JUDGMENT MALIK MUHAMMAD qayyum, J.- Mr. Tajjamal Hussain, a former Chairman/Managing Director of the Bank of Punjab and his son Iftikhar Hussain have come in appeal against the judgment and order of a learned single Judge of this Court dated 8.10.1995 dismissing writ petition No. 12687/95 filed by appellant No. 1 in which he had inter alia sought quashment of FIR No. 10/95 registered at Police Station FIA (S.I.U.), Islamabad, under sections 409,420, 468,471, 477-A and 109, P.P.C, read with section 5(2) of the Prevention of Corruption Act, 1947.
2. A preliminary objection as to the maintainability of this appeal has been raised by the learned Deputy Attorney General and Mr. M. Saleem Sahgal, Advocate for respondents No.4 & 5 on the strength of proviso to sub-section (2) of section 3 of the Law Reforms Act, 1972 which we would like to dispose of at the outset.
3. Both, the learned Deputy Attorney-General and Mr. M. Saleem Sahgal, Advocate have argued that the Constitutional petition before the learned single Judge arose out of proceedings under the Criminal Procedure Code which provides for appeal and revision and as such this appeal is not maintainable. They have further submitted that, in any case, as Mr. Tajjamal Hussain is in custody pursuant to an order of remand passed by a learned Magistrate which has been held to be a judicial order and, therefore revisable, this appeal does not lie.
4. The learned counsel for the appellants has, on the other hand, contended that in the Constitutional petition, appellant No. 1 had sought quashment of the FIR and no appeal or revision lies against the order fo; registration of case and as such the appeal is not hit by proviso to sub- section (2) of section 3 of the Law Reforms Act, 1972.
5. Having heard the learned counsel for the parties we do not find any merit in the objection raised by the learned Deputy Attorney-General and Mr. M. Saleem Sahgal, Advocate. It may be true that in a way Constitutional petition had arisen out of proceedings under the Criminal Procedure Code but a reference to proviso to sub-section (2) of section 3 of the Law Reforms Act, 1972 would show that the bar confined therein is not attracted merely for the reason that the law out of which the proceedings have arisen provides for an appeal or revision. On the other hand, in order to take away the right of appeal it has also to be shown that the original order in the proceedings was appealable and revisable. There cannot be any dispute and indeed it has not been argued by the learned counsel for the respondents that order or the act of registration of a case under the Criminal Procedure Code is neither appealable or revisable. Consequently the mere fact that against certain other orders which were not under challenge before the learned single Judge, an appeal and revision is provided by the Code of Criminal Procedure, cannot take away the right of appeal against the order of the learned single Judge of this Court.
6. As to the other contention of the respondents that as appellant No. 2 is in custody under order of remand the acceptance of this Constitutional petition would amount to set aside that order which is revisable. We must state that the argument is some what far-fetched and involved. At the time when the Constitutional petition was filed there was no such order in existence. Be that as it may, the appellants have challenged the act of the registration of a case against which no appeal or revision lies and not the order of remand which in fact was passed subsequent to filing of the Constitutional petition. Reliance of Mr. M. Saleem Sahgal Advocate on the two cases cited by him Mst. Karam Bibi and others v. Hussain Baksh and another (P.L.D.1984 S.C. 344) and Muhammad Abdullah v. Deputy Settlement Commissioner. Centre-I, Lahore (PLD 1985 S.C. 107) is of no help to him as in those cases the position was converse and exactly the opposite as those the Constitutional petitions were directed against the order passed subsequent to the original order of allotment and it was in the context ruled that notwithstanding that in the Constitutional petition, subsequent order was assailed, the original order in the proceedings remains to be the order by which the property was transferred. In this view of the matter we have no hesitation in repelling the preliminary objection raised by the learned counsel for the respondents.
7. Coming now to the mrits, the arguments in this case were heard on many dates. The learned counsel for the appellants as also the learned Deputy Attorney-General for Pakistan and Mr. M.
Saleem Sahgal, Advocate agreed that instead of formally admitting the appeal and disposing it of, their contentions on the whole case may be heard and the appeal may either be accepted or dismissed, as the case may be.
8. Initially Dr. A. Basit, learned counsel for the appellants raised some contentions as were pressed into service before the learned single Judge which may be summed up as follows:-
(i) That the F.I.A, had no jurisdiction to register any case against the appellant No. 2 inasmuch as at the relevant time the Bank of Punjab was purely a Provincial Bank functioning within the territorial limits of the Province of Punjab and, therefore, the executive authority of the Federation does not extend to any act done in connection with the affairs of the Bank of Punjab, by appellant No.2.
