A. HABIB AHMED vs M. K. G. SCOTT CHRISTIAN And 5 Other

1. MUHAMMAD AFZAL ZULLAH, CJ.--These two appeals through leave of the Court have arisen in the following circumstances noted in the leave grant order: Both these petitions (appeals) are directed against the common judgment of Sindh High Court dated 21-9-1988, whereby the order of the Presiding Officer, Special Court of Sindh (Banks), Karachi, respondent 6 herein, dated 2-6-1988, taking cognizance of the offences under sections 403, 406, 409/149, P.P.C. On a direct complaint filed by petitioner (appellant) against respondents 1 to 5 herein was quashed. The facts stated and the allegations made by petitioner (appellant) in the direct complaint against' respondents briefly stated are as under:- "Petitioner (appellant) is a Director of the Boots Company (Pakistan) Limited, hereinafter referred to as `Company', and maintains two accounts with Hongkong and Shanghai Banking Corporation, Shaheen Complex, M.R. Kayani Road, Karachi (hereinafter referred to as `Bank'). For the purpose of availing of an overdraft facility, he pledged 2,98,600 shares of the Company with the Bank. On 28-1- 1987, he received two letters from the Bank asking him to adjust the outstanding dues within ten days failing which the Bank would `be constrained to start selling of the securities pledged'.

2. According to petitioner (appellant) he went to see Bank's representative on the following day and explained certain temporary difficulties faced by him and the Bank considered his request for 30 days' extension sympathetically in view of the extensive dealings with him in the past, and agreed to take no action for the time being. He again went to the Bank on 31-1-1987 and made an offer that he was willing to authorise the Bank to collect dividend on the shares provided time for adjustment of the outstanding dues was extended. The Bank accepted his offer and he signed a letter of authority in this behalf which was prepared by the Bank. On or about 6-5-1987 the Company announced 30% dividend on the shares and petitioner's (appellant's) letter of authorization was forwarded for collection of the dividends by the Bank. According to petitioner (appellant) however, he was greatly surprised to know on 18-5-1987 that the Manager of the Bank, respondent 1, had secretly and surreptitiously sold his shares at the rate of Rs.55 per share to respondents 3 and 4, who are stock-exchange, brokers, as against his purchase price of Rs.130 per share and Rs.92 per share on 6-5-1987; thus resulting in the wrongful loss of Rs.11,048,200 and a further loss of 30% dividend.

3. On receipt of the complaint, respondent 6 registered the case and issued bailable warrants in the sum of Rs.10,000 against each of respondents 1 to 5. It was against this order that petitioner (appellant) Filed the Constitution Petition which was allowed by the impugned judgment.

4. In support of the petitions (appeals) it was urged in the High Court that the proceedings before the Special Court were wholly without jurisdiction as the subject-matter of the complaint is not a scheduled offence as-defined by section 2 (d) of Offences in Respect of Banks (Special Courts)

5. Ordinance No.IX of 1984. It was further submitted that since the proceedings before the Special Court are without jurisdiction it was not obligatory to seek relief under the provisions of section 249-A or 265-K of the Code of Criminal Procedure. `On the other hand, it was urged on behalf of the petitioner (appellant) that since by sale of the shares at lower price on account of manipulation and conspiracy on the part of the Bank Manager, the stock exchange broker and the purchasers, the respondents 1 to 5, the Bank has suffered loss in so much as it could not recover its full dues from the sale proceeds and also to recover further amount in the form of dividends, the offence squarely falls within the ambit of a scheduled offence as defined by section 2 (d) of the Ordinance. It was also pointed out that the first plea raised in support of the Constitution Petition could very well be urged before the trial Court by alternative remedy provided by section 219-A of the Code and the Constitution Petition was therefore not competent. It was further pointed out that it was also open to the respondents 1 to 5 to request the trial Court to resort to course of action under section 4 (6) of the Ordinance to consider if the alleged offences, if any, fall within the definition of scheduled offences and take action accordingly.

6. Learned Judges of the Division Bench who heard the Constitution Petition referred to the provisions of section 2 (d) of the Ordinance which read as follows:- "2 (d). `Scheduled offence' means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank."

7. Learned Judges rightly observed that since the offences mentioned in the direct complaint find place in the First Schedule of the Ordinance, the only question that requires consideration is whether an offence in respect of or in connection with the business of Bank was disclosed from the direct complaint filed by the petitioner (appellant). With regard to this question, learned Judges observed as under: "We rind 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 .... .... .... 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 the balance loan amount on alee 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 arc 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 trot seem to be to provide any relief to an individual who may be aggrieved by an action of a bank employee. In the instant case, 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.

8. 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."

