2015 PLP 1188 (MLD)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

Tariq Hameed etc. being borrowers had secured a finance facility from Habib Bank Limited, a banking company, Trust Plaza, Gujranwala after providing all securities in respect of the facility they obtained. In this connection the bags of rice were also pledged with the banking company. Later on the company by filing an application under section 22-A, Cr.P.C. prayed for registration of the case against the petitioners, upon which application vide order dated 7-12-2011 the requisite direction was issued. The order passed by the learned Ex-Officio Justice of Peace, Wazirabad, District Gujranwala is the subject matter of instant petition, which has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The moot point involved in this case is whether the ordinary police in presence of section 7(b) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has jurisdiction to register the case under Pakistan Penal Code, 1860 against a borrower of a banking company for breaching the contract or any other offence committed during the period of availing finance facility. This situation has arisen when the pledged stock had been attached by the learned Banking Court and from its legal custody misappropriation of the bags of rice had taken place. Learned counsel for the petitioner, in support of the fact that the ordinary police has no jurisdiction to register the FIR, has relied upon the cases reported as Murshid Ali and 4 others v. S.H.O, Police Station Saddar, Khanewal and another (2011 PCr.LJ 1763), Mian Asim Farid and another v. Industrial Development Bank of Pakistan and 4 others (2005 PCr.LJ 766) and Malik Tariq Mehmood v. Messrs Askari Leasing Ltd. (PLD 2009 Lahore 629).

3. On the other hand, learned counsel for respondent No.5 has also relied upon the cases of Shaukat Ali and others v. The State and others (2012 CLD 1) and Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 SCMR 483).

4. After examining the cases cited at the bar it is found that the order passed by this Court in the case of Mian Asim Fareed (2005 PCr.LJ 766) was set aside by the apex Court in the judgment reported as 2006 SCMR

483. A close examination of the judgment cited by the learned counsel for respondent indicates that this Court as well as apex Court had drawn a distinction between the matter of registration of the case and taking of cognizance in the case. Both these cases cited by the learned counsel for the respondent relate to the quashing of the FIR where a criminal case had already been lodged against the person but in the instant case the matter is that the order of learned Ex-Officio Justice of Peace issuing direction for registration of the case has been assailed with the contention that the local police has no jurisdiction to take action under the provisions of Pakistan Penal Code, 1860, therefore, in my view the judgments cited by the learned counsel for the respondent are not applicable to the facts and circumstances of the case.

5. It is a rule of prudence as well as of interpretation of statute that special law shall have overriding effect over the general law, thus keeping in view this interpretation it can be said that the Financial Institutions (Recovery of Finances) Ordinance, 2001 being a special law shall have the overriding effect over the provisions of Pakistan Penal Code, 1860, particularly when the Ordinance (ibid) has itself provided the procedure for dealing with the matters of civil as well as criminal nature. In this connection when the provisions of section 7(b) of the Ordinance, 2001 are examined it comes to light that only Banking Court constituted under that Ordinance has jurisdiction to take actions upon the criminal acts performed by the parties. This specific provision, as provided by the Ordinance, has created a prohibition in respect of lodging of the criminal case under the provisions of Pakistan Penal Code thus the learned Ex-Officio Justice of Peace was not within his jurisdiction when he had ordered for registration of the case against the petitioners under the provisions of Pakistan Penal Code. Another matter regarding the competency of the order passed by the Court on the application of the respondent is that respondent No.5 could not file an application under section 22-A, Cr.P.C. before the learned Ex-Officio Justice of Peace for the reason that the Banking Court in accordance with its own order had attached the bags of rice and had taken the same stock into its legal custody thus if any theft or misappropriation of that stock has been committed then it is the Court itself to initiate proceedings against the culprits and this jurisdiction cannot be bestowed upon the Manager of the branch of banking company to pray for the relief before the Court of ordinary jurisdiction in super-session of the available forum. It is also noticeable that uptil now the suit for recovery filed by the banking company had been decreed in its favour and an execution petition against the petitioners is pending before the Court.

6. The resume of the above discussion is that respondent No.5 had no authority to file an application under section 22-A Cr.P.C. before learned Ex-Officio Justice of Peace nor the learned Ex-Officio Justice of Peace had any jurisdiction, in the presence of the Banking Court, to order for registration of the case against the petitioner.

7. In view of afore-noted circumstances, this petition is allowed and the impugned order is set aside resulting into dismissal of the application filed by respondent No.5 under section 22-A, Cr.P.C. MH/T-14/L Petition allowed.