1. ' WAJIHUDDIN AHMED, J.---The dispute in these leave petitions pertains to issuance of guarantees by respondent National Bank of Pakistan (N.B.P.) in favour of the Privatization Commission of Pakistan at the instance of the petitioners on 8-7-1992. Petitioner-Sahibzada Abdur Rahim, through attorney-petitioner Sahibzada Muhammad Khan, in such behalf, created an equitable mortgage over his landed property, situated in Karezat Kuchlak and a residential house in Quetta. Petitioners Sahibzada Muhammad Khan and Sahibzada Juma Khan executed guarantees for repayment under the agreement, concluded with petitioner Balochistan Trading Company (Pvt.) Ltd. A letter of authority was also executed in favour of the Bank on 5-7-1992. The guarantees for the payment were to take effect from 26-7-1992, having a nexus with handing over possession of Chiltan Ghee Mills' property to the petitioners by the Privatization Commission. Such property of Chiltan Ghee Mills was also mortgaged with matching hypothecation of the stocks available therein. Because the Petitioners failed to make good the yearly instalments with mark up, against corresponding payments by the Bank to the Privatization Commission, the NBP instituted Suits Nos. 41 and 42, both of 1995, before the Banking Tribunal Balochistan at Quetta. Such suits were for recovery of Rs,1,14,78,5740,62 and Rs,1,59,05,305.00 respectively together with mark up and costs etc., the suits having been instituted under the Banking Tribunals Ordinance, 1984. Since there were hardly any defences in the suits, except technical pleas, which were rejected by the Banking Tribunal, the suits were decreed with costs, subject to the conditions that Sahibzada Abdur Rahim was made liable to the extent of his property alone and not personally, the Chiltan Ghee Mills, since it had not been transferred as yet, was not made liable for the decretal amount and no liquidated damages were awarded, because necessary loss was not established. Mark up, however, from the date of the suits till realization of the whole decretal amounts, was allowed besides other claims in the suits. The petitioners did not appeal and their plea has been that the appeal, being conditional upon deposit of the decretal amount, was merely illusory and in circumstances could not be resorted to. Any way, the petitioners sat tight till executions were preferred for sale of the properties, belonging to petitioner-Balochistan Trading Company (Pvt.) Ltd. And the personal properties of Sahibzada Muhammad Khan, Sahibzada Juma Khan and Sahibzada Abdur Rahim, attachments of outstanding amounts payable to the Balochistan Trading Company (Pvt.) Ltd. By the Provincial or Federal Governments or any other authority together with arrests of Sahibzada Muhammad Khan and Sahibzada Juma Khan. In the meantime, because the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, had come to occupy the field and because all proceedings, pending before the Banking Tribunals, per section 7(6) were transferred and were to be taken up by the relevant Banking Court, under the new dispensation, the executions preferred in February, 1996, were taken up by such Court. Necessary notices, following thereupon, the executions could be proceeded with by the Banking Court not earlier than 8-9-1997, when objections were raised as to the arrests of Sahibzada Muhammad Khan and Sahibzada Juma Khan, but were rejected and warrants of their arrest were ordered to be issued. In passing, it may be pointed out here that the plea of the judgment-debtors that the matter was pending resolution, for what it may have been worth, apparently was taken up on 15-9-1997 but seeming to have been unacceptable was by-passed. We, accordingly, understand that nothing contextually in the circumstances could not in fact ever came about. Be that as it may, against the orders last mentioned, the petitioners preferred Constitutional petitions in the High Court of Balochistan at Quetta. Before the High Court, the contentions raised were that the judgments and decrees had not been appealed against because the right of appeal, ridden by the aforementioned conditions was, illusory and much the same impediments subsisted in preferring an appeal against the order dated 8-9-1997, driving the petitioners to make resort to the constitutional jurisdiction of the High Court. On merits, it was urged that the requirements of Section 51 of the Code of Civil Procedure, pertaining to arrests were not satisfied before the impugned order was passed. It was added that, in the meantime since the State Bank of Pakistan (SBP) came up with an incentive package for the benefit of bank defaulters, the petitioners has also put in necessary representation, which remaining pending, resort to execution was unwarranted. The High Court, besides finding the petitions non-maintainable, rejected both the contentions and observed that the requirements of section 51 read with Section 55 C.P.C. Were satisfied and as regards the SBP circular dated 5-6- 1997, under which the petitioners were seeking shelter, the same did not provide for any reprieve as against the executions. The two separate constitution petitions, relevant to the two suits, bearing Nos.392/1997 and 393/1997, thus stood dismissed on 2-10-1997, giving rise to these petitions for leave to appeal before us.
