IN THE HIGH COURT OF
SINDH, KARACHI
C. Ps. Nos. D- 2641, 2668, 2688 and of 2012
& 4207/2011
Date
of hearing: 12.04.2013
& 17.04.2013.
Petitioners: MCB Bank Limited &
others through Mr. Haider
Waheed, Advocate.
Respondents
4&5: Razzak Latif &
Raheel Latif through Mr.
Manzoor Hameed Arain, Advocates.
Respondents
1&2: Federation of Pakistan
& Federal Investigation Agency through Mr. Jawaid Farooqui, D.A.G. alongwith
Mirza Tanveer Ahmed of FIA
O R D E R
Naimatullah
Phulpoto, J :-- By this single order
we would dispose of aforesaid constitutional petitions as in all petitions
quashment of FIR No.33/2012 dated 05.07.2012 under sections
406/409/468/471/109/34 PPC lodged at P.S. FIA, CBC, Karachi and enquiry in C.P.
No.4207/2011 have been sought.
2. Brief
facts leading to filing of instant Petitions are that the Petitioner No.1 is a
private brokerage firm registered with Karachi Stock Exchange and Securities Exchange
Commission of Pakistan (SECP). The Petitioners are engaged in the business of
trading and brokerage of equities and securities/shares on various Stock
Exchanges of the country and maintain account with CDC in terms of the
provisions of the Central Depository Act 1997. The Respondent No.2 is F.I.A,
which is created for conducting inquiry and investigation in the offences
specified in the Schedule thereto, including an attempt or conspiracy to commit
and abetment of any such offence, but limited to the offences committed in
connection with matters only concerning Federal Government and matters
therewith. Respondent No.3 is Inspector of Commercial Banking Circle working
under the Economic Crime Wing of the Respondent No.2, responsible for
investigation of cases pertaining to pilferage of Government revenue occurring
through evasion of taxes/duties levied by the Federal Government. Respondents
Nos.4 and 5 jointly held an Account No.012-036 with Petitioner No.1 to trade
in shares and securities listed on the Stock Exchange(s) and Central Depository
Company. Furthermore, Respondent No.4 was also a part of the Management and
Board of Directors of the Petitioner No.1 and had provided personal Bank
guarantees for obtaining credit facilities for Petitioner No.1 from Financial
Institutions being Director of the Company. It is alleged that the Petitioner
No.1 availed certain finance facilities from the MCB Bank Limited and Bank
Al-Falah Limited to adjust the debit balance of the Respondents Nos. 4 - 5 and
as security for the finance facilities being availed by the petitioner No.1,
the same created pledge over various book entry securities, from time to time
in accordance with the law. The pledge created over the book entry securities
of the Respondents No.4 and 5 was released by MCB and Bank Al-Falah Limited way
back in the year 2008 and the entire liabilities owed by the Petitioner No.1 to
the said Banks have been repaid since 2010. It is stated that civil disputes
arose between the Respondents Nos. 4 and 5 with the Petitioner No.1 and its
management. On the basis of such disputes, civil suits as well as
constitutional petitions have been filed by the Petitioner No.1 as well as the
Respondents Nos. 4 and 5 against each other, which are pending adjudication. It
is alleged that the Respondent No.4 also filed several frivolous complaints
with the Respondent No.2 whereupon an inquiry No.139/2011 was initiated by the
Respondents Nos. 2 and 3 under the provisions of the FIA Act 1974. The
Respondent No.2 prior to Inquiry No.139/2011 has conducted inquiry pertaining
to the same matter, firstly initiated by Mr. Rashid Qureshi, I.O, in May 2009
and closed thereafter in November 2009. Thereafter, an inquiry was again
re-opened by Mr. Ali Murad I.O pertaining to the said matter in February 2010
and closed subsequently in May 2011. The said inquiry culminated into
registering of FIR No.33/2012 dated 05.07.2012 by the Respondent No.3, it has
been alleged by the Respondent No.3 in the impugned FIR that the Petitioners
Nos. 2–4 and the official/Directors of the Petitioner No.1 were involved in the
commission of the offences. The alleged rationale behind the FIR is that the
Petitioners pledged the book entry securities owned by the Respondent no.4 and
5 available in their Account and also violated Circular No.15/2008 dated 24th
June 2008 issued by the State Bank of Pakistan. It is alleged that conducting
of inquiry and lodging of FIR against the Petitioners are without jurisdiction
and illegal and are therefore liable to be quashed.
