MAMOON KAZI, J.--- The petitioner No.1 was employed as Incharge of National Savings Centre, Landhi, Karachi. On 19-4-1986 a case under F.I.R. No.15/1986 was registered against the petitioner under sections 420, 468, 471, 477-A and section 34, P.P.C. By F.I.A. And C.B.C., Karachi as it was alleged that co-accused Mohammad Khalid (Petitioner No.2) with the connivance of petitioner No.1 had substituted the name of petitioner No.2 for that of one Abdul Rashid and Tasneem Siraj holders of Account No.SA-2983 and thus misappropriated money deposited by the account-holders by withdrawal of the same through falsification of ledger and other documents. It was alleged that the amount was withdrawn by petitioner No.2.
2. After the petitioners had been challaned before the learned Presiding Officer, Special Court (Offences in Banks), Karachi and evidence of some of the prosecution witnesses had been recorded an application under section 249-A, Cr.P.C. Had been filed on behalf of the petitioners before the learned Presiding Officer who did not dispose of the application immediately but ordered that the same would be considered at the time of arguments. The petitioners were nevertheless aggrieved and therefore, have approached this Court under Article 199 of the Constitution contending that the proceedings before the learned Presiding Officer of the Special Court are illegal for want of jurisdiction.
3, It, is pertinent to point out that during the pendency of this petition, a copy of the order passed by the learned Presiding Officer on the application of the petitioners dated 29-7-1987 has been received wherein the question whether the National Savings Centre where petitioner No.1 is said to be working at the relevant time is a "bank" for the purpose of Ordinance IX of 1984 has been considered. Perusal of the said order indicates that after the learned Presiding Officer had taken a view that the National Savings Centre is not a "bank" for the purposes of Offences in Respect of Banks (Special Courts) (Ordinance No.IX of 1984), it went on to hold that the Federal Government was vested with power to declare the same as a "bank" by virtue of the provisions embodied in section 2(a) (iv) of the said Ordinance. As to the question whether the petitioners had committed any offence, the learned Presiding Officer decided that recording of further evidence was necessary in this regard.
4. Before us the main contention of Mr. Dewan Bashir Ahmed, learned Counsel for the petitioners has been that since the National Savings Centre is not a bank for the purposes of Ordinance IX of 1984 the proceedings before the learned Presiding Officer. Special Court are completely without jurisdiction and the same are liable to be quashed. Reference in this regard has been made to the definition of the term "bank" as the said term has been defined in section 2(a) of the said Ordinance as follows:- "(a) "bank" has the same meaning as in the Banks (Nationalization) Act, 1974 (XIX of 1974), and includes-
(i) a scheduled bank as defined in the State Bank of Pakistan Act, 1956 (XXXIII of 1956);
(ii) the Pakistan Industrial Credit and Investment Corporation, the Investment Corporation, of Pakistan, the National Development Finance Corporation, the Bankers Equity Limited and the National Investment Trust;
(iii) a Government Savings Bank to which the Government Savings Banks Act, 1873 (V of 1873) applies; and
(iv) such other company, institution or body as the Federal Government may, by notification in the official Gazette, declare to be a bank for the purposes of this Ordinance."
As is clear from clause (a) above, reference has been made to the Banks (Nationalization) Act, 1974 (XIX of 1974), it is therefore, necessary to refer to section 3 of the said Ordinance which defines "bank" as under:- "(1) "bank" means--
(a) a company registered under the Companies Act, 1913 (VII of 1913), and transacting, in or outside Pakistan, the business of banking as defined in clause (b) of section 5 of the Banking Companies Ordinance, 1962 (LVII of 1962), in respect of which no proceedings under Part III or Part IV of the said Ordinance have been taken or are pending immediately before the commencing day; and
(b) a banking company incorporated by or under any law within the legislative competence of Parliament, including the State Bank, the National Bank of Pakistan, the Industrial Development Bank of Pakistan and the Agricultural Development Bank of Pakistan, but does not include--
(i) a bank which is an enemy firm within the meaning of the Defence of Pakistan Rules, or
(ii) a banking company incorporated outside Pakistan and transacting banking business in Pakistan, or
(iii) a cooperative bank registered under the Cooperative Societies Act, 1925 (VII of 1925), or any other law for the time being in force relating to cooperative societies, not being a cooperative bank which is a scheduled bank, or
(iv) a Government Savings-Bank to which the Government Savings Bank Act, 1873 (V of 1873), applies, or
(v) a corporation or company owned or controlled by a Province and carrying on banking business only within that Province;"
In view of the reference in clause (i)(a) of section 3 to the "business of banking" as defined in clause
(b) of section 5 of the Banking Companies Ordinance, 1962 it is also pertinent to refer to the said provisions which define banking as follows:- "(b) "banking" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdraw-able by cheque, draft, order or otherwise;"
There is no controversy on the point that the Special Court constituted under Ordinance IX of 1984 has been vested with jurisdiction only to try scheduled offences. The term `schedule offence' has been defined in section 2(d) of the said Ordinance to mean as "an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank" It is also pertinent to refer to section 4(1) of the said Ordinance le which provides that: "(1) Notwithstanding anything contained in the Code the scheduled offences shall be triable exclusively by a Special court."
