' This judgment shall dispose of Writ Petition No, 19990 of 1998 filed by Shahbazud-Din and 3 others and Writ Petition No, 19992 of 1998 filed by Shahbaz-ud-Din Chaudhry and another.
2. In Writ Petition No, 19990 of 1998 quashment of the case registered by the F.I.A. Vide F.I.R. No,1124, dated 22-9-1998 is sought whereas in Writ Petition No,19992 of 1998, it is prayed that the F.I.A. Be directed not to inquire into the matter which is subject-matter of case F.I.R. No,190 of 1997, dated 1- 7-1997 registered with Police Station, Garden Town, Lahore under section 406, P.P.C.
3. Facts giving rise to the filing of the afore refered petitions are that petitioners obtained a loan of rupees one crore and seven lacs from Hajveri Modarba by mortgaging some property. They obtained another loan from Crescent Modarba by pledging the same property which already stood pledged with Hajveri Modarba by misrepresentation and allegedly by tendering forged share certificates. Relevant portion of the F.I.R. Read as under:--- "As a collateral, Mr. Shahbazuddin Chaudhry son of Mr. Allah Ditta, Mr. Tariq Shahbaz Chaudhry son of Mr. Shahbazuddin Chaudhry, Mr. Khalid Shahbaz Chaudhry son of Mr. Shahbazuddin Chaudhry, Mr. Ijaz Rasool Chaudhry son of Mr. Ghulam Rasool and Mst. Sardar Bibi wife of Mr. Shahbazuddin Chaudhry Directors/Sponsors of S.T.L., all residents of 1-Green .Villas, 69-FCC Road, Lahore (Gulberg-4) pledged 1,200,000 shares of STL and 930900 shares of Kaytex Mills Ltd. (KML) bearing Distinctive Nos. 450021, 4620020 2184923, 2384922, 2693251, 3593250, 521001-640000, 400001- 460300-460501 -521000 , 866001- 1051400, 1181401-1320900, 1320901-1471400 and 15714011786900 with the complaint and delivered the original share Certificates along with verified transfer deeds to the complainant. Copies of the pledged agreements are attached.
' Later on the complainant received letter, dated November 6, 1993 and October 12, 1994 from Crescent Modaraba Management. Company Limited and their Elite Capital Modarba (FECM) respectively, informing the complainant that out of the above shares following shares of S.T.L. Had also been pledged with them as collateral for Modaraba facility allowed by FECM. Copies of the said letters from CEM are enclosed.
Name of shareholderDistinctive Nos. No. of share Mst. Sardar Bibi 2993251-3093250100 2893251-2993250100 2793251-2893250100 2693251-2793250100 ' That the abovementioned persons amongst themselves manipulated the issue of two sets of these share certificates and transfer deeds and used them twice as collateral for facility obtained from the complainant as well as from FECM.
' That they colluded amongst themselves in manipulating the issue of above said share certificates in two sets with mala fide intentions of using them fraudulently as collateral for two independent transactions.
' That they misrepresented to the complainant that these share certificates and transfer deeds were free from encumbrances and in this way wrongly and wilfully induced the complainant to believe that they were good collateral though the same were also being deceitfully used by them as a collateral for facility from the above said FECM.
' That their company secretary also colluded with them in issuing two sets of share certificates as well as transfer deeds for the above said share certificates, thus, facilitating the use of these share certificates in two independent transactions. In addition the above said Directors of S.T.L. Also hypothecated yarn valuing Rs,13,499,970 (detail as per enclosed copy of hypothecation letter, dated September 8, 1993) as additional collateral which they also sold off unauthorisedly and misappropriated its proceeds. In this way they were also guilty of abusing the property (i,e, stocks of yarn held by them in trust on behalf of the complainant. That all the above persons colluded amongst themselves in the issue of two sets share certificates, two sets of transfer deeds and wrongly and deceitfully placing them under pledge for securing two independent transactions and also disposed of trust property (hypothecated yarn valuing Rs,13,499,970) unlawfully which amount to criminal breach of trust misrepresentation, misappropriation and fraud may kindly be registered against the above persons."
5. Learned counsel for the petitioners has sought quashment of the case registered on following grounds:---
(i) That the F. I. A. Has no jurisdiction to entertain a complaint of the kind referred to above and to register a case as the subject-matter of the F.I.R. Does not fall within the ambit of the F.I.A. Act, 1974 which in its preamble inter alia stipulate that the Federal Investigating Agency was created, 'for the investigation of certain offences committed in connection with matters concerning the Federal Government and for matters connected therewith.' Learned counsel contended that it was a private loaning company which advanced loan to the petitioner and it had nothing to do with the Federal Government. He relied on an unreported judgment passed by a Full Bench of this Court in Writ Petition No, 12172 of 1997 to contend that this issue has already been settled by this Court and the judgment is binding. Referring to a case reported in PLD 1998 Lahore 287 (passed by me), learned counsel submitted that certain important observations made in the Full Bench Judgment referred to above, escaped the notice of this Court in the afore-referred judgment.
