P L D 2011 Lahore 181 (PLP)

IJAZ AHMAD CHAUDHRY, C.J.--Through this single order I propose to decide Writ Petition No.24268 of 2010 along with the instant one as both these petitions carry similar question against the same respondents.

2. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner companies have challenged the assumption of jurisdiction by the Federal Investigating Agency into a civil matter because the same is contrary to the powers envisaged under the Federal Investigating Agency Act, 1975. The petitioner companies have also sought a declaration of this Court with regard to launching of the criminal proceedings by respondents Nos.1 and 2 to be illegal, as respondents Nos.3 and 4 had made payments to the petitioner companies in furtherance of a contractual obligation, which contracts are still intact. Lastly the petitioner companies prayed that the act of the respondents for freezing their accounts be declared as illegal.

3. Precisely the facts giving rise to the filing of these petitions are that the petitioner companies being public limited companies duly registered under the Companies Ordinance, 1984 at the name and style mentioned in the caption of the writ petitions had participated in the tender pursuant to PC-1 prepared by the Planning Commission of the Government of Pakistan for the purpose of execution of a project known as "School Nutrition Package for Girls". The Project was named as "Tawana Pakistan" and was already-supplying nutritional milk and dairy products to the schools children in remote areas of Pakistan. Being the lowest bidder the petitioner companies successfully qualified the tendering procedure and bound down themselves into contracts with the respondents by way of Memorandum of Understanding dated 3-2-2007. The total cost of the contracts has been set at a sum of Rs.49.752 Million each and the supplier had been declared entitled to a sum of 15% each of the price of the contracts by way of mobilization advance which was accordingly paid to the petitioner companies which had started performing their jobs/contracts till 5-12-2007 when respondent No.4 issued a letter dated 5-12-2007 prohibiting the petitioner companies from supplying the contractual obligations with immediate effect but still intact the contracts dated 3-2-2007. Feeling the above said wretch situation the petitioner companies got in touch with respondents Nos.3 and 4 by indulging into correspondence by way of writing various letters, till April, 2008 under the perception that the contracts had not been rescinded or revoked during the interregnum period. Thereafter due to changing in country's political scenario the affairs formulated between the petitioner companies and the previous government were taken to task by the new government and the petitioner companies were roped into inquiries conducted by the Ministry of Social Welfare, the Standing Committee of the Senate of Pakistan, respondent No.2 and the National Accountability Bureau. The petitioner companies tried their level best to resolve problems through inquiry proceedings but after smelling a cold response from the respondents' end the petitioner companies have instituted civil suits for specific performance of the contracts and in the alternative have claimed damages as the petitioner companies had invested in procurement of all the material required in performance of remaining part of contracts. The respondents in order to put pressure upon the petitioner companies started criminal proceedings against them and demanded cheques from them but upon refusal by the petitioner companies respondents Nos.1 and 2 get the accounts of the petitioner companies halted. The action displayed by the respondents in the garb of criminal proceedings is illegal and unlawful, hence this writ petition.

4. The learned counsel for the petitioner companies contends that the contracts between the parties to this case are still intact; that is why the petitioner companies had instituted suits for specific performance of the contracts the criminal proceedings against the petitioner companies are illegal and unjustified as the matter is purely of civil nature; and no allegation of non-performance of contract has been levelled upon the petitioner companies. Respondents Nos.3 and 4 have duly joined the civil proceedings before the learned civil court and remained unable to point out any failure on the part of the petitioner companies but even then respondent No.3 has unlawfully suspended the supplies to be made in fulfillment of contract dated 3-2-2007. The petitioner companies had thrice supplied numerous documents in support of its plea but even then the respondent FIA continuously harassing for the last one year by calling the officers of the petitioner companies at their office at Islamabad and kept then bound thereat till late night. The provisions of section 2(c) of the Federal Investigating Agency Act, 1975 do not attract to private limited companies and the same deals only to a public servant or relates to employees of any corporation or other body or organization set up, controlled or administered by Federal Government. It is the civil court, which has the exclusive jurisdiction to finally and conclusively determine the rights of the parties and launching of criminal proceedings by the FIA are totally illegal and the same would also prejudice the civil proceedings.

