2019 PLP 2296 (YLR)

IKRAMULLAH KHAN, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner Maple Leaf Cement Factory through its D.G.M. Sheikh Adeel Ahmad has challenged the jurisdiction of respondent/ Federal Investigation Agency in regard to the criminal inquiry initiated against the petitioner/company as well as notice dated 14.12.2017 issued by respondents/ agency against the petitioner/ company, whereby the petitioner was asked to provide all the relevant documents in respect of the private transaction held between the petitioner and respondent No. 4, a foreign private company.

2. Learned counsel for petitioner contended that the alleged transaction being taken place between two private persons could not be inquired by the Federal Investigation Agency as it is outside the scope of jurisdiction conferred upon the Federal Investigation Agency (FIA) in view of the preamble of Federal Investigation Agency Act 1974 read with Section 3 of the same Act.

3. On the other hand learned counsel for respondents argued that the offence in which the respondents has launched the inquiry against the petitioner is a scheduled offence and in view of Section 3 of the Federal Investigation Agency Act 1974, the respondent Agency is well competent to initiate inquiry.

4. We have heard learned counsel for the parties in light of law on the subject and their respective submissions.

5. The Federal Investigation Agency has been constituted in terms of Section 3 of the Federal Investigation Agency Act 1974, which reads as:- "Notwithstanding anything contained in any other law of the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence." While the legislature has constituted Federal Investigation Agency 1974 for the purpose, which is well mentioned in the Preamble, which reads as:-- "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government and for matters connected therewith;"

6. Irrespective of the fact that as to whether the offence under consideration is a scheduled offence or not, the legal proposition confronted herein would be as to whether in such like offences, the FIA can take cognizance to inquire such an offence. This fact could not be denied that the petitioner as well as respondent No.4 between which private transactions has taken place, were both private entities and have no concern, relevance, nexus or connection with matters concerning the Federal Government while none of the parties comes within the definition of Public servant. Although Preamble of a statute could not be treated as a mandatory part of a statute but it is only to indicate the intention of legislature, however, if the enacting provision is clear, the same is to be given effect by giving plain and literal meaning to the words and in such a situation reference to Preamble may not be made but where there is a complexity and doubt in regard to giving effect to any provision of the Act, then the Preamble would be considered as vital key for removing such doubts. In case of "Director General, FIA and others v. Kamran Iqbal" (2016 SCMR 447), the apex Court has held that: "Indeed, preamble to a Statute is not an operative part thereof, however, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same." The Hon'ble Islamabad High Court in case of "Pakistan Football Federation and others v. Government of Pakistan and others" (2016 YLR 916), is held that: the appeals of dispute was between the two parties claiming to be representative of Pakistan Football Federation affiliated with FIFA, the Federal Investigation Agency started inquiry on the complaint filed by the respondents and accounts of the Federation were frozen. Federation was a non-governmental entity and had no direct or indirect control over it by Federal Government. Employees of Federation were not "public servants" as defined in Pakistan Penal Code, 1860. Controversy was between two sets of office bearers who claimed to be President and Secretary. Parameters for Initiation of inquiry/ investigation by Federal Investigation Agency were not met with, therefore, inquiry initiated was without Jurisdiction and so was the act of freezing of accounts. In case it is admitted fact that there being business dealing of sale and purchase between the private parties (petitioner' and respondent No.4) and such dispute between the, parties was purely of civil nature while respondent No.4 has already filed a civil suit before the competent Court of law against the petitioner, so in such a situation, the FIA had got no jurisdiction to conduct an inquiry/investigation into a matter which purely is a civil dispute between two private persons, therefore, the impugned notice and the proceedings initiated against the petitioner is declared to be without jurisdiction and lawful authority. So this petition is allowed in the above terms. KMZ/72/P Petition allowed.