' SAIDUZZAMAN SIDDIQUI, J.---Mian Khan appellant in Civil Appeals Nos.556/95 and 1079/95, Khalid Khan and Nisar Khan, appellants in Civil Appeal No, 1079/95 and all of them also respondents in Civil Appeal No,1080/95 (hereinafter to be referred to as the appellants' only) along with some residents of Pajnool Tehsil, District Mansehra, lodged a criminal complaint against Syed Mudassar Shah, respondent No,1 in Civil Appeal No,1079/95, respondent No,2 in Civil Appeal No,556/95 and appellant in Civil Appeal No,1080/95 (hereinafter to be called 'the respondent' only), Managing Director of Domel Devli Forest Production and Multi Purposes Cooperative Society Limited, Devli, Tehsil and District Mansehra (hereinafter to be called as 'the Society' only), before the Director Anti- Corruption Establishment, N.-W.F.P., Peshawar alleging that respondent, in collusion with D.F.O.
Hashim Ali illegally cut the trees from reserved Forest and misappropriated the same, causing loss to Government and owners of the trees. While the enquiry into the above complaint lodged by the appellants was in progress, the respondent instituted a civil suit before the Senior Civil Judge, Mansehra, on 27-4-1993, against the appellants, Director Anti-Corruption, Peshawar, Circle Officer Anti-Corruption and Government of N.-W.F.P., seeking permanent injunction restraining them from investigating into the criminal complaint filed against him. Along with the suit the respondent also filed application for grant of temporary injunction in the same terms during pendency of the suit.
The application for grant of interim injunction was rejected by the trial Court on 19-7-199'3. The respondent challenged the order of trial Court dated 19-7-1993 before the District Judge, Mansehra, in appeal, which was allowed by order dated 11-12-1993, and interim injunction as prayed for was granted. Against the order of District Judge, Mansehra, dated 11-12-1993, two separate Civil Revisions, one by the appellants and other by Director Anti-Corruption, N.-W.F.P., Circle Officer Anti- Corruption, Mansehra and Circle Officer Anti Corruption, Abbottabad, bearing Nos.99 and 138 of 1994 were filed before the Peshawar High Court. During pendency of the above Civil Revision Applications before the High Court one Ghulam Mustafa, President of the Society filed Writ Petition No,122 of 1994 before the Peshawar High Court, challenging the validity of investigation of criminal charges by the Anti- Corruption Establishment against the office-bearers of the Society. The writ petition filed by said Ghulam Mustafa and the two civil revision petitions referred to above were heard together and disposed .Of by a learned Division Bench of the Peshawar High Court, Abbottabad Bench, by judgment dated 16-3-1995. Against which leave was granted by this Court in Civil Appeal No,556/95 as follows:-- "Leave is granted in the above petition to consider whether the enquiry initiated by the Anti- Corruption Department against respondent No,1 on the complaint of petitioner was hit by the provisions of sections 70-A and 63 of the Cooperative Societies Act 1925. The operation of the impugned judgment is stayed until hearing of the appeal."
' On the basis of the above leave granting order, leave was also granted in Civil Appeals Nos.1079 and 1080 of 1995. We may mention here that Civil Appeals Nos.556/95 and 1079/95 have been filed against the judgment of the High Court, dated 16-3-1995 through which High Court decided Writ Petition No,122 of 1994 and Civil Revision Nos.99 and 138 of 1994. However, Civil Appeal No,1080 of 1995 has arisen from the judgment of the High Court dated 3-10-1995 dismissing F.A.O. No,10 of 1995 filed by the respondent against the order of District Judge, Mansehra, dated 24-9-1995, whereby the District Judge refused to extend the validity of interim injunction granted by him on 11-2-1993.
The learned Judges of the High Court refused to interfere with the order of District Judge, Mansehra, dated 24-9-1995 in view of the provisions of Rule 2-B of Order 39, C.P.C. And the leave granting order of this Court dated 16-5-1995 passed in Civil Appeal No,556 of 1995. We have heard the abovementioned three civil appeals together and propose to dispose them of by a consolidated order as the leave granting order in all the above appeals is the same.
' The learned counsel for the appellants contended that the investigation into the complaint filed by the appellants alleging misappropriation against respondent had nothing to do with the conduct of the affairs of the cooperative society and as such the learned Judges of the High Court fell in error in holding that investigation into the complaint of appellants- against respondent could not be carried on without obtaining sanction of the Registrar Cooperative Societies under section 63(3) of the Cooperative Societies Act, 1925 (hereinafter to be called as 'the Act' only). The respondent on the other hand supported the order Of the High Court. The learned counsel for the official respondents supported the appellants.