5. On the other hand the learned Deputy Attorney-General has vehemently opposed the petitions and stated that the writ petitions are not maintainable because factual controversy is involved in these petitions. The petitioner companies have itself taken the matter to a civil court and instead of settling the matters therefrom they have invoked the writ jurisdiction of this Court under Article 199 of the Constitution. If the petitioner companies have some reservations or preliminary objections regarding taking of cognizance by the FIA, it should first take such objections in the inquiry proceedings rather than agitating the same before this Court. He has prayed for dismissal of writ petitions.

6. After hearing the learned counsel for the parties and going through the documents appended with these writ petitions as well as the report submitted on behalf of respondents Nos.1 and 2 it has been noticed by me that the matter in hand has borne out from some civil contracts between the petitioner companies and respondents Nos.2 to 4 regarding which civil suits for specific performance of contracts instituted by the petitioner companies are also pending before the learned civil court. Under the garb of above said contract a hefty amount had been embezzled by the petitioner companies with the active connivance of some officers from Ministry of Social Welfare and Special Education, Islamabad and that is why the FIA has come to the field to thrash out the fraud committed in these cases. A plain reading of the petitions as well as the reply submitted on behalf of respondents Nos.1 and 2 reveals that that certain factual controversies are involved in these cases which cannot be resolved by this Court while sitting in writ jurisdiction under Article 199 of the Constitution. The reply further reveals that the petitioner companies have made some concealment during the bidding process. One of the members of the Procurement Committee has disowned joining of the bidding opening proceedings and some members have denied making signatures over comparative statements. It has also revealed during the inquiry proceedings that the petitioner companies had been obtaining amount without submitting any bank guarantee according to the rules/policy. In this view of the matter the question whether the bidding process had rightly been adopted by the Procurement Committee in its true spirit or not as also the question whether the petitioner companies have acted in the manner and mode formulated by the parties at the time of contracts or the petitioner companies have obtained money from deceitful manners or not are questions which need recording of evidence and the same exercise cannot be undertaken in the present summary procedure by this Court especially in the circumstances when the matter is already sub judice in a civil court. Even otherwise this Court would not like to jump into the factual controversy between the parties and comment upon the same at such a premature stage, which act of course, will prejudice the cases before the learned civil courts. After finalizing the inquiry proceedings the inquiry agency has already submitted its report, thus, this Court is slow in interfering into the matter at such a stage of these cases. Reliance is placed on the case of Mst.Azra Israr v. Inspector-General .of Police, Punjab, Lahore (PLD 2003 Lahore 1).

7. Admittedly the petitioner companies had tiled civil suits for specific performance of contracts and the learned counsel stressed his arguments on the point that when a civil matter is pending before the competent forum, criminal proceedings about the same subject-matter could not be initiated because it was the civil court which has to conclusively determine the rights of the parties. In this context I may observe here that the law has now well-settled on the proposition that the civil and criminal proceedings can run side by side. There is a plethora of judgments available on this particular point, thus, the above said argument of the learned counsel for the petitioner companies is not helpful in this case.

8. The learned counsel for the petitioner companies raised another objection to the effect that the respondent FIA could not inquire into a civil matter relating to the petitioner companies under section 2(e) of the Federal Investigation Agency Act, 1974 because the FIA was vested powers only to make inquiry from a public servant and the petitioner companies do not fall within the definition of a public servant. I, however, remained unable to appreciate this submission made by the learned counsel for the petitioner companies because under sub-section (2) of section (1) of the Federal Investigation Agency Act, 1974 the extension of the above said Act not only vested to the extend of public servant but it also extends to all citizens of Pakistan where they may be. Even otherwise the petitioner has committed fraud with connivance of employees of Federal Government, thus, the FIA have ample jurisdiction to enquire the matter. Section 5 of the Act further delegates powers to the inquiry officer/member of the Agency to seize the property and subsection (5) of the Act, 1974 further explains that if reasonable apprehension is found that the property subject-matter of the case will be removed, transferred or disposed of by the owner before an order of the appropriate authority for its seizure is obtained, then the Inquiry Officer may, by order in writing, direct the owner or any person who is, for the time being, in possession thereof not to remove, transfer, or otherwise dispose of such property in any manner with his prior permission. Thus, the respondents have rightly frozen the accounts of the petitioner companies by exercising the above provisions of the Act, 1974.

8. For what has been discussed above I do not find any merit in these petitions and the same are hereby dismissed. A.R.K./V-1/K Petitions dismissed.