1. CH. MUSHTAQ AHMAD KHAN, J.- Property No.11 /15-A, of Shami Road, Lahore Cantt was owned and possessed by Mrs. Tahmina Bashir wife of Bashir Ahmad, who is the petitioner before this court.
2. National Bank of Pakistan, Sunny View Branch, Lahore sanctioned a cash finance limit of Rs. 1.200 million and 1/C facility of Rs.2.000 million in the name of M/s. Paradise Trading Company, owned by Bashir Ahmed husband of the petitioner, which facility was availed of by him, repayment whereof was guaranteed by the petitioner by creation of equitable mortgage in favour of bank as a surety.
3. A memorandum of deposit of title deed in favour of the bank was also executed. However, the original title deeds were not deposited with the bank for the reason that the same had been lost.
4. Subsequently vide sale deed dated 24.4.1991 the petitioner sold the afore-mentioned property without mentioning the factum of equitable mortgage in favour of the bank in the sale deed. The bank filed a suit for recovery of dues against the principal as well as the petitioner. The suit has been decreed and execution proceedings are pending before the court of competent jurisdiction.
5. During the pendency of execution proceedings an objection petition was filed by Muhammad Yasin and Muhammad Nadeem sons of Haji Muhammad Rafique, the purchasers of the property claiming therein that they had no knowledge of the creation equitable mortgage, therefore, the property is not liable to be proceeded against in execution of the decree passed in favour of the bank. On the basis of an authority letter executed by attorney of the bank, the respondent has lodged a complaint against the petitioner under the provisions of Section 7 of the Banking Tribunal Ordinance, 1984, wherein she has been summoned as an accused person. The petitioner filed an application under Section 265-K Cr.P.C, seeking her acquittal on the ground that she being surety cannot be proceeded under the provisions of Section 7 of the Banking Tribunal Ordinance, 1984.
6. This application has been contested and dismissed by the Banking Tribunal vide order dated 22.12.1993. This order as well as the continuance of the proceedings in the complaint/case referred to above have been challenged through this Constitutional Petition, with a prayer for quashment thereof.
2. M/s Kh. Arshad Mubeen Anwari and Rao Munawar Khan, Advocates, have appeared on behalf of the petitioner whereas Kh. Muhammad Faruq Advocate, has appeared on behalf of the respondent No. 1. None has appeared on behalf of respondent No.2 which is a tribunal wherein the proceedings are pending. Learned counsel for petitioner have contended that the complaint has been lodged by an un-authorised person; that the petitioner cannot be proceeded against under Section 7 of Banking Ordinance, 1984 as she is not a loan and that the bank having suffered no loss in view of the principle that the mortgage is a charge over the property and goes with the same even if it is alienated and there being no mensrea the complaint cannot proceed hence the impugned order passed by the learned Banking Tribunal Lahore is illegal and is liable to be set aside and the proceedings in the complaint case are liable to be quashed. On the other hand Kh. Muhammad Faruq, Advocate, learned counsel for respondent No.1 has contended that the attorney of the bank who had the authority to further delegate his authority to institute a complaint against the petitioner, had authorised respondent No.1 to lodge a complaint against her, therefore, it cannot be said that the complaint has been lodged by an unauthorised person; that the provisions of Section 7 covered both the. Loanee as well as the guarantor as in case it is held that the guarantor is not criminally liable it will bring propsterous results and that criminal intention of the petitioner is clearly established in this case as at the very out set she has sworn an affidavit to the effect that the original documents have been lost, therefore proceedings in the complaint case can be continued and the order challenged in this writ petition is un-exceptionable.
3. We have considered the arguments addressed by the learned counsel for the parties and have perused the record. It is an established and admitted legal proposition that a mortgage of an immovable property goes with the same inspire of alienation therefore it cannot be said that the bank will suffer any financial loss inasmuch as the property under mortgage shall be liable to be proceeded against for the satisfaction of the decree which has been passed in favour of the bank.
7. Provisions of Section 7 of Banking Ordinance, which are reproduced as under: "7. Provisions relating to certain offences. (1) Whoever intentionally destroys or removes or reduces the value of the property on the security of which finance was provided to him, or, without the prior approval in writing of the banking company which provided finance, transfers such property or any part, thereof otherwise than in accordance with the terms of approval shall, without prejudice to any other action which may be taken against him under this Ordinance or ,any other law for the time being in force, be punishable with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine and shall be ordered by the Banking Tribunal trying the offence to deliver up or refund, within a time to be fixed by the Banking Tribunal, the property or the value of the property so destroyed, removed or reduced in value or transferred as the case may be.
(2) All offences under this Ordinance shall be bailable, non- cognizable and compoundable.
(3) Where the person guilty of an offence under this Ordinance is a company or other body corporate, the chief executive by whatever name called, and every director, other than a non- executive director, manager, secretary and other officer thereof shall, unless he proviso that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly." clearly show that the same apply to a loanee alone. The word whoever and him, which have been underlined by us clearly show that the criminal liability is of that the loanee and not that of surety.
8. Established principle of interpretation of statutes are that the language of the statute is to be read as. It is and the courts cannot add or substract a word therein, if the argument of the learned counsel for the respondent is accepted then while interpreting the word "him" it shall have to be read to include the surety who definitely does not fall within definition of loanee. Wording of the section is very clear and the legislation appears to be conscious enough not to burden the surety with a criminal liability for the obvious reason that the banking business has to be conducted for the benefit and with the connivance of the people. If a surety is also held criminally liable then perhaps it may become almost impossible for a loanee to procure a surety, therefore legislature has not made a surety liable to criminal prosecution hence a surety/guarantor cannot be prosecuted under the provisions of Section 7 of the Banking Tribunal Ordinance, 1984.
9. Argument of the learned counsel for the respondent to the effect that the complaint has been filed by an authorised person is also not free from doubt. Under the law a delegate authority cannot be further delegated, therefore even if in the original power of attorney given by the bank power of delegation of authority is there, delegation of power to prosecute a person under section 7 of the Banking Tribunal Ordinance, 1984, cannot be spelt out therefrom, as the same is a very serious exercise of power which effects a third person who is not a party to the deed of power of attorney.
10. Therefore, we hold that the complaint lodged by respondent No. 1 against the petitioner, the proceedings being held on the basis thereof, the order of dismissal of the application under Section 265-K Cr.P.C, passed by the learned trial court are illegal and are without a lawful authority, hence we set aside the same and direct quashment of proceedings and acquittal of the petitioner. This order shall be read as a part and in continuance of the short order dated 22.11.1994 passed by us whereby the writ petition had been ordered to be accepted.