' This petition was filed for deputing a bailiff of the Court for recovery of the petitioner from the lock- up of Police Station F.I.A. C.B.C., Multan and for declaring his detention as illegal, unwarranted and without lawful authority. It was further prayed. That F.I.R. No,78/94 Police Station F.I.A. C.B.C., Multan registered on 26-12-1994 may be quashed on the grounds that the same was the result of mala fides and was misuse of the process of law only to coerce the petitioner to repay the amount obtained in the name of Messrs Azmat Ghee Mills (Pvt.) Limited. The petitioner having been granted bail subsequently the first prayer made in the petition does not require any advertence at this stage.
2. Notices were issued to the respondents and written statement was filed by the respondents.
3. It was contended by the learned counsel for the petitioner that Azmat Ghee Mills was the borrower, having obtained final facility from United Bank Limited. The said company availing interest bearing loan prior to the introduction of Islamic Mode of Banking. The facility in its name was last sanctioned on 10-6-1987 and two Chowkidars and one godown keeper were to be posted at factory on party's account. The petitioner was the Chief Executive of the company and default having been committed the company entered into negotiation with the bank for reschedule of the finance which was not considered favourably by the bank.
4. The bank filed suit for recovery of Rs,2,97,29,735.25 before the Banking Tribunal, Multan on 4-9- 1994 wherein the company and its Directors were issued notices under section 6(2) of Banking Tribunals Ordinance, 1984. An application under Order 38, Rule 5, C.P.C. Was appended with the plaint. The tribunal was pleased to attach the property of the company before judgment the same day, bailiff of the Court was deputed to visit the spot and prepare an inventory.
5. The defendants in the suit filed Writ Petition No,4696/94 challenging the vires of sections 4, 6 and 9 of Banking Tribunals Ordinance. The writ petition was admitted for regular hearing on 10-10-1994 and in Civil Miscellaneous No,1890 of 1994 in the said writ petition the proceedings before the Banking Tribunal Multan were stayed on 15-12-1994.
6. F.I.R. No,78/94 was registered on the basis of the letter written by Mr. M. Tanvir Alam, A.V.P./Manager of the Bank alleged the commission of offence under section 420/406/408/409/380, P.P.0 and under section 5(2)/47, P.C.A.
7. The learned counsel for the petitioner contended that the liability of the company and directors were contractual towards the Bank and the respondent Bank had filed a suit for recovery of the alleged outstanding in a Court of competent jurisdiction. It was dispute of civil nature. The contractual obligation was to be enforced through a Special Tribunal the filing of the suit for recovery by the Bank was step in the right direction but in the circumstances as narrated above the Bank officers felt annoyed and in order to coerce the petitioner and other directors of the company into making the payment of outstanding, the subject-matter of recovery, lodged F.I.R.
And thus abused the process, of law. It was also submitted that no date of occurrence was given in the F.I.R. And the delay was not explained; the salary of the godown staff was being deducted from the account of the petitioner by the Bank and therefore, there could be no question of stealing as no report to that effect has come from the Chowkidars and the godown keeper appointed by the Bank; the petitioner and other directors were not the public servant and therefore, the allegations of commission of offence under sections 408, 409 and 5(2)/47, P.C.A were not attracted in the case and that the provisions of sections 406 and 380, P.P.0 were self-destructive. Reliance was placed on State v. Asif Ali Zardari 1994 SCMR 798, Abdul Ghafoor v. Zubaida Bibi 1995 PCr.LJ 936, Syed Maqsood Hussain v. Syed Fiaz Muhammad 1995 PCr.LJ 1257, Mst. Shabana Chaudhry v. S.H.O., Akbari Gate and others PLD 1993 Lah. 416, Shaukat Ali v. The State PLD 1987 Lah. 116, Javed Hamid v. Hussain Jhan and others PLD 1991 Pesh. 121 and also Mian Bakhsh Elahi v. The State 1993 PCr.LJ 856 and Khushi Muhammad v. Abdul Hafeez 1987 PCr.LJ 615.
8. The learned counsel appearing on behalf of the Bank and the learned Assistant Advocate- General opposed the petition on the ground that the offences alleged against the petitioner were exclusively triable by the Tribunal and the petitioner could make an application for his relief before the said Court and the High Court in the circumstances, had no jurisdiction to quash the proceedings. Reliance was placed on A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 Abdul Haleem v. Special Court Customs and others 1982 SCMR 73 and Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599.
9. I have considered the arguments at the Bar and have also gone through the Annexures to the plaint and the documents annexed with the written statement filed by respondent No,3. The judgments cited by the learned counsel for respondent No,2 are not applicable to the present case.
A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 was entirely on different facts whereas Abdul Haleem v. Special Court Customs 1982 SCMR 73 had a different connotation. The argument of the learned counsel for the Bank that the alleged offence was a scheduled offence and was triable by a Special Tribunal and appeal against any judgment could only be heard by a Division Bench of this Court and the Court had no jurisdiction to quash the proceedings is not applicable. This question was duly answered by their Lordships in the Supreme ourt in case reported as State v. Asif Ali Zardari 1994 SCMR 798. The said as a case triable by a Special Court constituted under Banking Tribunal (Bank offences) Ordinance, 1984 wherein the contention of the learned Advocateeneral that the High Court had no jurisdiction in the matter was repelled and it as held that the view that the High Court had no jurisdiction to pass an order nder section 561-A, Cr.P.C. Was not tenable. In a petition under Article 199 of he Constitution of Islamic Republic of Pakistan, 1973 this Court has unabridged owners to pass orders where it feels that the orders were being passed or proceedings were taken without lawful authority and without jurisdiction, therefore, I hold that the dictum as laid down in State v. Asif Ali Zardari 1994 SCMR 798 was applicable in the present case.
