Mr. Justice Shahid Karim in his judgment has decided the issue regarding registration of FIR under Pakistan Penal Code and jurisdiction of Banking Court in view of Financial Institutions (Recovery of Finances) Ordinance 2001 in Writ Petition No. 33423 of 2013.
1. This judgment shall deal with two categories of cases. In the first category, we have been informed, fall petitions where matters are pending with the Federal Investigating Agency (FIA) which has yet to determine the course of action to be taken with respect to the complaints filed with FIA. The second category relates to the matters where first information reports (FIRs) have been registered under the various provisions of Pakistan Penal Code (PPC). In both these categories, the petitioners have prayed for setting aside of the proceedings and consequently the quashment thereof. This judgment shall decide the connected petitions listed in Appendix ‗A‘ with this petition.
2. It is not necessary to lay out the facts in each case as we intend to focus our attention to the broad and vexed question of law which is a common thread in these petitions. The question of law which we have been invited to determine is whether there is a complete bar and prohibition on the initiation of any action or setting into motion proceedings before either the FIA or by registration of cases under the PPC in view of the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance, 2001). The precise submission of the learned counsel for the petitioners is that in view of the exclusionary provisions in the Ordinance, 2001 and the exclusivity of the Banking Court in taking cognizance of the offences, no other authority or court can take cognizance of the matters which are squarely covered by the provisions of the Ordinance, 2001 and any offences which are mentioned therein. In a nub, the learned counsel for the petitioners alleged that normal procedures stand ousted and the only course open is to file a complaint under the provisions of the Ordinance, 2001 to be tried by the Banking Court.
3. The entire reliance of the learned counsel for the petitioners is on the provisions of section 7 of the Ordinance, 2001 and in particular the tenor and sweep of subsection (4).
4. A dissection of section 7 would ineluctably bring forth that in the exercise of its criminal jurisdiction, a Banking Court shall try offences punishable under the Ordinance, 2001 and shall, for the purpose, have the same powers as are vested in a court of Sessions under the Code of Criminal Procedure, 1898 (Cr.P.C). Thus, what will be noticed in the first instance, is that the Banking Court will only try offences punishable ―under this Ordinance‖. It follows indubitably that the Banking Court does not have power to try offences under any other law. The significance and import of this shall be adverted to in the latter part of this judgment. By the proviso of clause (b) of subsection (1) to section 7, a Banking Court shall not take cognizance of any offence punishable under the Ordinance, 2001 except upon a complaint in writing made by a person authorized in this behalf by the financial institution in respect of which the offence was committed. It follows, therefore, that the complaint can only be filed by a financial institution and that too by a person authorized by it. The necessary corollary is that no other person is authorized to file a complaint before the Banking Court in respect of any offence punishable under the Ordinance, 2001. This makes the exercise of criminal jurisdiction by the Banking Court as a limited jurisdiction and for the benefit of financial institutions only. It also follows from this that any person who is not a financial institution cannot bring a complaint to the Banking Court and, therefore, does not have the locus standi to file such a complaint. As a prefatory therefore it may be mentioned that in case the submission of the learned counsel for the petitioners is accepted, then any person apart from the financial institution will be left high and dry and without a remedy in respect of any criminal offence for which he seeks criminal prosecution.
5. Subsection (4) of section 7 is of a crucial nature and is at the heart of the controversy involved in these petitions. It has also the fulcrum around which the arguments of the learned counsel for the petitioners revolve. According to subsection (4), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under the Ordinance, 2001. This includes the jurisdiction with respect to the exercise of criminal matters as well. Upon a reading of subsection (4), it becomes clear that subsection (4) confers exclusive jurisdiction on a Banking Court with respect to matters under the Ordinance, 2001 and perhaps there is no cavil with this proposition. However, subsection (4) does not place a prohibition on the setting into motion of criminal prosecution under the general law and of registration of cases under the PPC as that would be putting a clog on the right of a person to have a case registered if an offence is made out under any other law. This distinction has to be kept in mind while putting a construction on the exclusive jurisdiction clause contained in subsection (4). While there may not be a dispute regarding the proposition that with regard to the offences mentioned in the Ordinance, 2001, Banking Court will have exclusive jurisdiction yet it may be difficult to accept as a general proposition that subsection (4) by necessary intendment bars the taking of cognizance or registration of cases under the general law. It is important to bear in mind that the provisions of subsection (4) do not convey such a meaning. Nor can the intention of the legislature be culled out to convey the interpretation which is canvassed by the learned counsel for the petitioners. The provisions of subsection (4) can only be taken to mean what is enacted and nothing beyond that. Subsection (4) does not specifically says that proceedings under any other law are barred. It merely confers jurisdiction on the Banking Court with regard to offences mentioned in the Ordinance, 2001.
6. Subsection (5) of section 7 of the Ordinance, 2001 is a slight deviation from the exclusive jurisdiction conferred on the Banking Court under the Ordinance, 2001. It preserves and keeps intact the right of financial institution to seek any remedy before any Court that may be available to it under the law by which that financial institution may have been established. The offences under the Ordinance, 2001 are encapsulated in section 20 of the Ordinance, 2001.
7. In these petitions, we are primarily concerned with the provisions of subsection (1) of section 20 and the petitions substantially and primarily relate to a challenge to the registration of FIRs under the PPC or initiation of complaints in respect of scheduled offences before Special Judge (Offences in Banks) on the ground that the exclusive jurisdiction lies with the Banking Court and the offences are those, which by their tenor and texture, are covered by ones mentioned in subsection (1) of section 20 and the jurisdiction of ordinary courts or that of any other court except the Banking Court is barred.
8. As adumbrated, the fundamental reliance of the petitioners in putting forth this submission is on the basis of subsection (4) of section 7 of the Ordinance, 1984 which has been referred to above. In this regard, it will be useful to notice subsection (5) of section 7 to complete the narrative in the context of exclusion being relied upon by the petitioners. Subsection (5) is itself an exception carved out of the exclusivity which is contained in subsection (4). By subsection (5) the power of the financial institution and its right to seek any remedy before any Court that may be available to it under the law by which the financial institution has been established, has been retained.
Further information regarding registration of FIR under Pakistan Penal Code and jurisdiction of Banking Court in view of Financial Institutions (Recovery of Finances) Ordinance 2001 can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.