(ii) That in any case by virtue of section 26 of the Bank of Punjab Act, 1989 (which is in para materia with section 18 of the Banks (Nationalisation) Act, 1974)), appellant No.2 enjoyed immunity from prosecution and as such no case would be registered against him at least without first holding an inquiry and determining that he had not acted in good faith.
(iii) That the allegations made in the FIR itself does not constitute any offence.
9. However, today the learned counsel for the appellants stated that keeping in view the fact that the case already stands registered by the Federal Investigation Agency and appellant No.2 has been remanded to judicial custody after having remain in the police custody for 11 days, the issues formulated above may not be alive and, therefore, he would like to argue only that the trial of the appellant No. 2 before the Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 would not be justified and that the respondents be directed to submit challan against appellant No.2 in this Court in terms of section 84 of the Banking Companies Ordinance, 1962 without any further delay. He, however, submitted that the other points raised by him in the case may also be decided for the purpose of any future case which may be lodged against appellant No. 2. We, however, indicated to the learned counsel that this Court is not required to decide the issues which may have become academic in nature only for future guidance and, therefore, we were not called upon to render any decision thereon. But at a later stage during the course of arguments the learned counsel again tried to raise those issues which according to his own statement were no longer alive.
When confronted with the statement made by him he submitted that he may have been mis- understood as he never instended to give up any of the point. Although the statement made by the learned counsel was clear and explicit yet we in the interest of justice allowed the learned counsel to re-agitate those points also.
10. The submissions made by the learned counsel are the same as were raised by him and were repelled by the learned single Judge in his detailed and elaborate judgment and order. It was held that there is nothing in the Bank of Punjab Act, 1989 which debars the Bank from setting up a Branch outside the Province of Punjab and as Branches have already been established by the Bank of Punjab in Islamabad and other Provinces, it cannot be said that the Bank was purely a Provincial Bank. The learned single Judge further observed that the Bank of Punjab is a scheduled Bank under the State Bank of Pakistan Act, 1956 and is under the control and supervision of the State Bank of Pakistan and for that reason also it cannot be said that the executive authority of the Federation does not extend to it. It was observed that the offences of which appellant No. 2 is accused were scheduled offences under the Federal Investigation Agency Act, 1974 and the Bank of Punjab being a scheduled Bank, the Federal Investigation Agency could register FIR and investigate the case. The contention that in view of section 84 of the Banking Companies Ordinance, 1962, it was only this Court, on a complaint made by the State Bank of Pakistan, which can take cognizance of the case, was repelled by observing that what is prohibited by section 84 is the cognizance by any other Court in respect of offences falling under section 83(1) of the Act and not registration of a case or its investigation and that too in respect of offences under another law. The learned single Judge declined to go into the question as to whether the allegations against appellant No. 2 in the FIR were correct or not by observing that he was not called upon to express any opinion on merits as that would prejudice the case during the trial.
11. The first objection which has been raised by the learned counsel for the appellants in this appeal is as regards the powers of the Federal Investigation Agency to register the case against appellant No.2 in respect of his acts and omissions as Chairman/Managing Director of the Bank of Punjab. It has been urged that the learned single Judge was in error in holding that as the offences of which appellant No. 2 was accused were scheduled offences within the meaning of Federal Investigation Agency Act, 1974 a case could be registered by the F.I.A. He elaborated that the F.I.A, being a Federal Agency, it can only operate and take action in respect of offences which concern the Federation or the Federal Government and cannot interfere in other matters which under the Constitution fall within the exclusive domain of the Province. The learned counsel referred to entries No.28 and 31 of the 4th Schedule to the Constitution to submit that these entries specifically take away power of the Parliament to legislate in respect of a Banking Corporation operating exclusively in a particular Province. He pointed out that under Articles 97 and 137 of the Constitution of Islamic Republic of Pakistan, 1973 the executive authority of the Federation extends only to those matters which fall within the legislative competence of the Parliament and as Parliament cannot legislate with respect to Bank of Punjab, the Federal Government or any of its Agency cannot take away any action in respect thereto.
12. The learned Deputy Attorney-General for Pakistan and Mr. M. Saleem Sahgal, Advocate, on the other hand, have contended that as the allegations in the FIR attract those offences which fall in the Schedule to the Federal Investigation Agency Act, 1974, the F.I.A, has jurisdiction to register the case and investigate it. Mr. M. Saleem Sahgal, Advocate further maintained that entries No.28 and 31 have no relevance in the present case which relate to registration of a case in respect of offences committed by appellant No.2 and this matter more appropriately relates to the administration of criminal justice and is covered by entries No.1 & 2 of the Concurrent List about which the Parliament can surely legislate.
