IJAZ-UL-HASSAN, J.---This writ petition filed by Qaiser Amin Khwaja and Sabir Hussain, Chief Manager and Cashier respectively, Indus, Bank Limited, F.C. Plaza, Peshawar Cantt. Under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has arisen in the following circumstances: A fraud/embezzlement to the tune of Rs.63,20,000 was detected in the aforesaid Branch of Indus Bank during the period commencing from April, 1996 to October, 1997. An inquiry was conducted internally in the matter and it was concluded that the embezzlement has been committed by Raheel Ahmad, and Amir Zeb, employees of the Bank. Consequent thereto, petitioner No.1 in his capacity as Chief Manager and also holder of special power of attorney of the said bank. Filed Criminal Complaint bearing No.1 or 1999 on 18-5-1999 under section 5(1), Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) whereby besides the above mentioned two accused, the accounts holders in whose accounts the fraud had been committed (seven in number) were charged. Taking cognizance of the offence under the relevant provisions of scheduled Law, learned Special Judge, seized of the matter, examined the petitioners under section 200, Cr.P.C. And thereafter marked the complaint to F.I.A. C.B.C, for inquiry which was completed vide report dated 26-6-1999. On perusal of the inquiry report, learned Court observed vide order sheet dated 26-6- 1999 that report is not sufficient and satisfactory and directed the F.I.A., C.B.C. To further probe into the matter, and besides the criminal complaint, to register a criminal case wherein, in addition to the accused in the complaint, Bank Officials found involved in the offence be charged. In the meanwhile, the trial Judge proceeded with criminal complaint. Following the order of the Court dated 26-6-1999, the F.I.A., C.B.C. Registered criminal case vide F.I.R. No.21 of 1999 dated 1-9-1999 wherein none from the bank officials was charged. The learned Judge once again directed the F.I.A., C.B.C. Vide the impugned order dated 18-11-1999 that names of the petitioners together with Tariq Khan, Legal Adviser of Indus Bank, be added as accused in the F.I.R. And challan submitted accordingly, after completion of necessary inquiry/ investigation. Before such challan could be submitted pursuant to Court order, the learned Judge proceeded suo motu against the petitioners treating them as accused and asked from them to furnish necessary bail bonds with further direction to the F.I.A., C.B.C. Vide order dated 13-1-2000, requiring the prosecution to submit complete challan in Court before the date fixed i.e. 2-2-2000.
2. The petitioners feeling aggrieved of the orders dated 26-6-1999 and 18-11-1999 have approached this Court by filing instant writ petition with prayer that the aforesaid orders be set aside and F.I.R.
No.21 of dated 1-9-1999 be quashed.
3. We have heard at length Mr. R. Badshah Khattak, Advocate for the petitioners and Mr. Salahuddin Khan, Deputy Attorney-- General for the State in the light of the material on file.
4. In order to appreciate the arguments addressed before us, we consider it appropriate to reproduce below the relevant portions of the impugned orders dated 26-6-1999 and 18-11-1999, which read:-- "From the perusal of inquiry report and statements of accused, submitted by Inquiry Officer, it reveals that in the present case, other officers of the bank are also involved and the offence has been committed with connivance and collaboration of other culprits. Though the Inquiry Officer has conducted the inquiry but it is incomplete and has not been conducted properly and apart from the present complaint, a case against the respondent culprit be registered, if in the process of investigation, it is found that they are involved in the case. "
"As it is held by superior Courts that the omission on the part of police or the investigating agency, cannot affect the jurisdiction of the Court to pass an appropriate order to summon any person as accused. It does not limit the jurisdiction of the Court to try only those accused persons whose names have been mentioned in Column No.2 or 3 of challan or in the complaint. This court is at liberty to summon any person appearing to involve in an offence irrespective of the fact whether his name is mentioned as accused in complaint or finds mention in Column 2 or 3 of challan or not ... On taking cognizance, the Court acquires jurisdiction over all the persons involved and not only over persons against whom challan is submitted ..... Thus keeping in view the facts and circumstances of the case in order to go in the deep merit and appreciate the case, it is necessary that other responsible officials should also be involved as accused in this case. Therefore, it is ordered that names of Chief Manager, Qaiser Amin, Legal Adviser Tariq Khan and Cashier Sabir Hussain, be included in the list of accused..... F.I.A., C.B.C. Is directed to complete the investigation in the case in F.I.R. No.21 of 1999 dated 1-9-1999 and submit the complete challan in this Court immediately so that the Court may be able to take the cognizance of that case and commence the trial.
