The facts bearing on the question of law involved in this application filed under section 561-A, Cr.P.C. May be briefly stated.
2. The respondent No.1 claims to be a member of Rizwan Cooperative Housing Society Ltd., Karachi, duly registered under the Cooperative Societies Act, 1925, who after securing the membership of the said society applied for the allotment of plot of land measuring 240 sq yds. On the prescribed form and' his application in that behalf was accepted and a sum of Rs.9,600 was paid by him in two instalments. On 8-12-1980 necessary allotment order was issued to respondent No.l. It is alleged that the applicants entered into a criminal conspiracy and caused the removal not only of respondent No.1, but of so many other legal members and original allottees of the society by committing forgeries and -manipulations in the record of the society. Accordingly the respondent No.1 filed a direct complaint against the applicants for the offence under section 420/465/468/471, P.P.C. Which was brought on record by A.C.M. Court NoX (East), Karachi, who issued warrants of arrest against them. The applicants who appeared before A.C.M. Court NoX (East), Karachi, made an application under section 249-A, Cr.P.C. Seeking their acquittal for want of jurisdiction, but without success. It V in these circumstances that the applicants have invoked the inherent jurisdiction of this Court with the prayer that the proceedings pending against, them in respect of direct complaint filed by respondent No.1 in the Court of A.C.M. No. X, (East), Karachi'for the offence under section 420/465/468/471, P.P.C. May be quashed.
3. 1 have heard Mr. Habibullah Jatoi, learned counsel for applicants, Mr Ghulam Sarwar Chohan, learned counsel for respondent No.1 and Mr. S.ZA Oureshi, learned counsel for State.
4. The learned counsel for the applicants has confined his arguments to three contentions, viz. That-- (i)the jurisdiction of all the Courts is barred under section 70-A of the Cooperative Societies Act, 1925, and consequently the cognizance taken against applicants by learned A.C.M. Was void ab initio; in view of the bar contained in subsection (3) of section 63 of the Cooperative Societies Act, 1925, no presecution under this Act shall be lodged without the previous sanction of the Registrar, which shall not be given except after serving a notice on the party concerned and giving him a reasonable opportunity of being heard; and (iii)the applicants being the public servants within the meaning of section 21, P.P.C., the learned A.C.M. Had no jurisdiction to try this case, in view of the provisions contained in section 65-B of the Cooperative Societies Act, 1925.
5. On the first question about the ouster of jurisdiction clause (a) of subsection (1) of section 70-A of the Cooperative Societies Act, 1925, is self-explanatory, which for the sake of convenience is reproduced below:-- "(1)Notwithstanding anything provided in any other law for the time being' in force, but save as expressly provided in this Act--- (a)no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a cooperative bank or any other person is empowered 'by or under this Act or the rules or bye-laws framed thereunder, to dispose of or to determine."
6. It is thus apparent that this provision of law operates to oust the jurisdiction of all Courts to entertain or adjudicate upon any matter which the Provincial Government, other authorities and forums indicated therein, are empowered to dispose of or to determine, by or under the Cooperative Societies Act, 1925, or the rules or bye-laws framed thereunder. No such situation exists in this case and the learned counsel for applicants has very little to say on this point.
7. The second contention turns entirely on the construction of subsection (3) of section 63 of the Cooperative Societies Act, 1925, which lays down:-- "No prosecution under this Act shall be lodged without the previous sanction of the Registrar, which shall not be given except after serving a notice on the party concerned and giving him a reasonableopportunity of being heard."
The cases of Khanzada Hidayat Ali Khan v. Mazhar Ali Khan and others reported in 1985 PCr.LJ 2871, and Abdul Sattar v. The State reported in 1987 PCr.1J 344, certainly appear to lend some color to this contention, but in both these cases the provisions of section 60 of the Cooperative Societies Act, 1925, were overlooked, which classifies the offences under the above Act in the following words "60. Offences . --It shall be an offence under this Act if-- (a)Default by a society, officer or member. A society with -a working capital of Rs.50,000 or more an officer or member thereof fails without any reasonable excuse to give any notice, send any return or document, do or allow to be done anything which the society, officer or member is by this Act or rules made thereunder required to give, send, do or allow to be done; or (b)Wilful neglect or default by a society, etc. A society or an officer or a member thereof wilfully neglect-, nr refuses to do any act or to furnish any information required for the purposes of this Act or rules made thereunder by the Registrar or other person duly authorised by him in writing in this behalf; or (c)Wilful furnishing of false information. A society or an officer or member thereof wilfully makes a false return or furnishes false information; or (d)Disobedience of summons, requisition order. Any person wilfully or without any reasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of this Act or rules made thereunder or does not furnish any information lawfully required from him by a person authorised to do so under the provisions of this Act or rules made thereunder."