(ii) Learned counsel for the petitioners further submitted that no fraud or forgery was committed by the petitioner. The loan was originally sanctioned on 8-9-1993, the petitioners pledged 12 lacs shares out of which 9 lacs shares belonged to one Sardar Bibi; that the loan which was payable within one year, was not paid. However, it was rescheduled on 22-9-1994 and irregularity if any was cured as four lacs shares of Sardar Bibi which already stood pledged with another loaning company as those shares were substituted with those of Tariq Shahbaz Chaudhry. Hence, the petitioner had bonafidely furnished the new security. Further added that since the loan was not paid in time, the complainant loaning company filed suit for recovery which is pending decision and the matter being civil in nature cannot be made subject-matter of Criminal Case.
6. Learned Deputy Attorney-General, has opposed the petition and has made following submissions:---
(i) That the petitioner is a fugitive to law as after the submission of the report under section 173, Cr.P.C. In the Court concerned, petitioner did not appear and he has been declared proclaimed offender. Moreover, despite the order of this Court to appear personally, he has not chosen to appear. In these circumstances and in view of the law laid down in PLD 1969 SC 89, learned D.A.-G.
Submitted that the petition merits dismissal on this short score alone;
(ii) That the Crescent Modarba is a banking company within the Banking Companies, Recovery of Loans Ordinance, 1994; that the offence having been committed with regard to a Bank is amenable to the jurisdiction of Federal Investigating Agency as the Bank is a financial institution whose affairs are regulated by the Federal Government, Ministry of Finance, through State Bank of Pakistan and secondly because in the schedule attached with the F.I.A. Act, cases under the Banking Companies Ordinance, are to be investigated by the F.I.A.
(iii) Coming to the factual aspect, learned Deputy Attorney-General, submitted that petitioners obtained loan from Crescent Modaraba, original shares of Sardar Bibi were deposited with the said Modarba which is a subsidiary of 1st Elite Modarba. After some time, petitioners got printed fake original share certificates referred to above, deposited the same with Hajveri Modarba and obtained loan. Hence according to him, a criminal offence is made out.
(iv) That the petitioner has committed yet another offence i,e, he has sold out the property which had been hypothecated with the Bank.
(v) Learned Deputy Attorney-General, lastly contended that the F.I.A. Being a specialized Investigating Agency, has got the requisite experience and expertise to register and investigate cases of commercial nature. So far as Writ Petition No,19992 of 1998 is concerned, he submitted that since Police of Police ' Station Garden Town, Lahore is seized of the Investigation (F.I.R. No,190 of 1997), the F.I.A. Shall not interfere.
7. Heard. I have given anxious thoughts to the arguments addressed at the Bar.
8. The fundamental question which has been raised in this petition is qua the jurisdiction of the F.I.A.
And interpretation of the expression, "matters concerning the Federal Government and for matters connected therewith" appearing in preamble to the Act. It is a well-established rule of interpretation of statutes that expressions used in an Act should be in accord with the object of the statute and not in derrogation to the same. While interpreting a Statutory provision, the Court is expected to adopt a purposive approach keeping in mind the legislative intent. When the material expressions/words are amenable to more than one constructions, then the background in which a statute is being enacted, the preceding Act sought to be replaced have to be kept in mind and the mischief which is sought to be remedied has to be discerned through a judicious appraisal. In Kani Lal Sur v. Paramnidhi Sadhukhan (AIR 1957 SC 907) at page 910), the importance of purposive approach has been highlighted and it has been laid down that while construing a statute the "mischief rule" has to be kept in view. The afore referred judgment of the Supreme Court of India is based on the famous Heydon's Case (1584) 3 Co Rep 7 a ). Explaining the mischief rule as relied upon in Heydon's case (supra), Francis Bennion in his book "Statutory Interpretation" (1992 Edition) at page 683 comments as under:--- 'That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:---
(1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common law did not provide;
(3) what remedy the parliament hath resolved and appointed to cure the disease of the commonwealth; and
(4) the true reason of the remedy, and then office of all the Judges is always to make such construction as shall:---".
