' SAEED-UR-REHMAN FARRUKH, J.--- By this judgment we propose to dispose of the following two matters as common questions of law and facts are involved therein:--
(i) Mrs. Mukhtar Hussain and others v. Federation of Pakistan and others Writ Petition No,12172 of 1997 and
(ii) Mian Hamza Shahbaz and others v. Federation of Pakistan and others Writ Petition No,12173 of 1997.
2. The facts, relevant for the determination of these cases are; on 10-11-1994, F.I.R. No,12 of 1994 was registered at Police Station F.I.A./S.I.U., Islamabad under sections 419/420/468/471 and 109, P.P.C.
Read with section 5(2) of Prevention of Corruption Act, 1947 and Article 3 of the Holders of Representative Office (Punishment for Misconduct) Order, 1977, against Mukhtar Hussain and 4 others, Directors Hudabiya Engineering (Pvt.) Ltd. Challan, after investigation, has since been filed before Special Court constituted under section 3 of Offences in Respect of Banks (Special Courts)
Ordinance, 1984, hereinafter called "Special Courts".
' In the final report under section 173, Cr.P.C. The offences with which the accused are charged are under section 419/420/468/471 read with section 109, P.P.C. Remaining offences i,e, section 5 of Act II of 1947 and Article 3 of Presidential Order No,16 of 1977 have been dropped.
' The allegations in the F.I.R. Are that on 26-8-1993, two fake accounts were opened each in the name of Suleman Zia and Muhammad Ramzan in the Habib Bank, A.G. Zurich, Lahore with small amounts and subsequently both were "issued" Dollar Bearer Certificates worth U.S. Dollars 7,50,000 by the Union Bank Ltd. Against cash receipt of Travellers Cheques encased through American Express, New York. Allegedly the amount from these accounts was transferred to an account in the name of Kashif Masood Zia at the Bank of America, Lahore. Later on another account was opened in the name of Mrs. Nuzhat Gohar Qazi in the Bank of America, Lahore and an amount of about .05 million U.S. Dollars was also transferred from her account to the account of the above named persons. All these accounts were allegedly found to be fictitious.
' Against the petitioners, the allegation is that they, in collaboration with the officials of Habib Bank A.G. Zurich, Lahore and Bank of America, Lahore under the influence of Mian Nawaz Sharif, present Prime Minister of Pakistan, managed to draw, by opening three fake accounts, an amount of Rs,60 million by raising loan against the account of Kashif Masood Qazi. It was alleged that it was the petitioners' black money which was fraudulently utilized by them, to procure "further" wrongful gains".
' In Writ Petition No,12173 of 1997, the allegations levelled in the F.I.R. Registered at Police Station F.I.A./S.I.U.,. Islamabad under section 419/420/468/471, P.P.C., section 5 of Act 2 of 1947 and Article 3 of Presidential Order No,16 of 1977 are that two fake accounts were opened in the names of Muhammad Ramzan and Asghar Ali in Habib Bank A.G. Zurich by depositing traveller cheques amounting to U.S. Dollars 2 million cash in these accounts, and on the request of the account- holders they were issued Dollar Bearer Certificates for the above two amounts. Subsequently, another "fake" account was opened in Citi Bank, Lahore in the name of one Mrs. Sikandar Masood Qazi by depositing Dollar Bearer Certificate amounting to U.S. Dollars 150 million. Later on D.B.C. For another amount of U.S. Dollars 1 million were also deposited in her account.
' Further allegation is that Citi Bank, Karachi created a loan of Rs,40 millions in favors of Messrs Hudabiya Paper Mills against the deposit of account of Sikandara Masood Qazi against "weak/inadequate security", which loan is still outstanding. Allegedly, during inquiry none of the above named account-holders could be traced out at the given addresses. Against the petitioners, the allegation was that they, with the blessing of Mian Nawaz Sharif, have not only indulged in money laundering but also cheated the Government.
' During the course of investigation, charges under section 5 of Prevention of Corruption Act (II of 1947) and Article 3 of Presidential Order No,16 of 1997 were dropped and Chillan was submitted before the "Special Court" for the remaining offences, as mentioned in the F.I.R.
3. To complete the narration of the history of the litigation, two write petitions were filed by the petitioners, in both these matters, before the Rawalpindi Bench of this Court seeking abashment of the two F.I.Rs,; (i) Writ Petition No,1361 of 1994-F.I.R. No,12 and (ii), Writ Petition No,1362 of 1994-F.I.R.
No,13.
' Two bail applications were also filed; (i) Criminal Miscellaneous No,846/B of 1994 converted into Writ Petition No,1376 of 1994 and (ii) Criminal Miscellaneous No,847/B of 1994 converted into Writ Petition No,1377 of 1994. All these writ petitions were dismissed by a Division Bench of this Court on 28-12-1994 vide judgment report as Mian Muhammad Abbas Sharif and 2 others v. Federation of Pakistan through Secretary, Ministery of Interior and 2 others 1995 PCr.LI 1224.
