2025 PLP 1810 (YLR)

Raheel Kamran, J.

The petitioners have filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the ('Constitution') to challenge the filing of private complaint under section 20 of the Financial Institutions (Recovery of Finances) Ordinance 2001 (hereinafter to be referred as 'FIO 2001') by the respondent No.2-Bank against the petitioners and proforma respondent No.3 during pendency of civil litigation before the Banking Court on the same subject.

2. The petitioners as well as pro forma respondent No.3 have been arrayed as accused in the private complaint filed by respondent-Bank on the allegation that they removed the hypothecated stocks, etc. It is asserted in the petition that civil suit instituted by the respondent-bank against the petitioners and pro forma respondent No. 3 is pending and during pendency of such civil suit, criminal complaint has been filed. Prayer of the petitioners is that filing of the criminal complaint be declared illegal and proceedings thereof be ordered to be stayed till final decision of the civil litigation.

3. Learned counsel for the respondent-Bank has raised preliminary objection on the maintainability of this petition by contending that adequate alternate remedies are available to the petitioners either to approach the trial court by filing application to seek postponement of the proceedings till determination of the civil liability under section 344 of Code of Criminal Procedure, 1898 (hereinafter to be referred as 'Cr.P.C.') or to seek acquittal under section 265K of Cr.P.C. Learned counsel while making reference to the case of Sheikh Muhammad Anwar and 4 others v. Judge Banking Court and another (2024 CLD 724) submits that the trial court is empowered to postpone proceedings if it comes to the conclusion that criminal liability is intimately connected with the outcome of civil proceedings. Learned counsel emphasizes that even otherwise, the suit instituted by the respondent-Bank against the petitioners has already been decreed. He finally contends that after filing of the complaint, the order passed by the Banking Court taking cognizance of the matter, which is assailable, was not assailed by the petitioners through appropriate proceedings, as such they are precluded from agitating such grievance by invoking constitutional jurisdiction of this Court.

4. In rebuttal, learned counsel for the petitioners while placing reliance on the dicta laid down in the case of Messrs Long Grain Rice Mills (Pvt.) Ltd. through Chief Executive v. Habib Bank Limited through Senior Manager (CAD) and Senior Manager (Remedial) and another (2016 CLD 551) contends that the petition is maintainable.

5. In view of the objection raised by the learned counsel for the respondent, this Court deems it necessary to first address and resolve the issue of maintainability as a preliminary matter before proceeding to examine the substantive aspects of the petition, so as to ensure that the proceedings are properly before it.

6. The petitioners have challenged the filing of complaint before the Judge Banking Court as is evident from perusal of the prayer clause. No supplication to challenge the summoning order has been made despite the fact that copies of complaint along with order sheet are appended with the petition, perusal whereof reflects that the Banking Court has passed order under section 204 of Cr.P.C. while taking cognizance of the matter and summoning the accused (petitioners) to face trial. Such order being judicial in nature, is assailable, however, none of the petitioners ever challenged the same. Non-assailing of the order whereby cognizance was taken by the Judge Banking Court, would imply that the petitioners have submitted to jurisdiction of the Banking Court in the complaint against them. After failure of the petitioners to challenge the summoning order, if they wanted stay of criminal proceedings pending civil litigation, they could move an application under section 344 of the Cr.P.C. before the trial court with prayer to postpone the commencement of trial or adjourn the trial if already commenced pending decision in the respective civil proceedings. Subsection (1) of section 344 of Cr.P.C. reads: - "

344. Power to postpone or adjourn proceedings. (1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:" Plain reading of the text of this section denotes that a court may postpone the initiation of any inquiry or trial or may adjourn any inquiry or trial which is already in progress. Postponement of the commencement or adjournment of trial can be made due to the absence of a witness or for any other reasonable cause.

7. The petitioners could even have approached the trial court by moving application under section 265-K of Cr.P.C. seeking their acquittal at any stage. Section 265K of Cr.P.C. is reproduced hereunder for the ready reference. "265K. Power of Court to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence." Section 265K ibid provides jurisdiction to trial court to discharge/acquit an accused if it considers that there is no probability of the accused being convicted of the offence.

8. In the instant case, the petitioners instead of exhausting any of such adequate efficacious remedies available to them, have opted to approach this Court directly by invoking the provisions of Article 199 of the Constitution.

9. By now it is well-established that a writ petition under Article 199 of the Constitution is not maintainable when a person has an adequate, efficacious alternate remedy. In light of the availability of an alternate remedy to the petitioners under Section 344 or 265K of the Cr.P.C. and in the absence of any compelling reasons with the petitioners to invoke the writ jurisdiction, the Court is not inclined to entertain this petition. The judgment relied upon by the petitioners side in the case of Messrs Long Grain Rice Mills (supra) is distinguishable on facts.

10. For the foregoing reasons, this petition is not maintainable, which is dismissed as such. MQ/A-28/L. Petition dismissed.