2. ' In essence and in substance, the plea for leave boils down to urging that the order passed by the Banking Court, Quetta, on 8-9-1997, could not be, appropriately, appealed against because of the restricted right of appeal, envisioned in the Banking Tribunals Ordinance, 1984, which, as a precondition, required deposit of the claimed or the decretal amount, as the case may, for such appeal to be entertained. In this state of law, it is contended that the right of appeal being illusory, a constitutional petition was maintainable. Reliance, contextually, is placed on Eastern Rice Syndicate v. Central Board of Revenue, (PLD 1959 Supreme Court (Pak.) 364, Nagina Silk Mill v.
3. Income-Tax Officer, PLD 1963 Supreme Court 322, Usmania Glass Sheet Factory Ltd. v. Assistant Collector of Customs, PLD 1968 Dacca 276 and Haroon Brothers v. Drugs Registration Board, 1992 CLC 1017. To the same effect are Maududur Rehman v. Central Board of Revenue, PLD 1975 Karachi 51 and Majeed Enterprises v. United Bank Ltd., 1994 CLC 2292. The cited dicta does lay down that where a sub-constitutional law provides for deposit of the disputed amount, as a pre-condition for the appeal or revision against, inter alia, the order, occasioning such deposit, the constitutional remedy under Article 199 of the Constitution can be the more efficacious and adequate of the remedies and may be resorted to Correspondingly, with specific reference to the Banking Laws, are Sirajuddin v. Habib Bank Ltd. PLD 1994 Peshawar 233 and Zarat International (Pvt.) Ltd. v. Banking Tribunal No,1 1995 MLD 1546, where sections 6 and 9 of the Banking Tribunals Ordinance 1984, were found to be valid, notwithstanding the postulates of providing bank guarantees or deposits, and Khurshid Alam v. United Bank Ltd., PLD 1995 Karachi 409 and Tank Steel and Re-rolling Mills (Pvt.)
4. Ltd. Federation of Pakistan. PLD 1996 Supreme Court 77, wherein it was laid down that in view of the available remedy by way of an appeal under Section 9 of the Banking Tribunals Ordinance, a constitutional petition under Article 199 did not lie. Earlier to this, it was already held by their lordships in Shaikh Gulzar Ali & Co. v. Special Judge, S. Court of Banking, 1991 SCMR 590, that a pre- condition of deposit or furnishing of security for admission of an appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, equivalent to the decretal amount, the latter as relaxed by the Court in its discretion, could not be said to be a negation of the right of appeal for the simple reason that a right of appeal is not an inherent right ensured by any higher law but was merely a creature of the law. In juxtaposition, law has gradually evolved to ecognize and infer due rights of hearing and adequate redress by providing at least one appeal against an adverse action to the affectee. Thus in Pakistan v. Public At Large, PLD 1987 Supreme Court 304, specific provisions of the Civil Servants Acts, which did not provide for due show cause notices, were declared to be against the Injunctions of Islam. Federation of Pakistan v. Public At Large, PLD 1988 Supreme Court 202, again a decision of the Shariat Appellate Bench, in the context of the West Pakistan Press and Publication Ordinance, 1963, proceeded to require an amendment allowing an aggrieved party to test the correctness of a refusal to authenticate on the part of the District Magistrate. In Pakistan v. Central Public, PLD 1989 Supreme Court 6, with reference to the Army Act, 1952, it was observed that according to the tenants of Islam, a right of appeal cannot be denied or barred and that an aggrieved person did not only have the right to challenge an order of which he felt aggrieved, but also had a further right to appear before the appellate forum and be heard in support of his appeal. Necessary amendments were required to be carried out. Commissioner