9. Having held above, learned Judges further held that it will not be just and proper to direct the accused to approach the Special Court under section 249-A of the Code or under any other provisions, and for these reasons they quashed the impugned order of respondent 6, and allowed the petition.

10. Mr. Khalid Anwar, learned counsel appearing in support of the petitions submits that the learned Judges of the High Court have erred in placing a very narrow interpretation of section 2 (d) by limiting it only to cases iii which loss is caused to a bank. He urged that the mischief of this section is equally attracted if by the commission of a scheduled offence, loss is caused to a customer of the bank, for, it amounts to an offence committed in connection with the business of the bank. In this behalf, learned counsel submits that advancement of loans against security of shares is a legitimate business of a. Bank and, therefore, surreptitious sales of the security affect the business of a bank and as such attracts the mischief of section 2 (d).

11. Learned counsel further submits that the learned Judges have erred in law by holding that the combined effect of section 2 (d) and section 4 (6) is to compensate the bank for the loss caused to it by the offence and it does not provide any relief to the individual who may be aggrieved by an action of the bank employee. Learned counsel submits that a scheduled offence committed by an employee during the course of the employment of the bank and to defraud the account-holder as well as the bank with the result that the bank cannot get the money/due amounts to an offence in the meaning of section 2 (d) of the Ordinance.

12. Learned counsel further urged that the learned Judges in the High Court were wrongly impressed by the fact that the bank has not come forward with the allegation that its Manager has caused any loss to it in the transactions in question. He pointed out that in this foreign bank, respondent 1 was the sole incharge, and he being the main accused in the fraudulent transaction would not come forward and involve himself.

13. Learned counsel further argued that the learned Judges have also erred in relying upon the wording of the preamble of the Ordinance when reference, to it was totally unnecessary in view of the clear language of the sections of the Ordinance in question.

14. Learned counsel also contended that the learned Judges in the High Court were not justified in exercising Constitutional jurisdiction at a premature stage of the case, when just a process under the law was issued by respondent 6 after taking a legitimate view of the contents of the complaint filed by the petitioner (appellant). In this connection, learned counsel also argued that since alternative remedies under sections 249-A and ,265-K were available to. Respondents 1 to 5, resort to the Constitutional remedy by them was totally precluded. He also highlighted this argument by referring to provisions of subsection (6) of section 4 of the Ordinance, which according to him, were not considered by the High Court at all.

15. These submissions, amongst others, deserved consideration.

16. The High Court noted the following main points for consideration advanced by the learned counsel for the parties.

17. Appellant's side:

(i) That since by depositing 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 purchasers, the bank has suffered loss inasmuch as it could not recover its full due 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 case by. Magistrate, a party 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 were 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 fall within the definition of scheduled offence.

18. Respondents' side:

(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.

19. In addition to the aforestated two points from the respondents' side, all those points which have already been noticed as having prevailed with the. High Court would also be presumed to have been advanced from that side. Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is: whether, the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special of inherent jurisdiction -- the writ' jurisdiction under Article 199 of the Constitution is one of them. The basic rule was laid down by this Court in the well known case of Ghulam Muhammad v.

20. Muzammal Khan PLD 1967 SC 317 and it was ruled that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "honourably acquitted by a competent Court". On the other hand if the evidence against the accused discloses a prima facie case then ' jusctice clearly requires that the trial should proceed according to law". It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., it was held can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute:'

21. Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561-A, Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law.

22. The aforestated view and principle was reiterated by the Supreme Court in other cases as well, which came before it through the jurisdiction of. The High Court other than section 561-A, Cr.P.C.

23. They included revisional and writ jurisdictions. See Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Abdul Aleem v. Special Judge (Customs), Lahore 1982 SCM R 73. The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused: A criminal revision filed by him having been dismissed he sought relief for quashment of the criminal case through a Writ Petition and the same had to be dismissed mainly on the ground that the High Court would not "in its discretionary- jurisdiction short circuit the normal procedure of trial as provided by law." This Court refused to grant leave to appeal. It was observed as follows:- "We are of the view that the approach of the learned Single Judge in the High Court in refusing to deflect the normal course of a criminal case through exercise of writ jurisdiction is not only salutary but also in accord with the principles laid down by this Court in Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317, although the case dealt with therein In a very recent case which had arisen out of the same law relating to Offences in Respect of Banks (Special Courts) this Court again emphasized the same principle. See Muhammad Aslam v. The State 1991 SCMR 600, para.26.

