2016 PLP 447 (SCMR)

MAQBOOL BAQAR, J.

The order assailed through this appeal has been passed by a learned Single Judge of the Lahore High Court ordering quashment of an FIR in the Constitutional Jurisdiction.

2. The respondent through the aforesaid proceedings sought quashment of an FIR recorded by the Federal Investigation Agency (FIA) on the complaint of a private person against the respondent for an offence under section 489-F, P.P.C. The complainant alleged that he started business in the field of Iron Ore and Gypsum with the Respondent. In terms of the agreement executed between them, the business financed by the complainant, was to be carried out/conducted by the respondent as an operational/working partner. In this regard, the respondent drew a cheque in favour of the complainant and delivered it to him. Though the respondent was obliged to furnish accounts for the money he spent in the business, however, he failed to comply. The aforesaid cheque when presented to the bank was dishonoured for lack of funds. The complainant thus, lodged the above FIR.

3. The question raised before the learned High Court was of competence and jurisdiction of the FIA to record the subject FIR and conduct investigation thereunder. The learned High Court found that though in terms of SRO 977(1)/2003 Section 489-F, P.P.C. has been incorporated in the schedule of offences under the FIA Act, 1974, however, since the FIA has been established for the investigation of offences committed in connection with matters concerning the Federal Government, and for matters connected therewith and thus does not enjoy any power or jurisdiction in relation to a purely private business dispute between the two individuals, allowed the petition, and quashed the proceedings emanating from the said FIR.

4. There is no cavil to the proposition that the FIA has been established/constituted for investigation of certain offences committed in connection with matters concerning the Federal Government and in connection therewith. Such is discernable from the preamble of The Federal Investigation Agency Act ("The Act"), which reads as follows:- "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".

5. 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.

6. Keeping in view the intent of the Act as spelt out from the preamble and the fact that through the Act the FIA, in terms of the schedule to the Act has been granted jurisdiction and power to act in respect of several offences under the P.P.C. which are cognizable by the local police also, and also in order to avoid a conflict of jurisdiction, the only conclusion that the Court may draw is that for exercising jurisdiction in the matter of the offences enumerated in the schedule to the Act there has to be some nexus between the offences complained of and the Federal Government or else there shall be overlapping of the jurisdiction of the local police and the FIA creating an anomalous situation which certainly is not the intent of the legislature. Another aspect of concern is that though in terms of notification, bearing SRO 977(1)/2003, Section 489-F, P.P.C. has been made a scheduled offence under the FIA Act, but no reasonable classification has been provided for exercising such power and it is left to the discretion of the concerned officer of the FIA to exercise his authority and jurisdiction under the Act in respect of the said offence, which militates against the protection enshrined by Article 25 of the Constitution of Islamic Republic of Pakistan. If a citizen is exposed to the proceedings in respect of an offence lodged against him which could be initiated before more than one forums, a reasonable classification is the requirement of the Constitution.

7. Under somewhat similar circumstances where validity of certain provisions of the Foreign Exchange Regulations Act, providing three modes of trial and punishment for offences under the Act, were called in question before this Court in Waris Meah's Case (PLD 1957 SC (Pak) 157), and it was found that under the said legislation, State Bank was authorized to proceed in respect of the offences under the Act before more than one forum. The Court whilst observing that the Statute does not provide a guideline for classification of persons required to be tried before a certain forum, held that the provision which conferred such arbitrary discretion to choose any of the three different forums prescribed by the Act without classification was ex facie discretionary, and violative of Article 5(i) of the 1956 Constitution (which is akin to Article 25 of the Constitution 1973), although the question then before the Court was of the discretion in the choice of forum for trial, however, the ratio of the case and the principle enunciated therein is equally applicable at the investigation stage as well as the discretion of choice of forum of trial in the matter also lies with FIA.

8. In the present case, as noted earlier, the dispute is between two private individuals. It is in respect purely of a business transaction, and there is not the remotest involvement of the Federal or for that matter any Government or any governmental entity and thus in view of the foregoing circumstances, the FIA has had no jurisdiction in the matter. It is now well settled that an investigation launched beyond jurisdiction is mala fide and without lawful authority and is liable to be struck down.

9. In the circumstances, we are of the view, that the FIA has had no jurisdiction in the matter and the learned Judge has rightly allowed the respondent's petition. The appeal is, therefore, dismissed but with no orders as to cost. MWA/D-9/SC Appeal dismissed.