' The learned Judges of the High Court while accepting Writ Petition No,122 of 1994 and dismissing Civil Revision No,138 of 1994 and 99 of 1994, observed as follows:-- "5. From the facts of the case, as placed before us, it appears that the dispute between the parties falls completely within the business and internal management of the "Domel Devli Forest Production and Multi-Purposes Co-operative Society". Learned Assistant Advocate-General mainly contended that the protection contained in section 63, subsection (3) is confined to offences described in section 60 of the Act. But, an exhaustive study of the Act transpires that the scope of the authority of the Registrar is much larger than the one stressed by the Learned A.A.G. We are cognizant of the provisions of section 54. Of the Act which very vividly indicates that any dispute touching the business of Society which arises between the Society or its committee, on the one hand, and any past or present member of the Society on the other hand, can only be referred to the Registrar of Cooperative Societies for decision by him or his nominee, or, if either of the parties so desires, to arbitration of three arbitrators. It is also provided in the said law that Registrar, upon reference of such dispute to the arbitrators, finds that certain members of the Managing Committee or the office-bearers of the Society have cheated the Society or committed forgery or embezzled or misappropriated its funds, he can initiate an inquiry under section 43 and section 44- B of the Cooperative Societies Act. The said Act has also empowered the Registrar to exercise all or any of the powers contained in section 50-A of the Act which include the powers to initiate criminal prosecution under section 50-A, subsection (2). (1985 PCr.LJ 2871 followed).
6. There is yet another important provision of the Act with regard to bar of jurisdiction contained in section 70-A and we find it advantageous to reproduce the same in verbatim:-- 70-A. Bar of jurisdiction.--(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-- (b)
(c)
(2)---------------------------
7. After recapitulating the aforesaid legal position we find ourselves in complete agreement with the learned counsel for the petitioner that no authority can prosecute or initiate prosecution by way of ' inquiry/investigation unless and until it has obtained sanction from the Registrar, Cooperative Societies as envisaged in subsection (3) of section 63 of the Act."
' We would like to point out here that reference to subsection (3) of section 63 of the Act in the impugned judgment by the learned Judges of the High Court was the result of omission on their part to notice the amended section 63 of the Act which was substituted by Act I of 1992. The substituted section 63 reads as follows:-- "63. Cognizance of offences.-No Court shall take cognizance of any offence punishable under the Act except on a complaint in writing made by the Registrar or by a person duly authorised, for the purpose, by him: ' Provided that cognizance of an offence under subsection (2) of section 62-A may be taken even otherwise than on such complaint."
It is quite clear from reading of section 63 of the Act that jurisdiction of ordinary Courts to take cognizance of an offence has been ousted only in respect of offences which are punishable under the Act and this ouster of jurisdiction too ceases to be applicable as soon as a written complaint is filed by the Registrar or a person authorised by him in this behalf, before the Court. However, in respect of offences punishable under any other law, the jurisdiction of ordinary Court to take cognizance is not at all affected by section 63 of the Act. The offences and penalties prescribed therefor under the Act are stated in sections 60 to 62 of the Act. Therefore, if a question arises whether the jurisdiction of the Court to take cognizance of an offence is barred under section 63 of the Act, the Court has to determine whether the allegations constituted an offence punishable under the Act or not? If the answer to this question is in the affirmative the Court will stay its hand in the matter until such time a written complaint is filed before it by the Registrar or a person authorized by him in this behalf. However, if the answer to the above question is returned by the Court in the negative, the Court may take cognizance in the matter and proceed further. Therefore, a positive finding by the Court that the allegations constituted an offence punishable under the Act is a precondition for application of the ouster clause contained in section 63 of the Act. The learned Judges of the High Court while restraining respondents Nos.3 to 5 from holding enquiry into the complaint filed against the respondent, observed that the dispute raised in the complaint related to the business and internal management of the Society and as such it could not be investigated on account of bar contained in section 54 and section 70-A of the Act. A dispute touching the business of Society, between member or members and the past members of the Society or between members and the Society or its Committee, is quite distinct and separate from the allegations which discloses an offence against the office bearers of the Society. The provisions contained in sections 54 and 63 of the Act are attracted in different context and situation. Section 54 is not attracted in a case where- allegations are that an officer or the office-bearer of the Cooperative Society has committed an act which is punishable under Pakistan Penal Code or under some other law. Similarly, section 70-A of the Act bars jurisdiction of all other Courts and authorities to entertain or to adjudicate upon any matter which the Provincial Government, Registrar or his nominee, any arbitrator, a liquidator, a Society, a financing bank, a Cooperative Bank or any other person is empowered by or under the Act or rules or bye-laws framed thereunder, to dispose or to determine. Here again the condition precedent to attract the application of ouster clause is that the matter in issue is such which the Registrar, the Provincial Government or Registrar's nominee is authorized under the provisions of the Act to decide or adjudicate upon, This provision also cannot be pressed into service, if the allegations against the officer or office bearers of the Society disclose an offence which is punishable under a law other than the Act.