3. Notices were
issued to the respondents as well as D.A.G.
4. Comments have been filed by respondents
No.1 to 3, in which allegations of the Petitioners have been denied. It is stated
that F.I.A is
conducting investigation in Crime No.33/2012 u/s 406/409/468 PPC regarding illegal
pledge of shares of Rs.47168594/- owned by Abdul Razak and Raheel Latif in
favour of MCB and Bank Al-Falah Karachi and fraudulently obtained financial
facilities, without knowledge of owners. Interim challan has already been
submitted and Special Court (Offence in respect of Banks) Sindh at Karachi has
exclusive jurisdiction in the matter. It is prayed for dismissal of the instant
petition.
5. Mr. Haider Waheed, learned counsel for
the petitioners contended that dispute between the parties is of civil nature
and civil dispute has been converted to the criminal case against the petitioners
by lodging F.I.R. No.33/2012, under Sections 406/409/468/471/109/34 P.P.C. at
P.S. FIA CBC Karachi. It is further contended that Respondents No.2 and 3 have
no jurisdiction to entertain a complaint filed by Respondents Nos. 4 and 5 in
respect of private dispute with company against Petitioners. It is further
submitted that proceedings would be nothing but abuse of process of law and the
case would not end to conviction. He has placed reliance on the case reported
as Waqar Ali and others v. The State (P L D 2011
Supreme Court 181).
6. Mr. Jawaid Farooqi, D.A.G. argued that civil
and criminal proceedings can proceed simultaneously and FIA has jurisdiction in
the matter to investigate crime in respect of money involved in the commercial
banks. Lastly, it is contended that petition is not maintainable under the law.
7. We have carefully perused the contents of
the F.I.R. No.33/2012 registered at P.S. FIA CBC Karachi on 05.07.2012, under
Sections 406/409/468/471/109/34 P.P.C. and documents available on record.
8. It appears that dispute arose between the
respondents No.4 & 5 with the Company and its management, on the basis of
such dispute various civil as well as constitutional petitions have been filed
which are pending adjudication. It is admitted by learned D.A.G. that dispute
between the parties is of civil nature. In the case of Waqar Ali and
others (supra) Honourable Supreme Court of Pakistan has held as under:
“8. It is clear from
section 3 ibid that in order to constitute an offence thereunder the complaint
must disclose the existence of both, an unlawful act (actus reas) and criminal
intent (mens rea). In view of the allegations and circumstances considered
above, it is apparent that even if it is ultimately established that the
appellants are in occupation of an area owned by the respondent-complainant,
there is no indication that they also had the necessary criminal intent. On the
contrary, the averments in the complaint point in the opposite direction and
show at best, that there is a dispute of a purely civil nature between the
parties as to the exact location of their respective parcels of land. It is in
these circumstances, and with the aforesaid background in mind that learned
counsel for the respondent-complainant was asked to state if an inadvertent
encroachment would constitute an offence under section 3 of the Act. He replied
in the affirmative. We are afraid his response is against the express wording
of the statute which requires the existence of a guilty intention for the
purpose of assuming jurisdiction. For reasons considered above, guilty intent, does not exist in the present case. Learned counsel
for the respondent did advert to some precedents in support of his submission
to the contrary. However, the ratio of the cited precedents is not attracted in
the presence case as will be shown shortly.”
9. From the facts and circumstances of the
case, we have come to the conclusion that the civil dispute has been converted
to the criminal litigation. In fact dispute is between the two private persons,
which is pending before competent Court. F.I.A has no
jurisdiction to entertain complaint lodged by Respondents Nos. 4 and 5 in respect
of private dispute with company against Petitioners. Moreover, violation of
circular issued by State Bank of Pakistan constitutes no criminal offence. Therefore,
proceedings would be nothing but abuse of process of Court. Consequently
proceedings emanating from Crime No.33/2012, under Sections 406/409/468/471/ 109/34
P.P.C. registered at P.S. F.I.A. CBC Karachi and enquiry are hereby quashed.
10. Needless
to mention that concerned respondents would be at liberty to adopt legal course
available to them under the law if advised so.
Petitions are
accordingly disposed of.
JUDGE
JUDGE
Gulsher/PA