of Income-Tax v. Siemen A.G. PLD 1991 Supreme Court 368, a case from the general jurisdiction, is an authority for the proposition that so long as the existing statutes were not brought in conformity with the Injunctions of Islam, as enjoined by Article 227 of the Constitution, their interpretation, application and enforcement would duly reflect the Islamic rules of interpretation. Again, on the touchstone of Islamic dispensation of justice, upon an appeal from the Federal Service Tribunal, it was recommended in Registrar Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141, that an appeal may be provided in the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, against a penalty, which may be imposed by the Chief Justice. The principle in Re Siemen A.G. Ibid, since stands codified in the form of the Enforcement of Shariah Act, X of 1991. Indeed, it is, perhaps, upon these very considerations that the Banking Compaities (Recovery of Loans) Ordinance, 1979, and the Banking Tribunals Ordinance, 1984, have since been repealed and displaced by the current consolidating statute, namely, the Banking Companies (Recovery of Loans, Advance, Credits and Finances) Act, 1997, which has softened the procedure for defence of banking suits and correspondingly allowed an unhindered right of appeal except for stay of proceedings, which, in turn, have been made conditional, not dissimilarly to like restrictions in Order XLI rule 5 C.P.C., Emphasis, in the present legislation remains on expeditious disposal and that is readily understandable because it is delays and bad loans, which have brought the country to its present pass. What, therefore, has to be ensured in such matters, at all levels, is prompt justice and no matter who comes in the way deserves no corner.
5. ' Considering all the foregoing dicta, the case of the Tank Steel and Re- Rolling Mills Pvt. Ltd. (Supra), as to some of the observations occurring therein, is to some of the observations occurring therein, is clearly distinguishable because the ultimate order in the field, which came under challenge there, was an order of a Division Bench of the Peshawar High Court, passed in an appeal under Section 9 of the Banking Tribunals Ordinance and it was, in that relevance, held in such case that a Constitutional petition under Article 199 did not lie against the High Court, as the High Court was not a person to whom an order in the nature of a writ could be addressed. In so far as the two Karachi judgments in the cases of Zarat International (Pvt.) Ltd and Khurshid Alam (Supra) are concerned, the bro.Ad enunciation, as to non-maintainability of constitution petitions, finding place therein, cannot be sustained on the strength of a number of decisions of the superior Courts, relatively a recent one being that a Shahida Zahir Abbasi v. President of Pakistan, PLD 1996 Supreme Court 632, where it was declared that the provisions barring jurisdiction of the Court, contained in a sub- constitutional enactment, however expressly and widely worded, cannot affect or take away the jurisdiction of a superior Court conferred thereon under the Constitution, for example by Article 199 thereof. Incidentally, Muhammad Bashir Jehangiri, J, one of us on this Bench, who authored the decision in Re-Tank Steel and Re-Rolling Mills (Pvt.) Ltd was a party to the declaration in the case of Shahida Zahir Abbasi ibid., that fact being locatious enough to explain the opinion in the former precedent.
6. ' In reality, there is another angle to approach the problem. We have already seen that the petitioners allowed the judgments and decrees, dated 3-9-1995, passed by the Banking Tribunal, to attain finality by not preferring appeals relative thereto. Executions against them were filed somewhere in February, 1996 in the Banking Tribunal, because the Tribunal was subsisting till then.