24. All the points which have been noted above are such which the Special Court (Banks) could have decided and if it would have decided them the subject-matter involved herein fell within its jurisdiction. This decision by itself would not have been without jurisdiction because if such decision is wrong it does not mean that it is necessarily without jurisdiction. In this particular case there is an additional support for this view: namely, that section 4 (6) of the Ordinance, (No.IX of 1984) provides that in the course of the trial before the* Special Court if it is of the 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 a scheduled offence. Therefore, if the Special Court would have been allowed by the High Court, without interrupting the normal course of the case, to proceed with it, there was no bar to the respondents to have invoked the power under subsection (6) of section 4 to seek the same remedy from the trial Court as was sought from the High Court. The difference would have been only this that in that eventuality it would have taken few weeks or at the most few months; while in the present situation where the normal course has been deflected by the High Court the time that has already been consumed is about 4 years. Such like inherent and consequential elements in the interference by the High Court, as has been demonstrated in this very case, instead of advancing the course of justice sometimes prove counter productive.

25. It is often said that if a Court has no jurisdiction it is better for the I High Court to. Interfere in its extraordinary jurisdiction to provide swift and efficacious remedy. Experience has shown and it has now been recorded as opinion in a large number of cases, that in practice even if it was so few decades ago, it is no more so in the present circumstances. See a very recent judgment of this Court on this very issue. Messrs English Boot Shoes Ltd. v. Collector, Central Excise and Land Customs (Civil Appeal No.344-K of 1986,, decided on 24-12-1991).

26. On this legal point alone, therefore, these appeals must succeed.

27. But the matter would not end here. The case has taken a different complexion. It is not appropriate now to end the matter by the afore-rendered decision. In the impugned judgment in addition to the expression of views the High Court on facts and merits of .The case, has also held that the offence alleged in this case is not a scheduled offence. Arguments were also addressed before us on this question, hence we proceed to decide it so as to save the parties from further delay and expense.

28. The definition of scheduled offence as contained in section 2 (d) of the Ordinance does include a rider to be to the offences which are mentioned in the schedule and which undoubtedly are alleged in this case. The rider is that those offences should have been alleged to have been committed "in respect of or in connection with the business of bank". It needs to be emphasized that the expression "business of a bank" used in the definition would have to be given extended meaning on account of the use of two such further open ended expressions which connote very wide meaning for the words "business" and the "Bank". These are "in respect of or "in connection with". The scrutiny of the meanings of these words and expressions in the classical sources together with the modern usages and scope of Banking business, leave absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word "Business" as separate from the word "Bank". Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this. Banking activities both with regard to the depositors dealings as well as' dealings in trading and other enterprises are their business. There is no need to dilate upon the scope of the expressions "in respect of and "in connection with" any further.

29. In the light of what has been stated about the definition, in this case the allegations made against the accused undoubtedly involved the business of the bank more directly than by invoking aid from the expression "in respect of or "in connection with". With respect, the approach of the High Court to find loss, compensation and other similar elements connected with the complainant, accused or the bank, would amount to reading much more in the definition itself than is justified either by the language used therein 'or even by the intendment underlying the same. The intention being that ail conceivable situations, linked with the business of the bank, would make the offences mentioned in the schedule as scheduled offences. Thus to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Courts (Banks). That being so, there is no alternative but to hold that the offences alleged in this case against the accused were scheduled offences.

30. There are other questions in this case which the High Court undoubtedly has decided but we would refrain from making any comment thereon as according to our findings the interference by the High Court in its writ jurisdiction not being justified the case has yet to be tried by the Special Court.

31. Not only this it has been stated that the subject-matter of this dispute is' pending adjudication before a Civil Court as well. We would, therefore, observe that except for the decision on the questions of the jurisdiction of the High Court under Article 199 of the Constitution and the jurisdiction of the Special Court regarding scheduled offences none of the other findings and observations shall influence the course of trial of the cases before the Civil and Criminal Courts.

32. There is yet another point to be dealt with. During the hearing of these appeals, it came to light, as above, that the civil suit dealing with the same subject-matter is still pending. We asked the learned counsel for the' appellants to address arguments on the point; whether, in accordance with. The ordinary rule laid down by this Court that in such like situation the proceedings in the Criminal Court would remain stayed till the decision of the Civil Court, should not be followed he had not much to say to oppose this procedure. See the case of Abdul Haleem v. The State (1982 SCM R 988) wherein this rule was also followed. ; ; "

33. In the light of the foregoing discussion we allow these appeals, set aside the impugned judgments and direct that the accused/respondents shall be tried by the Special Courts (Banks) for Offences under the Banks (Special Courts) Ordinance IX of 1984. It is further directed that the proceedings f before the said Court shall remain stayed till the decision of the civil matter, the information regarding which decision, would be laid before the Criminal Court by the parties concerned including the appellants.