3. Having given our consideration to the contentions of the learned counsel for the parties, we are not persuaded to agree with the wide interpretation being placed by the learned Deputy Attorney- General and Mr. M. Saleem Sahgal, Advocate on the provisions of Federal Investigation Agency Act, 1974 that in respect of offences falling within the Schedule to the aforesaid Act, the Agency set up under the Act has the jurisdiction and power to investigate and register a case notwithstanding that the Federal Government may not be connected with the dispute. If such an interpretation is accepted, it would lead to various anomalies pointed out by the learned counsel for the appellants which need not be discussed in detail for, the intention for which the Federal Investigation Agency was set up is clearly spelt out in the Preamble to the Act itself which reads as under:- "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and for matters connected therewith."
14. From a reading of the above, it becomes obvious that the object in framing the law was to set up an Investigating Agency to investigate into the offences committed in connection with matters concerning the Federal Government and matters connected therewith. Although it is true, as has been contended by the learned counsel for the respondents that the preamble is not an operative part of the Statute but nevertheless it is now well established that the preamble does provide a useful guide for finding out the intention of the Legislature and cannot, therefore, be ignored while interpreting the law. (See The Murree Brewery Go. Ltd. V. Pakistan through The Secretary to Govt, of Pakistan, etc. (P.L.D. 1972 S. C. 279), Muhammad Hussain Patel v. Gaffar Wali Muhammad and others (P.L.D. 1972 Karachi 421) and Syed Akhlaque Hussain v. Habib Ismail Bajwa (P.L.D. 1969 Lah. 563). We, therefore, agree with Dr. A. Basit, Advocate that there must be some nexus even though remote and indirect, between the acts complaint of and the Federal Government in order to attract jurisdiction of the F. I.A.
15. This conclusion, however, does not advance the case of the appellants for, in the present case for various reasons which have been noted by the learned single Judge it cannot be held that the Federal Government is in no way concerned with the matter.
It is a common ground between the parties that on an application made by the Bank of Punjab it was declared to be a scheduled Bank by the State Bank of Pakistan under the State Bank of Pakistan Act, 1956 which is a Federal Statute. As a scheduled Bank, the Bank of Punjab is amenable to control and supervision of the State Bank under the State Bank of Pakistan Act, 1956 and the Banking Companies Ordinance, 1962, both of which are Federal subjects and concern the Federation. It may be mentioned that the Bank of Punjab Act, 1989 was amended by the Bank of Punjab Amendment Ordinance, 1962 shall apply to the Bank of Punjab after it had been declared as a scheduled Bank by the State Bank of Pakistan.
16. It may also be stated that though the time when the acts complaint of are said to have been committed by Mr. Tajjamal Hussain, appellant No. 2, the Bank of Punjab was not a scheduled Bank but it would hardly make any difference as at the time when the complaint was made and the case was registered by the F.I.A, the Bank had become a scheduled Bank and was amenable to the control of the State Bank of Pakistan to which Banking Companies Ordinance, 1962 had been made applicable. The registration of case, matters of inquiry and investigation, and even form of trial are purely procedural in nature and as such laws may as well be retrospectively applied. Reference in this connection may be made to Adnan Afzal v. Capt. Sher Afzal (P.L.D. 1969 S.C. 187) and Nabi Ahmad & another v. Home Secretary, Govt, of West Pakistan, Lahore & others (P.L.D. 1969 S.C.599).
17. Be that as it may, we find force in the contention of Mr. M. Saleem Sahgal, Advocate that entries No. 28 and 31 of the Federal Legislative List have no relevance in this case which more properly fall under entries No. 1 & 2 of the Concurrent List contained in the 4th Schedule to the Constitution relating to Criminal Administration of Justice. A reference to entries No.28 and 31 would show that these entries have relevance qua the determination of the question as to whether or not the Federal Legislature has any power in respect of Banking and other Corporations whose activities are confined to one Province but this question does not arise in the present case where what fall for determination is as to whether any offence has been committed by Mr. Tajjamal Hussain though in relation to the affairs of Bank of Punjab. The matter relating to investigation, inquiry and trial of offences are covered by entries No. 1 & 2 of the Concurrent List which relate to Criminal Administration of Justice and the Code of Criminal Procedure. While interpreting these entries it must be remembered that the entries must not be construed in any narrow and pedantic sense and as wide as possible interpretation must be given. If any authority is needed reference may be made to Fauji Foundation and another v. Shamimur Rehman (P.L.D. 1983 S.C. 457), Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (P.L.D. 1975 S.C.397) and Messrs Haider Automobile Ltd. V. Pakistan (P.L.D. 1969 S.C. 623). It, therefore, cannot be said that the Parliament had no competence to frame laws in respect of the offences committed in relation to the affairs of the Bank of Punjab. As regards the exercise of executive authority by the Federation, suffice it to say that not only the matter falls within the Concurrent List but further that the Parliament has made a law namely Federal Investigation Agency Act, 1974 in relation thereto and consequently, the Federal Government and its Agencies can exercise those powers which have been conferred upon them by the Federal Investigation Agency Act, 1974 in view of sub-article (2) of Article 97 of the Constitution.