7. However, in early 1997, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, XXV of 1997, was promulgated, followed by Act XV, of 1997 under the same title on 2-6-1997. With the advent of the Ordinance and soon thereafter of the Act, in terms of Section 7(6), the execution proceedings stood transferred to the Banking Court, created by the new law. In course of time, as already observed, the impugned order, in execution, dated 8-9-1997, was passed by the Banking Court, whereby an application of the petitioners judgment debtors, seeking stay on the basis of the SBP letter dated 5-6-1997, accompted by BPRD Circular No,19 of the same date, the incentive being clarified by BPRD Circular letter No,36 dated 17-7-1997, pursuant to which the proposal of the petitioners was forwarded by the SBP on 1-9-1997 to the President of HBP, was rejected on a plea that neither the petitioner No,1 was a sick unit nor the required down payment was made by the target dated viz. 5-9-1997 and resultantly sale of the property and arrest warrants of the petitioners Nos.2 and 3 were directed to be issued. Significantly, there was no right of appeal relative to execution proceedings under Section 9 of the Banking Tribunals Ordinance, 1984, vesting in a judgment debtor, against whom the decree had come to attain finality and its a corresponding very limited one but none against arrest, which has come to subsist in favour of such a person under the present dispensation, namely, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. This is not without reason or justification. A Banking Court, under Section 7(1), subject to the conditionalities of Act XV of 1997, is invested with all the powers of a Civil Court as visualised in the Code of Civil Procedure, the powers getting extended as the provisions, of the said Act, in virtue of section 3 of the said Act, subject to anything to the contrary in the Act itself, are in addition to and not in derogation of any other law already in operation. More specifically pursuant to section 18 of the Act Court may, in execution direct recovery in accordance with the Code of Civil Procedure or any law for the time being in force or "in such other manner as the Banking Court may deem fit". These are vast powers but in the background are the proverbial bank defaulters of Pakistan, who know well enough how to borrow but, in all appearances, it should take some doing to make them learn how to pay. Having said as such, on accasions, even such vast powers, as have come to reside in the Banking Courts, may be exceeded, twisted beyond redemption or entrap those, who have nothing to do with any bank default. It is in such extreme eventualities, very rase of occurrence in executions, as still rare in suits, if found squarely qualifying under Article 199 of the Constitution, that the Constitutional jurisdiction may, not only sparingly but grudgingly, be exercised. Subject to these constraints, even in cases of arrest, C such as in other banking disputes, where no appeal or other remedy is open, as in contemplation of Muhammad Ayub Butt v. Allied Bank Ltd., PLD 1981 SC 359 and Bank of America v.
8. Mam Bros., 1984 CLC 3393 the High Court, on considerations of public interest and public policy, in exercising its jurisdiction, pursuant to Article 199 of the Constitution, should be guided by a procedure, which, as an interim measure or otherwise, protects bank dues and does not countenance any premium on defaults. The principle should equally govern cases, where an appeal is provided but the High Court is constrained to allow access to its Constitutional jurisdiction in situations of extreme hardship and absolute good conscience.
9. ' Summing up, therefore, whatever way one may look, it needs to be stressed that the High Court was in error in brushing aside the Constitutional petitions on the score of total want of jurisdiction.
10. Even so, before either of the petitions could be entertained, it still remained for the petitioners, who were indebted in judge sums of money, to show that it was not merely a technical but a bona fide and substantial dispute that they were raising, that they were the oppressed and not the oppressors and that not being possessed of sufficient means, so as to satisfy the decrees in monetary terms, they, meaning thereby the relevant petitioners, had no avenue for seeking protection against unwarranted and unjust arrests but to avail of the only remaining remedy of a constitutional petition. It is another matter though, as would be seen below, that the petitioners were in no position to do so. In the present day malaise of widespread bank defaults and it having virtually become a fashion to go about defaulting, the Constitutional jurisdiction of the Court, notwithstanding the afore-quoted authorities, in such matters of manifest defaults, is to be used with a great deal of care and caution. The Constitutional jurisdiction is and remains a discretionary one and in cases of blatant defaults, the Court can well decline to interfere, for the machinery of the Court can be used only for advancement of justice and not to negate it. It is in this pre-view that the instant cases are to be examined.