10. In the present case there was a contractual obligation as contended by the learned counsel for the Bank. Reliance has been placed on agreement of pledge of goods and the terms and conditions of finance agreed to by the parties. In case where the contractual obligations are admitted and the goods were pledged it was necessarily a case of civil nature. Reliance can be placed on Abdur Ra77aq v. The State 1977 PCr.LJ 52 and Mirza Nassim Beig v. Muhammad Iqbal and another 1981 SCMR 315. Further reliance is made on Mst. Shabana Chaudhry v. S.H.O., Akbari Gate and others PLD 1993 Lah. 416 Shaukat Ali v. The State PLD 1987 Lah. 116 and Mian Bakhsh Elahi v. The State 1993 PCr.LJ 856.
11. Adverting to the facts of the case as narrated in the writ petition plaint filed before the Banking Tribunal and the written statement filed by the Bank in the present writ petition I am of the view that the borrower company of which the petitioner was the Chief Executive had committed default in making the repayments and the petitioner had been requesting for rescheduling of the loan. The contents of .Letter No,I.A.Q. 531-K dated 8-6-1992 addressed to the borrower company contains an advice to the borrower as under:-- "You have 384.029 Metric Tons R.B.D. Oil in your stock in tanks Nos.4 and 5 and we advise you to consume it first."
12. It was sufficient authority by the Bank to consume the oil allegedly placed in pledged. The petitioner proved that the Bank had deputed a godown keeper and two Chowkidars to keep whatsoever, pledged goods, open or actual, and their salaries were debited to the account of the borrower. Originally the writing on the basis of which case F.I.R. No,78/94 was registered was regarding registration of the case under section 420/406/408/409/380, P.P.C. And section 5(2)/47 of the P.C.A. Unless the employees of the Bank are made the accused persons in the case, offences under sections 408 and 409, P.P.C. And 5(2)/47 of the P.C.A. Could not be made applicable. At the time of the registration of the case it appears that the Bank tried to save their own employees from the criminal proceedings and felt satisfied with the registration of case under section 380/109, P.P.C.
Or realized that in such case they shall have to account for- to the borrowers.
13. I would observe, before discussing further, that offences under section 406/408/409, P.P.C. And offence under section 380, P.P.C. Were self-destructive. If there was misappropriation there could be no theft. In the present case no complaint came from the godown keeper and Chowkidars posted allegedly at the spot. The Bank had authorised the petitioner to consume the oil placed in tanks Nos.4 and 5 and if there was any infringement in making conversion or not placing the converted goods in pledge or to have taken the same away would not make the same a criminal offence. It was a civil liability duly covered by an agreement executed between the creditor and the borrowers, and the Bank has itself admitted the execution of such agreement, the obligation enter se were, therefore, contractual.
14. The very fact that the Bank opted to go to the Court of competent urisdiction for seeking recovery of the advance amount and getting the goods ledged or otherwise, attached before judgment on making an application under order 38, Rule 5, C.P.C. Shows that the Bank had adopted the best available ourse available to them. They appear to have been annoyed on the filing of the rit petition by the petitioner in the High Court challenging the vires of Banking Tribunals Ordinance, 1985 wherein the High Court passed the order of stay of proceedings in the suit. This indicates that the motivating force in lodging the F.I.R., was mala fide. It was an attempt to coerce the petitioner and other directors of the company to yield into making payment of the outstanding outside the Court. The dictum of the Supreme Court as laid in Mirza Naseem Baig v. Muhammad Iqbal and another 1981 SCMR 315 applies in the present case. It was observed therein:-- "The principle upon which the complaint can be quashed is well settled, namely, that the High Court should examine the complaint to determine as to whether it makes out an offence; and in doing this exercise it should not be influenced by any extraneous material which is not germane to the issue. However, it may also be stated here that the High Court is not denuded of its powers to quash the proceedings if it is satisfied from other cogent material that the prosecution was launched for improper motives, merely to harass the accused or that its continuance would be abuse of the process of the Court or for other reasons which impel the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue."
In view of what has been discussed above I am of the view that the judging of the F.I.R. Was out of mala fides and was an abuse of process of law the gravest order. The petitioner was arrested and put behind the bars. The writ petitions and suit for recovery were still pending. Other security in the nature of mortgage etc were also subsistence and as such the petitioner and the ether directors of the company cannot be allowed to be in criminal proceedings based on contractual obligation.
Resultantly F.I.R. No,78/94 Police action F.I.A. C.B.C., Multan registered on 26-12-1994 is declared to be the adult of mala fides on the part of the Bank Authorities and is quashed with all consequences that followed after the registration of the case. There shall be order as to costs.
F.I.R. Quashed.