' Another writ petition (Writ Petition No,14532 of 1994) was filed at the Principal seat seeking a direction to the investigating agency to refrain from taking any proceedings under the aforementioned two F.I.Rs, This writ petition was dismissed by a learned Single Judge of this Court vide judgment, dated 19-12-1994. Presently, I.-C.A. No,16 of 1995 against this judgment is pending adjudication. It was earlier listed for hearing before a Full Bench of this Court, comprising the Honourable Chief Justice, Justice Asif Jan and Justice Saeed-ur-Rehman Farrukh.
' Later on, the honorable Chief Justice directed the enlargement of the said Bench and now, as per orders, a Bench of five Judges, is to be constituted by including Justice Malik Muhammad Qayyum and Justice Raja Muhammad Khurshid, therein. Date of hearing has not been fixed so far.
4. In both these Constitutional petitions the prayer made by the petitioners is for saving them from the agony of the trials, "which in any event would be an exercise of futility".
5. We questioned the learned counsel for the petitioners as to why the petitioners have approached this Court direct and not appeared before the learned "Special Court" with a petition under section 265-K of the Code of Criminal Procedure for grant of relief about their acquittal. His reply was that the "Special Court" is presently non-functional, as a sitting Judge of this Court (Mr. Justice Khalid Paul Khawaja) has been notified and appointed as Presiding Officer of the said Court but only bail applications are being dealt with and that too only on one day in a week and trial of cases is not taking place at all. According to him this situation would continue to prevail till the Honourable Judge retires from High Court and assumes the office of the Presiding Officer of "Special Court" on whole time basis. Thus, it is urged that, presently the petitioners are left with no other alternate remedy except to invoke the writ jurisdiction of this Court.
We find force in this contention in that the factual position as asserted is correct. At the present moment the petitioners are indeed handicapped due to the above situation and cannot thus, seek any relief from the "Special Court". Consequently, we are inclined to dispose of these writ petitions on merits.
6. We have heard Mr. Ashtar Ausaf Ali, Advocate, learned counsel for the petitioners in both the cases, Kh. Saeed-uz-Zaffar, learned Deputy Attorney-General for Pakistan. We have also gone through the record of both the Chillan cases and also the police files.
7. It is submitted by Mr. Ashtar Ausaf Ali, Advocate, that the present petitions merit acceptance both on jurisdictional as well as factual planes. He has also made submissions on the maintainability of these petitions in view of the decisions of the earlier writ petitions on the subject, referred to hereinbefore.
As regards the earlier writ petitions filed by the petitioners, it is pointed out that these were instituted at a point of time when the matters were under investigation and the relief sought for in those writ petitions was mainly for quashment of the F.I.Rs, How the investigations have been crystalized into final challan reports under section 173, Cr.P.C. And the prosecution has placed all its cards before the "Special Court". A drastic change in the situation has been brought about justifying the filing of the present writ petitions seeking wherein a prayer for acquittal is made.
These cannot be thrown out on the ground of dismissal of the earlier writ petitions.
' As regards the I.-C.A. Presently pending, his submission is' that it would be pressed only to the extent of the decision of the learned Single Judge with regard to the interpretation placed by him on the relevant law, regarding immunity available to the foreign exchange accounts under Economic Reforms Act (XIII of 1992).
8. On the question of jurisdiction the plea raised by learned counsel for the petitioners is that the F.I.A. Had no authority to register these case. It is argued that these are admittedly foreign currency accounts, opened in private banks in the names of private persons against which private limited companies have availed of loan facilities. The transactions in question had nothing to do with the Federal Government at any stage whatsoever and, thus, F.I.A. Could not poke therein and no criminal cases could be registered by it. According to him the entire exercise starting with the registration of the cases and ending with the submission of Chillan is Coram non juice which merits to be quashed by issuing an appropriate order/direction under Article 199 of the Constitution read with section 561-A, Cr.P.C.
9. It is argued that even on merits, no offence whatsoever, from perusal of the challan reports, is made out necessitating the trials of the petitioners as same would be an exercise in futility. It is argued that no wrongful loss has been caused to any person nor any wrongful gain has accrued to any one of the petitioners on account of alleged opening of "fake accounts". The banks and/or account-holders not come forward to lodge a complaint. The reason is obvious as they have not been cheated in any manner, and therefore, no offence under section 420, P.P.C. Is made out.
Likewise offences under sections 468 and 471 are also not made out as the element of causing damage or injury to the public or any person is missing.
10. We find force in the contention of the learned counsel for the petitioners that despite the dismissal of the earlier writ petitions the present writ petitions are competent. Those writ petitions were filed at the initial stage of investigation of the cases and were dismissed on the ground that the prosecution was yet to collect incriminating material, if any, against the accused. Now after thorough investigation the Investigating Agency has formulated the final challan reports and submitted the same before the "Special Court" the petitioners are entitled to seek quashment of the cases against them and ordered to be acquitted on proving to the satisfaction of this Court that the challan reports have been filed before the "Special Court", unauthorized, and/or no offences on the face of these reports under section 173, Cr.P.C. Can be said to have been made out.