8. Reading section 60 together with subsection (3) of section 63 of the Cooperative Societies Act, 1925, it is apparent that " the previous sanction of the Registrar" referred to in subsection (3) of section 63 is needed for prosecution of offences under this Act, viz. Offences as classified under 1B section 60, reproduced above and under sections 61 and 62 of the Cooperative Societies Act, 1925, and not in respect of other offences. Thisview. Gets support from a recent decision of Division Bench of this Court dated 9--8-1989 in the case of Sindhi Cooperative Housing Society Ltd., Sukkur v. The Superintendent of Police Anti-Corruption Establishment, Sukkur and another (C.P. No.1696 of 1987), wherein it was held:-- 'The above section 63 is provided in Chapter 9 of the Act which has the caption "Offences". Sections 60, 61 and 62 provided the offences under the Act. If we were to read section 63 with the above sections preceding and if we take into consideration the words 'No prosecution under this Act' used in subsection (3) and also the expression in subsection (1) 'Any offences under this Act,' it becomes evident that the sanction is required only in respect of those offences before lodging the prosecution, which are provided for in the Act. The above two judgments relied upon by the learned counsel for the petitioners has not dilated upon this aspect. There is no discussion as to the effect of the above section 60 to section 62 and the words 'under this Act used in subsection (1) - and subsection (3) of section 63."
9. A case which is on all fours with the present case, is Hamdard Cooperative Society v.
Government of Sindh and others, reported in 199( MLD 1060, decided by a Division Bench of this Court, of which I was also member, where it was held that:-- "The bar contained in subsection (3) of section 63 of the Cooperative Societies Act has no bearing on the present case as it shows that words dprosecution under this Act' are the pertinent words.
This section has to be read with section 60 of the same Act which in clauses (a) to (d) defines the 'offences under the Act'."
10. Having regard to the above legal position, I am of the view that the contention of learned counsel for applicants about the previous sanction of the Registrar is devoid of any force.
11. It is ft third contention urged by Mr. Jatoi, learned counsel for applicants that has great force.
Section 65-B of the Cooperative Societies Act, 1925, which was added by Cooperative Societies (Second Amendment) Ordinance, 1966, provided as follows:-- "Officers of s eties to be public servant .--Every officer of a Society, including Cooperative Bank, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code, 1860 (XLV of 1860)."
The word ' "Officer" as defined by section 3(d) of the Cooperative Societies Act, 1925 ' includes a Chairman, Secretary, Treasurer, Member of Committee or other person empowered under the rules or under the bye-laws of a society to give directions in regard to the business of such society.
Admittedly Mubarak Hussain Siddiqui, the applicant No.1 is the chairman and Saadat Ali Ashraf the applicant No.2, is the Secretary of Rizwan Co-operative Housing Society, Karachi. They are, therefore, officers within the meanings of section 65-B of the Cooperative Societies Act, 1925, and are thus public servants. The allegations made against them are in respect of the working of the society and they are said to have abused their official position. The applicants being the public servants within the meanings of section 21, P.P.Ccan only be prosecuted before a Special. Judge, Anti-Corruption in respect of the offences specified in the Schedule. All the offences for which the applicants are prosecuted are specified in the Schedule and consequently the cognizance taken by A.C.M. Court NoX (East), Karachi, against the applicants for a scheduled offence was without jurisdiction. The cases reported as The State v.
Abdul Raheem Khan and others (PLD 1988 Lahore 802), and Hamdard Cooperative Society v.
Government of Sindh and others 1990 M LD 1060, lend support to this view. In the former citation a learned Single Judge of Lahore High Court observed as follows:-- "Viewed in the light of the aforementioned principles and the dictionary meaning of the word 'officer', it is quite evident that the respondents Nos. 3 to 5 who at the relevant time held the posts of the Accounts Clerks and Cashier in the Cooperative Bank fell within the ordinary meaning of the term 'officer' and can therefore, be considered as officers for the purposes of section 65-B by virtue whereof they are deemed to be public servants within the meaning of section 21, P.P.C. That being so, case was triable exclusively by a Special Judge appointed under the Criminal Law Amendment Act,' 1958 as most of the offences for which the respondents were challaned are specified in the schedule. The Magistrate before whom the case is now pending was not competent to take cognizance thereof.
Upshot of the above discussion is that the cognizance taken and the proceedings held by the trial Magistrate in the case against the respondents are declared to be without lawful authority and of no legal effect and it is directed that the learned trial Magistrate shall forthwith transmit the said case pending before him to the Special Judge, Anti--Corruption (Provincial) having territorial jurisdiction in the matter who shall proceed to decide it according to law."
12. In the latter citation a Division Bench of this Court considered this aspect of the case and observed as follows:-- "We have given anxious consideration to the submissions of the learned counsel. It is obvious from the plain reading of section 65-B of the Cooperative Societies Act that the officers of the society are public servants and therefore any act of corruption or misappropriation by them would fall within the ambit of section 5 of the Prevention of Corruption Act, 1947 (Act 11 of 1947)."
13. This being so, the continuation of proceedings against applicants in, the Court of A.C.M. No.X
(East) Karachi, in respect of a scheduled offence is an abuse of the process of law. The application made under section 561-A, I D Cr.P.C. Is, therefore, accepted and the proceedings pending against the applicants in the said Court are hereby quashed.
14. This order will, however, not operate as a bar in respect of the prosecution of applicants, if any, before the Court of competent jurisdiction.
N.H.O./M-1581/K.
1992 M. Osman v. Tajamul Hussain (Mukhtar Ahmed Junejo, J)