18. There is another aspect of the matter which is that admittedly the Bank of Punjab has become a Scheduled Bank to which the Banking Companies Ordinance, 1962 applies not only by its own force but also by virtue of section 2-A of the Bank of Punjab (Amendment) Ordinance, 1993. Admittedly the Banking Companies Ordinance, 1962 as also the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 are Federal Statutes and also included in the Schedule to the Federal Investigation Agency Act, 1974. We are, therefore, unable to agree with the learned counsel that F.I.A, has no jurisdiction in the matter.
19. Faced with this situation the learned counsel for. The appellants has argued that as the offence under Section 83 of the Banking Companies Ordinance, 1962 can only be taken cognizance of by the High Court and that too on a complaint made by the State Bank of Pakistan or an Officer duly authorised by it in this behalf, F.I.A, could not register any case. A reference was made by the learned counsel to section 84 of the Banking Co-panies Ordinance, 1962. Reliance of the learned counsel on the above quoted provision is of no use to him for, wording, the Ast takes away the jurisdiction of any other Court except the High Court to taie cognizance of the offence and does n of a case or investigation by any other Agency. The question, of application of section, 84 would only arise when challan is submitted to a Court. If any authority is need reference may be made to Messrs Nawab Sons Laboratories Ltd v. The Superintendent of Police, F.I.A, and another (P.L.D 1976 Lah. 813), where while interpreting a similar provision in special laws, it was observed that jurisdiction of the Police to register a case is not ousted by those provisions.
20. We have considered the other contentions raised by the learned counsel for the appellants namely that no offence whatsoever is made out even if the allegations in the FIR are deemed to be correct. We were hesitant to go into this aspect of the matter as presently we are not called upon to decide whether allegations made in the FIR are true or false especially when the case is still at initial stage and is in the process of being investigated into. But as the learned counsel has insisted, we suffice by observing that even on the own showing of the learned counsel, an offence under section 83 of the Banking Companies Ordinance, 1962, if not any other law, is made out on a prima facie view of the matter. We may also note that before the learned single Judge, the learned counsel for the appellants has given up this point as is evident from the observations appearing in paragraph 18 at page 13 of the impugned judgment.
21. The next contention of the learned counsel that the challan, if any, has to be submitted to this Court as required by section 84 of the Banking Companies Ordinance, 1962 and not to the Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 calls for no serious consideration as to us this grievance appears to be premature at this stage. As observed by the learned single Judge as it is only when the challan is submitted to a Court that such a question can arise. Further more, though some offences are mentioned in the F. I.R, but the prosecution during investigation may as well come to the conclusion that some other offence has been committed by appellant No.2. It is only thereafter that the question of forum of trial would arise. We may reiterate that it is not for us to decide as to which Court the challan is to be submitted. If in the opinion of the appellants, the challan has been filed in a wrong forum, it shall, of course, be open to them to raise an objection in this behalf or seek some other remedy as may be available to them under the law at that time.
22. As regards the question of immunity, it is to be seen that on the own showing of the learned counsel for the appellants, the immunity is not absolute but is conditional upon the existence of "good faith". We wonder as to under what law could anybody claim immunity from prosecution in respect of a criminal act, if indeed committed by him. Be that as it may, the question of "good faith" is one of fact and the immunity given by section 26 of the Bank of Punjab Act, 1989, would only be available to those acts which were done honestly and in good faith. This plea is in the nature of defence which will, of course, have to be taken into consideration at the proper stage. Appellant No. 2 may even before the Investigation Agency rely upon this provision and establish good faith on the basis of documents in his possession or any other material which he might wish to produce. We cannot at this stage held that all the acts of which appellant No. 2 has been accused were done by him in good faith and, therefore, reliance of the learned counsel on section 26 appears to be premature.
23. In the end, the learned counsel for the appellants has requested that the respondents be directed to complete the investigation and submit the challan to the Court of competent jurisdiction within a reasonable period of time. This request, we find fully justified. The learned Deputy Attorney-General undertakes that the investigation shall be completed and challan submitted to a Court of competent jurisdiction within a period of four weeks from today.
The appeal stands disposed of in the above terms.