11. Federal Investigating Agency was established under section 3 of the Federal Investigation Agency Act of 1974. The agency can investigate into the offence as given in the schedule attached to the Act, only in those cases, where the offences are alleged to have been committed by a public servant as defined in section 21 of P.P.C. Or those offences are allegedly committed in connection with matters pertaining to the Federal Government, or the same are committed by the employees of the Corporation set up, controlled and administered by the Federal Government. This position of law is well-established through number of reported judgments. We may quote few out of them as under:--
(i) Abdul Razzaq and 2 others v. Pakistan Agricultural and Storage and Service Corporation Ltd. 1992 PCr.LJ 1884,
(ii) Akhtar Ali and 2 others v. Assistant Director 1990 ALD 28(1),
(iii) Javed Iqbal and 2 others v. Federal Investigation Agency and 3 others PLD 1986 Lah.
42.
12. In the instant cases, undisputedly, neither any employee of Federal Government nor of any Corporation created, controlled or administered by the Federal Government is involved. The alleged offences cannot be said to have been committed in connection with the matters concerning the Federal Government. The allegations against private persons of allegedly opening foreign exchange accounts in foreign banks, against which certain amounts were taken as loan by direction of private limited companies cannot, by an stretch of reasoning, attract the jurisdiction and authority of F.I.A. So as to enable it to register cases in respect thereof. The investigations by the agency and submission of Chillan in Court are clearly without jurisdiction.
' It is welt-settled that if the action regarding registration of a criminal case is demonstrated/proved to be without jurisdiction the same can be legitimately quashed. See case of Haji Muhammad Youssef v. M. Abbas Khan and others PLD 1968 Lah.
482.
13. We have carefully perused the judgments delivered in the earlier writ petitions referred to hereinbefore, and find that the question of jurisdiction of F.I.A. To register these cases was neither agitated nor adjudicated upon.
' On this short ground alone the petitioners are held entitled to the relief prayed for.
14. That is not all. We also find force in the contention of the learned counsel for the petitioners that on the face of the allegations in the final reports under section 173, Cr.P.C., no offence is made out.
No wrongful loss has been caused to any one and none has been wrongfully benefitted. Element of cheating is totally missing. The question of commission of forgery also did not arise as neither the banks nor the account-holders who could be said to have suffered damage or injury, as a result thereof, have come forward to make a complaint.
' As regards impersonation and opening of "fake accounts" we pertinently asked the learned Deputy Attorney-General to show us evidence/material, if any, available in the Chillan files in support thereof. He failed to do so. On the contrary, he informed us that as a result of investigation, carried out by F.I.A. It has transpired, that all those persons, in whose names the accounts in question were opened, are alive and in existence; while Suleman Zia is a resident of Essex, London, the others are Pakistani Nationals, living in the country.
' About Suleman Zia, he showed us page 115 of the police file, (letter from Consular Section, British High Commission, Islamabad, addressed to Raja Mansoor Elahi, Deputy Director F.I.A), testifying the fact that Suleman Zia was holder of British Passport No,312783-S. Thus, allegation of opening of fake accounts in the names of non-existant persons is also to be treated to be groundless.
15. We are fully convinced that baseless cases were foisted upon the petitioners by an agency (F.I.A.) which otherwise too, had no legal authority to do so. These cases were registered 3 years ago, during which period considerable harassment, tension and ignominy was unduly suffered by the petitioners. Further prolongation of their agony would be clear denial of justice to them, besides waste of public time and money in the useless trials.
' The powers of High Court to quash the criminal case in exercise of Article 199 of Constitution where its very initiation is without jurisdiction stands established in Haji Muhammad Yousaf's case (supra). Likewise High Court has ample authority to intervene under section 561-A, Cr.P.C. As has been laid down authoritatively by their Lordships of Supreme Court in Asif Ali Zardari's case 1994 SCM R 798. Following passage from the judgment is being reproduced with profound respect:-- "Section 561-A, Cr.P.C. Confers upon High Court inherent powers to make such orders as may be necessary to give effect of any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. Unless Trial Court exercises its power under section 249-A or 265-K, Cr.P.C. Which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. In exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. Without waiting for Trial Court to pass orders under section 249-A or 265-K, Cr.P.C. If the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice." (underlining is ours).
16. Drawing strength from the above two precedents, we accept both the IT petitions and in exercise of our power under Article 199 of the Constitution read with section 561-A, Cr.P.C. Quash the Chillan cases, under reference, against I/ the petitioners, and acquit them.
' Through two short orders, dated 27-5-1997 the petitions were accepted. The above are the reasons therefor.