' On 23-4-2003 Dr. Zakia Akbar complainant laid information vide an application addressed to the S.P. (City), Rawalpindi, that she had rented a locker in the Habib Bank Limited PAF Branch, Chaklala bearing No,233 and she had been operating it from time to time and this operation was conducted in the supervision of the petitioner. Last time she operated the lock either in December, 2002 or February, 2003 and she entertained a doubt that the petitioner has the duplicate key. She reported the matter but no heed was paid. On 19-4-2003 at 11-30 a.m. She went to the bank alongwith her husband so as to take out some gold ornaments for use in a marriage ceremony. She signed the relevant form in the presence of a lady officer who had the bank's key to the locker: However, the petitioner came there and took the keys from the said officer and proceeded to the locker room. He returned after two minutes and told her that she can proceed to the locker room. When she reached the Locker No,233 she found that the locker was opened. She checked up and found the locker to be empty. She went to the petitioner and told him that the locker is empty whereas ornaments worth Rs,3,50,000 and Prize Bonds worth Rs,2,00,000 were lying therein which were not present. The petitioner gave a smile and expressed ignorance. The complainant accused the petitioner of the said occurrence and told him that she will get a case lodged, whereupon the petitioner responded that she may go ahead and that he will state that the spouses have a dispute and one of the two must have removed the said valuables. The complainant.Opined that the said reply of the petitioner gives the indication that he is guilty and the other staff is also involved. She further stated that upon her complaint, the Manger himself went to check the locker and it was admitted that it is tampered and it can be opened only with one key. Regarding the delay in the filing of the report she stated that she wanted to proceed at once but the Bank Manager asked her to give him an application whereupon he will conduct the proceedings but he is dilly delaying. Initially, a case under section 409, P.P.C. Was registered against the petitioner vide F.I.R. No,204 at Police Station Waris Khan Rawalpindi. The petitioner filed an application for bail before arrest before the learned Special Judge (Central), Rawalpindi. A notice was issued and interim bail was granted. Vide order, dated 13-5-2003 the learned Special Judge (Central) observed that the case falls within the exclusive jurisdiction of the Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984. He accordingly directed the petitioner to file an application in the said Court upto 20-5-2003 and meanwhile extended the interim bail.
2. Present criminal miscellaneous came up before this Court on 21-5-2003 when notice was issued and interim bail was allowed to the petitioner. On 19-6-2003 the Police Officer present stated with reference to his record that the charge under section 409, P.P.C. Has been dropped and substituted by section 380, P.P.C. The petitioner applied for amendment of the present application and an amended application was accordingly filed.
3. Learned counsel for the petitioner and for the complainant, in the first instance, proceeded to argue the case on its merits for grant of pre-arrest bail. However, they were confronted with the order passed by the learned Special Judge (Central) and called upon to argue as to before which forum the application for the relief being sought for by the petitioner would lie. Messrs Sardar Asmat Ullah Khan and Taufiq Asif had argued that since the offence does not relate to the business of the bank, the Special Court under the said Ordinance, 1984, would not be having the jurisdiction.
Sardar Muhammad Ashfaq Abbasi, Advocate, for the complainant, on the other hand, argues with reference to the case of M.A. Rashid v. The State 1996 PCr.LJ 1279 that only the said Court has the jurisdiction as section 380, P.P.C. Stands mentioned in the First Schedule to the said Ordinance of 1984.
4. I have examined this file with the assistance of the learned counsel for the said parties and the learned counsel for the State. Now so far as the said case of M.A. Rashid is concerned, I find that a learned Division Bench of this Court considered the scope of section 5(6) of the said Ordinance, 1984, with reference to section 497, Cr.P.C. In the matter of grant of bail. According to the said judgment the case was registered on the written complaint of the Managing Director of a Bank against the petitioner therein who was an employee thereof and the allegation was that he has misappropriated the furniture, etc. Provided to him by the bank as he did not return the same or paid its book value after his retirement. Another allegation was regarding the withdrawal of amount from an account which was attached by the order of the Deputy Registrar Cooperatives, Lahore. I find that the question as to whether or not the offence constitutes a schedule offence within the meaning of the said Ordinance, 1984 did not arise at all in the said case. However, I have been able to dig out a Division Bench judgment of the High Court of Sindh at Karachi in the case of Ali Hussain and 2 others v. Presiding Officer, Special Court for Offences in Respect of Banks, Karachi and 3 others PLD 1989 Kar. 157 where the question did arise. The Honourable Chief Justice Ajmal Mian (as his Lordship then was) observed as follows in para. 4 of the judgment at pages 161 and 162 of the report:--
5. "4. Adverting to the main contention of the learned counsel for the parties whether the alleged offences fall within the definition of the schedule offence given in section 2(d) of the Ordinance, it may be pertinent to reproduce the same, which reads as follows:-- 2(d) 'schedule offence' means an offence specified in the First Schedule and alleged to have been committed in respect of, or in connection with the business of a Bank.'
' A perusal of the above-quoted definition of the scheduled offence indicates that there are two ingredients which should be present in order to make an offence as a schedule offence, namely (i) that the offence should be specified in the First Schedule to the Ordinance, and (ii) the offence should have been committed in respect of or in connection with the business of a Bank. If either of the above two ingredients is missing in a case, the Special Court has no jurisdiction."
' Now the said observations appear to be in accord with letter of the statute reproduced by their Lordships as noted above. Applying the said test to the facts narrated in the said F.I.R. And some attending circumstances of this case, it will appear that the locker had been rented out by the Bank to the complainant lady. The property lying in the locker belongs to the complainant. The Bank had not undertaken any obligation regarding the safe keeping of the goods lying in the locker. The bank and for that matter prima facie the petitioner, the employee of the bank could not have the knowledge of the contents of the locker. No loss has been caused to the bank and of course the bank has not come forward with any allegation against the petitioner. The precise allegation in the F.I.R. Is that because of the alleged act of the petitioner, the complainant has been deprived of her personal property. This being so, the contents of the F.I.R. Do not constitute a schedule offence as defined in section 2(d) of the said Ordinance of 1984 and the learned Special Court appointed under the said Ordinance, 1984, would not be havig the jurisdiction in the matter.
5. This criminal miscellaneous is accordingly disposed of with the direction that the petitioner to appear before the learned Sessions Judge, Rawalpindi, on or before 10-9-2003 with an appropriate application for the grant of the said relief, which application, if filed, shall be decided in accordance with law after hearing all concerned. The interim bail granted to the petitioner vide order, dated 21- 5-2003 shall stand vacated and withdrawn on 10-9-2003.