5. We would like to point out at the very outset that nothing can be spelt out from the provisions of law just reproduced by us in this judgment that National Savings Centre where petitioner No.1 was said to be working falls within the definition of the term "bank". Although Mr. Naimur Rehman has tried to persuade us to hold that the business which the National Savings Centre is transacting brings it within the purview of "banking" as deed in the Berg Companies Ordinance, 1962 but for holding so a finding from us would be required that National Savings Centre is accepting deposits of money from the public for the purpose of lending or investment, repayable on demand or otherwise and withdraw-able by cheque, draft, order or otherwise. It is pertinent to refer to the evidence of Rafiullah who was examined by the learned Presiding Officer as Court's witness No.1 because that gives some indication for what purpose the National Savings Centres have been established in this country. In fact, the evidence of this witness is of material importance for the purposes of determination of the question in issue as no other document has been relied upon either by the petitioners oz the respondents in this regard. Even the learned Presiding Officer himself has placed sole reliance upon the evidence of this witness for determination of the same issue before him. This witness has deposed before the learned Presiding Officer as follows:- "our main business in the National Saving Centre is to sell Government securities against cash or cheques. We do not lend money or do other banking business. Although we have a system of deposit and withdrawal, the deposits are basically for the purposes of purchase of Government securities and withdrawals are allowed not on cheques but on withdrawal slips. If a bank cheque is given to us by any person wishing to buy security or open an account with us, or to make further deposit in his account we do not send the cheque to the clearing house, as we are not members of the clearing house but send the same to our banker, State Bank of Pakistan, which clears the cheque and credits the amount into the account of the Federal Government. The same procedure is adopted when Foreign drafts are deposited with us. After the necessary advice is received from the State Bank, we credit the amount in question into the account of the person in whose favour the draft was issued."
6. Before we advert to the evidence of this witness, we would like to refer to a judgment of Lahore- High Court in the case of The State v. Aizas Ahmad L986 P Cr. L J 561 where a similar question came under examination before Ghazanfar Ali Gondal, J. The learned Judge after considering all the relevant aspects of the case came to a conclusion that National Savings Centre does not fall within the basic clause in the definition of the term "bank" given in section 2(a) of Ordinance IX of 1984.
The relevant observations which appear at page 565 of the report are reproduced as follows: "7. In order to come to a correct conclusion in that regard, it is necessary to find out the functions being performed by National Saving Centres in normal course of their duties. In that connection I examined on 15-9-1985 Mr. Fakhar-ud-Din Siddiqui, Chief Law Officer, Central Directorate of National Savings, Islamabad, who stated that National Saving Centres do receive deposits from the public but do not lend money to members of the public or in other words, they do not accept deposits for the purpose of lending or investment of same. Lending of the money received through deposits or investment of the same in profitable ventures is a distinctive function which distinguishes a bank from other financial institutions. Since National Saving Centres do not perform the basic function of investing of money received by them in deposits from the public, they cannot be said to be transacting the business of banking and are, therefore, not banks. The said witness, Fakhar-ud-Din Siddiqui who being the Law Officer of Central Directorate of National Savings, Islamabad, can be said to be fully aware of the purpose for which National Saving Centres were established, further stated that National Saving Centres were established to execute the schemes floated by the Government. The statement of Fazal Hussain Bismal, National Savings Officer, made before me shows that one of such schemes is the sale of National Prize Bonds of different denominations. It therefore, appears that National Saving Centres were established to execute schemes floated by the Government to promote thrift and savings amongst the masses but were not meant to be banks as it was not a feature of anyone of the schemes of the Government to permit National Saving Centres to invest money received by them from deposit of savings by masses and are not, therefore, banks. Thus the National Saving Centres do not fall within the basic clause in the definition of the bank given in section 2(a) of the Ordinance and are not banks so far as that basic definition is concerned."
7. The learned Presiding Officer of the Special Court while finding himself in agreement with the view taken by Ghazanfar Ali Gondal, J. In the said case has held that National Savings Centre is not a bank for the purpose of the said Ordinance but as has been pointed out earlier he did not go to the extent of fully agreeing with the learned Judge upon the other connected issues.
8. So far, as the issue raised by Mr. Dewan Bashir Ahmed is concerned, we find from the evidence of C.W.1 Rafiullah that the National Savings Centre is not a bank as it cannot be said that it accepts money for the purpose as laid down by section 5 of the Banking Companies ordinance. 1962. We are, however, unable to comprehend how the learned Presiding Officer after having taken the same view continues to assume jurisdiction in the case simply on the ground that a provision exists in section 2 (a) (iv) of Ordinance IX of 1984 whereby the Federal Government is authorized to declare by a notification in the Official Gazette any "such other company, institution or body" to be a bank for the purposes of the said Ordinance. No doubt, such a notification can be issued by the Federal Government and if such a notification is issued, we have no doubt in our mind that the Special Court constituted under the said Ordinance would be vested with jurisdiction to try offences referred to in section 4(1) of the said Ordinance, but until such notification has been issued the Special Court cannot exercise jurisdiction in the matter. Since no such notification has been placed before us not it is the case of the respondents that such a notification has been issued by the Federal Government, we are of the view that the learned Presiding Officer of the Special Court cannot exercise jurisdiction in the matter. Jurisdiction can be exercised By the learned Presiding Officer only in respect of a "scheduled offence" specified in the First Schedule to Ordinance IX of 1984 in case the same is alleged to have been committed in respect of or in connection with the business of a bank. Since as pointed out earlier, the National Savings Centres established by the Federal Government do not fall within the purview of the definition of "bank", the case against the petitioners cannot be tried by the learned Presiding Officer, Special Court.
9. In the result, we accept this petition by holding that the proceedings pending before the learned Presiding Officer, Special Court are without lawful authority and jurisdiction. It may, however, be clarified that the case can be tried by any other Court having jurisdiction in the matter to which the case against the petitioners may be referred by the prosecution.
H.B.T./M-1655/K 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.