11. Now, what are the essentials in these cases? In the first place, the running unit of Chiltan Ghee Mills was purchased by the petitioners from the Privatization Commission, the stakes of the petitioners being minimal and the brunt being squarely borne by another State run enterprise viz. The N.B.P.
12. Not only this, the burden was accepted by the bank, without ensuring sufficient securities. So much for the State enterprises of the Privatization Commission and the National Bank of Pakistan, who were only giving away and hardly taking anything in return. It has rightly become axiomatic that a bad loan or finance is usually bad at its very inception, among other things, on account of inadequacy or at times virtual absence of the back up documents. Then, the transactions took effect way back in the year 1992 but the recovery proceedings did not commence till 1995. When decrees followed, quite predictable, the customers did not bother. Even before us, Mr Fakhruddin G.
13. Ebrahim made grievance only against the orders of arrest, the petitioners caring little about the sales of their mortgaged properties, evidently, knowingly well enough that next to nothing would come out of them. It was pathectic when Mr. Abdul Samad Dogar, the respondent's learned counsel, urged that the petitioners were running a flourishing business at the unit sold to them against public money and yet recovery remained as far away as at the outset, when a bad finance was advanced. Apparently, in spite of issuance of warrants, the two relevant petitioners have not yet been arrested. Can in these circumstances any relief be accorded to the petitioners. We are afraid none.
14. ' Still, we would consider the contentions of Mr. Fakhruddin, for the petitioners, on merits. It is acknowledged that Section 18(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, applies and, amongst other law, the Code of Civil Procedure, 1908, may be invoked by the executing Court. Such sub-section and corresponding provisions of the Code are as under:-- Section 18 (1)
15. "18. Execution of Decree.---(1) the Banking Court shall, on the written application of the decree- holder, forthwith order execution of the decree or order at any time seven days after the passing of the decree or order and, where the decree or order pertains to money, may direct that the amount covered by the decree or order, as the case may be, shall be recovered in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit: It ' Section 51 and Order XXI Rule 37 C.P.C., "51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder order execution of the decree
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.
16. ' Provided that execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied--
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree.--
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or
(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuse or neglects or has refused or neglected to pay the same; or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
17. ' Explanation.---In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account ally property which , by or under any law or custom having the force of law for the time being in force, is exempt from the attachment in execution of the decree."
18. ' Order XXI Rule 37 "37. Discretionary power to permit judgment-debtor to show cause against detention in prison.--(1)
19. Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be detained in prison: ' Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor."
20. It is not clear from the impugned order whether the Banking Court in passing the order, for issuance of warrants of arrest, acted under the Code or under any other applicable law or in the manner it deemed fit, in terms of the last clause finding place in section 18(1) above. Even if we assume, as the petitioner's learned counsel suggested, that it acted under the C.P.C. The order was not unlawful. The conditions of section 51 of the Code would have been attracted only, if the judgment-debtors, in response to notices, had entered appearances. They did not appear and for that reason alone the Presiding Judge could have proceeded in terms of Order XXI, Rule 37(2), which evidently, he did and issued the warrants of arrest.
21. Even otherwise, as already hinted above, there was a residuary power vesting in the Banking Court, per section 18(1) ibid., to order execution "in such other manner" as it may have deemed fit. Resort to such power, if justice of the case so demanded, could legitimately be made and, for all that we know, may have, actually, been made.
22. ' In any view of the matter, the petitioners have no case. These petitions are dismissed and with costs. Let copies of the order be forwarded to the Privatization Commission, the Wafaqi Ombudsman, the Chief Ehtesab Commissioner, and the Secretary, Ministry of Law and Justice, for information and such action, as be found warranted.