' If we examine the Federal Investigating Agency Act, 1974 (VIII of 1975) (came into effect in January, 1975) in the light of the foregoing rule, we note that it is a successor Act to Pakistan Special Police Establishment, Ordinance, 1948 (VIII of 1948) which Act was repealed by section 10 of. The Federal Investigating Agency Act, 1974. The Preamble of the Pakistan Special Police Establishment Ordinance, 1948 (VIII of 1948) stipulated the purpose of the Ordinance as for the investigation of certain offences committed in connection with matters concerning the Central Government and to make provision for the powers, duties, privileges, liabilities, superintendence and administration of the said force." Section 3 of the said Ordinance, mandated that the Central Government, "by Notification in the official gazette, specify the offences or classes of offences committed in connection with matters concerning the Central Government." This Ordinance did not contain any schedule. The major change which appears to have been brought by enacting F.I.A. Act, 1974 is the addition of a Schedule which contains 131 Sections of Pakistan Penal Code and 38 Acts which cover offences having inter-Provincial ramifications, Anti-Smuggling, Immigration, Bank Frauds, Evasion of Taxes, Currency Racketeering and Dangerous Drugs. On a query, the Court was informed that to achieve the purpose of the Act, the F.I.A has been divided into three wings which are:--- Crime Wing, (ii) Economic Crime Wing and (iii) Immigration and Anti-Smuggling Wing. The Crime Wing deals with offences like corruption, bribery and fraud cases. The Economic Crime Wing and Anti- Smuggling Wings deal with offences committed by the private companies, corporations and autonomous bodies of the Federal Government and has eleven check-posts throughout Pakistan.
The Economic Wing also deals with commercial crimes, relatable to leakage of Government revenues, the offences relatable to State Bank of Pakistan and the scheduled banks etc. The purpose of an Act cannot be discerned from mere recital of the preamble, the whole Act has to be read out to find out the legislative intent. A myopic interpretation of preamble of the Federal Investigating Agency Act, 1974 may suggest that this Act is relatable only to offences which are relatable to the Federal Government. Such a view completely ignores the import of section 3 of the Act and the schedule attached thereto. By addition of such a comprehensive schedule, the legislature wanted to remedy the mischief which was the rather narrow ambit of jurisdiction of the preceding Act. Full import of the Act therefore, cannot be comprehended unless the entire Act and particularly the schedule ' attached thereto is not understood in all its ramifications. In "Maxwell on Interpretation of Statutes" Eleventh Edition by Roy Wilson, I Q.C. And Brain Galpin while commenting on, the relevancy of preamble, for construction of a statute, refers at page 45 to Doe V. Branding (1828) 7 B. & C. 643, 660, per Lord Tenterden wherein it was observed as under:--- "The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the statute. The evil recited is but the motive for legislation; the remedy may both consistently and wisely be extended beyond the cure of that evil, and if on a review of the whole Act, a wider intention than expresses in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble.
' The context of the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it."
8. The preamble of the Act read with section 3, the schedule attached to the Act the structure of the Federal Investigating Agency and the working of the F.I.A. Ever since inception, leaves no manner of doubt that any offence relating to a Banking Company whether owned by Government or Private Bank falls within the jurisdiction of the F.I.A. Act. In an earlier judgment in Asif Saigol and 2 others v.
Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others (PLD 1998 Lah. 287 at page 2931, this Court had taken a similar view and had held , "An analysis of the various provisions of the F.I.A. Act, 1974 Banking Companies Ordinance, 1962 and the State Bank of Pakistan Act, 1956 referred to above, would show that the respondent-bank being a scheduled bank is under the control and supervision of State Bank of Pakistan, and therefore, the Authority of the Federal Government extends to the said Bank. Any offence committed in relation to a scheduled bank, would, therefore, be an offence, 'committed in connection with matters concerning Federal Government and for matters connected therewith,' within the mischief of preamble of the Federal Investigation Agency Act, 1974. In the Schedule attached with the F.I.A. Act besides certain offences under the Pakistan Penal Code offences under the Banking Companies Ordinance are also scheduled offences. In Iftikhar Hussain etc. v. Government of Pakistan etc. PLJ 1996 Lah. 82(DB), the jurisdiction of the F.I.A. To register and investigate a case was challenged, a Division Bench of this Court affirmed the order of the learned Single Judge and observed as under:- ' 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 Investigating Agency Act, 1974. We are, therefore, unable to agree with the learned counsel that F.I.A. Has no jurisdiction in the matter' ."
So far as the arguments that the transaction does not disclose a criminal offence and that a civil suit for recovery has been filed by the Bank are concerned, the same are without force for following reasons:-
(i) A bare reading of the F.I.R. Would show that prima facie documents were fabricated and there was a criminal breach of trust;
(ii) Filing of a recovery suit is a separate issue; this would not negate the offence if the facts make out one.
9. The petitioners are not entitled to the discretionary relief on yet another score i,e, they did not join the investigation. Proceedings under section 87 of the Cr.P.C. Were initiated and they have been declared proclaimed offenders by a Court of competent jurisdiction. Despite repeated orders they did not appear even before this Court. A fugitive to law has no right to audience. The Hon'ble Supreme Court in Gull Hassan and another v. The State PLD (1969 SC 89 at page 93), dismissed the appeal of a fugitive and observed as under:--- "The present is an 'individual case' and, in our opinion, it is an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition that a case---like the present---where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, when he himself engaged in setting that judicial order at naught. We accordingly, dismiss this petition, by reason of its being, in the existing circumstances wholly unsuitable for the exercise of this Court's special jurisdiction in criminal cases."
' For what has been discussed above,) these petitions are dismissed with costs.