceedings are without jurisdiction cannot be decided without appraisal of the evidence or the meterial placed on record or where the question is whether the facts as alleged in the F.I.R. Or in a direct complaint constitute an offence or not, the High Court will insist upon that the above point should be agitated before the trial Court concerned through an appropriate application either under section 249-A, Cr.P.C. Or 265-K, Cr.P. C. As the case may be or through any other permissible mode.
8. In the instant cases we have already held that the alleged offences are not covered by the definition of scheduled offence and factually it was not the case of respondent No,2 in his statement before the Special Court that any loss was caused to the Bank but his plea was that the loss was caused to him on account of alleged criminal acts/actions on the part of the accused. In our view, keeping in view inter alia provisions contained in sections 7 and 8 of the Ordinance, it will not be just and proper to direct the petitioners to approach the Special Court under section 249-A, Cr.P.C. Or under any other provision. It may be pointed out that above section 7 provides that after a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, such person or any relative of such person or other person on his behalf shall not, without the previous permission in writting of the Special Court, transfer, or create a charge on, any movable or immovable property owned by him or in his possession, while proceedings are pending before the Special Court; and any transfer, or creation of a charge on, such property without such permission shall be void, whereas Section 8 provides that after a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person,
(a) such person shall not, without the permission of the Special. Court, depart from Pakistan until the case has been finally decided by the Special Court; and
(b) no person shall, until the case has been finally decided by the Special Court, employ or engage such person without the permission of the Special Court for any service for the rendering of which any remuneration is payable.
' The contravention of either of the above two provisions entails punishment in the form of rigorous imprisonment for a term upto 3 years and also fine.
9. The effect of taking congnizance by the Special Court in the instant cases is that the above provisions are attracted to and, therefore, it will not be just and proper in the circumstances of the present cases to compel the petitioners to approach the Special Court for the relief when we are of the view that the proceedings before the Special Court are ex facie without jurisdiction.
' The view which we are inclined to take is also in consonance with the principles of interpretation of statutes, which were highlighted by Mr. S.M. Noorul Hassan, learned counsel who had appeared on behalf of Deputy Attorney-General in response to the Court notice, namely, that the Special Tribunal being the creature of the statute cannot travel beyond it and in case a proceeding or order is withoiut jurisdiction, the Constitutional jurisdiction of the High Court can be pressed into service. Furthermore, the Ordinance being the special statute is to be construed strictly and if two interpretations are possible, one which favours the accused should be preferred.
10. We may also observe that we have refrained deliberately not to comment upon the merits of the case with reference to the filing of the civil suits by the parties and in context with the question, whether any criminal liability can be spelt out from the alleged facts as it may prejudice either of the parties and also because it was not necessary for us to go into the above question.
11. We would, therefore, allow the above petitions and declare the proceedings and the impugned orders passed therein as being without lawful authority and of no legal effect and we would quash the same.
' The above petitions stand disposed of in the above terms with no order as to costs.