' In the case of Sindhi Cooperative Housing Society v. Superintendent of Police 1989 ALD 519(2) a Division Bench of High Court of Sindh consisting of Ajmal Mian, C.J. (as he then was) and Mukhtar Ahmad Junejo, J. In a writ petition filed under Article 199 of the Constitution seeking directions against police officers not to interfere in the working of the- Society and to take action against the office-bearers on the basis of a complaint filed under Anti-Corruption Act, 1947 by the Anti- Corruption Police held that the bar contained in section .63 (unamended) of the Act was not attracted. The petition was dismissed with these observations:-- ' In order to appreciate the above contention of the learned counsel for the parties, it may be pertinent to reproduce the above section 63 of the Act, which reads as follow:-- "Cognizance of offences.--(1) No Court inferior to that of a Magistrate of the first class shall try any offence under this Act.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every Offence under this Act shall, for the purposes of the said Code, be deemed to be non-cognizable.
(3) 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 reasonable opportunity of being heard)."
5. It is clear from the perusal of the above section of the Act that subsection (1) of the same provides that no Court inferior to the Court of First Class Magistrate shall try any offence under the Act, whereas the subsection (2) lays down that notwithstanding anything contained in the Cr.P.C.
Every offence under the Act for the purpose of the said Court be deemed to be non-cognizable.
Subsection (3) provides that no prosecution under the Act shall be lodged ( without the previous sanction of the Registrar and which shall not be given except after serving notice on the party concerned and giving him a reasonable opportunity of being heard.
6. The above section 63 is provided in Chapter 9 of the Act, which has the caption "offences".
Sections 60, 61 and 62 provide the offences under the Act. If we were to read section 63 with the above 3 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 offence under this Act", it becomes evident that the sanction is required only in respect of those offences before loading 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.
7. Another point which is to be noticed is that the lodging of the prosecution is prohibited without the previous sanction of the Registrar in respect of the offences under the Act. The question arises whether registering of an F.I.R. Constitutes lodging of the prosecution or is it the submission of the challan before the competent Court for prosecution constitutes lodging of the prosecution as in the instant case as observed hereinabove, the matter is still at the stage of investigation. In our view, it is a debatable point, whether merely lodging of F.I.R. Constitutes lodging of the prosecution in terms of subssection (3) of section 63. But this is not necessary to decide the above point as we are clear on the above first point. The petition is therefore dismissed in limine."
' To the similar effect are the observations of two other learned Single Judges of High Court of Sindh in the cases of Mubarik Hussain Siddiqui v. Sajjad Hassan .Khan and others (PLD 1992 Kar.167) and Muhammad Afzal Khan v. Shahid Hussain Qureshi etc. (1988 PCr.LJ 655).
In the case before us, there were number of complaints filed by the appellants and others against the respondent. These complaints were being investigated by the Anti-Corruption Department.
Unless these investigations were completed it was not possible to hold whether the allegations made against the respondent disclosed an offence punishable under the Act or under some other law. We are, therefore, of the view that there was no justification at this stage for grant of any injunction interim or otherwise to stop investigation by respondents Nos.3 to 5 on the ground that Anti-Corruption Department had no jurisdiction to investigate into these allegations. In the absence of any charge framed by the Anti-Corruption Department as a result of its investigation into the complaints, it was not possible for the Court to decide whether section 63 of the Act was attracted or not. The learned High Court therefore, could not interfere with investigation of the case by the Anti-Corruption Department. As a result of alive discussion, Civil Appeals Nos.556/95 and 1079/95 are accepted and the impugned judgment is set aside. Civil Appeal No, 108095 is dismissed. ID There will be no order as to costs.