5. Having considered the submissions of learned counsel for the parties with reference to the law on the point, we find ourselves in agreement with learned counsel for the petitioners that the impugned orders are patently illegal and void and cannot be allowed to remain intact. The Special Judge, as rightly urged, has to follow provisions contained in the special law which is distinct from general law viz. Cr.P.C. Section 5(1) of the Offences in Respect of Banks Ordinance, 1984 does not vest the Court with suo motu power as contained in section 190(1)(c), Cr.P.C. Relating to initiation of prosecution proceedings based upon the knowledge of the learned Judge, Special Court. The learned Judge has no jurisdiction to control the investigating agency concerned so as to specify its direction specially in terms of inclusion or exclusion of persons in the criminal challan. We could not lay our hands on any provision of law under which the Court is empowered to direct the investigation of the case. Needless to mention that the Court, where it appears that the prosecution has not conducted the investigation honestly and fairly, can always express its displeasure and make remarks or direct the initiation of disciplinary action against those found guilty of dereliction in performance of their duties. It is contended with justification that learned Special Judge has no jurisdiction to make an order for a fresh investigation. It is the job of the prosecution to reinvestigate the case if it is so desired. The learned Judge was not competent to order reinvestigation of the case or direct the prosecution to submit supplementary challan or induct the petitioner in the arena of accused persons. In Naseebullah Khan and another v. The State PLD 1986 Karachi 417 it was observed:-- "Needless to mention again that both appellants, who have been convicted and sentenced by the trial Court were not named in F.I.R. Or in challan as accused persons but subsequently during the proceedings in the trial Court were joined as accused persons on suspicion of their involvement in the case. Action of the trial Court in joining these persons in the trial proceedings, as co-accused purports to have been taken under section 351, Cr.P.C. Which empowers the Court to detain any person who attends a Criminal Court although not under arrest or upon a summons, for the purpose of enquiry into or trial of any offence of which the Court can take cognizance. Subsection
(2) of section 351, Cr.P.C. Further provides that when the detention takes place, after trial has commenced, proceedings in respect of such person shall be commenced afresh and the witnesses are to be reheard. Since the trial Court is Special Court constituted under the provisions of Offences in Respect of Banks Ordinance, 1984, it is empowered under section 5(8) thereof to follow the procedure prescribed by the Code for trial of cases by Magistrates, where no such procedure has been prescribed in the said Ordinance. If section 351(A), Cr.P.C. Is read very carefully, it would appear beyond doubt that action thereunder is closely connected with and separable from 'section 190, Cr.P.C. Which empowers the Magistrates to take cognizance of offences. In this very context of taking cognizance of offences, section 5(1) of the said Ordinance empowers Special Court set up under that Ordinance to take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any Police Officer. In the Ordinance, therefore, scope for taking cognizance is specifically provided for the Special Court, hence only this provision is to be acted upon and not section 190, Cr.P.C. Criminal Procedure Code shall apply only where, special law is silent and does not contain , specific powers or procedure.. Now if comparative study is made of section 190, Cr.P.C. And section 5(1) of the said Ordinance, it will appear that under the former cognizance can be taken by the Magistrate in three different ways. Firstly as provided in subsection (1)(a) upon receiving a complaint of facts which constitute such offence, secondly, as provided in (b) upon a repot in writing of such facts made by any Police Officer and thirdly, as provided in (c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion that such offence has been committed. Now we turn to section 5(1) of the said Ordinance which empowers Special Court to take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any Police Officer, powers specifically given to Special Court are fully covered by paragraphs (a) and
(b) of section 190(1), Cr.P.C. As stated above and paragraph (c) thereof has been omitted in- the said Ordinance, which fact is very obvious on the face of it. The intention of the Legislature is, therefore, very clear that on the Special Court the said Ordinance has conferred powers of taking cognizance only in case of a direct complaint and report by Police and the third mode of cognizance covered by paragraph (c) of section 190(1), Cr.P.C. Relating to taking cognizance upon information received from any person other than Police Officer or upon his own knowledge or suspicion-that such offence has been committed, which is akin to suo motu powers, has been purposely omitted. It is, therefore, crystal clear that Special Court under the said Ordinance cannot take cognizance on its own upon information received from any person other than Police Officer or upon its own knowledge or suspicion that there is a direct complaint or a report from Police. In the instant case the two appellants before us were not named as accused in the challan submitted by the Police, nor there was a direct complaint in respect of them as such the, Special Court was not empowered under the law to take action under section 190(1)(c), Cr.P.C., which is not included in the powers specifically spelt out for taking cognizance in section 5(1) of the said Ordinance.
6. Having held that the learned Special Judge was not competent to order reinvestigation of the case or direct the prosecution to submit supplementary challan or induct .The petitioners in the arena of accused persons, we are constrained to accept this writ petition, set aside the impugned orders and quash F.I.R. No.21 of 1999 dated 1-9-1999 subject to the condition that the complainant, shall be at liberty to file proper complaint, if so desired, which would be decided on its own merits.
The record be sent back to the Court concerned immediately.