2015 PLP 1104 (CLD)

MUHAMMAD QASIM KHAN, J.

This writ petition has been filed by the petitioner to assail the order dated 22-12-2011 passed by learned Ex-officio Justice of Peace, Jahanian, whereby, on an application filed by NRSP through its Recovery Officer, the respondent/SHO has been directed to register a case.

2. Heard.

3. It is admitted position that Cheques in question had been issued as a guarantee by the petitioner for the return of loan facility obtained by him from respondent/Bank. Section 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, provides:- "(7) Powers of Banking Courts

(1) Subject to the provisions of this Ordinance, Banking Court shall. (a)

(b) in the exercise of its criminal jurisdiction, try offences punishable under this Ordinance and shall, for this purpose have the same powers as are vested in a Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898): Provided that a Banking Court shall not take cognizance of any offence, punishable under this Ordinance except upon a complaint in writing made by a person authorized in this behalf by the financial institution in respect of which the offence was committed." ................................................................. ................................................................. (4) Subject to subsection (5), no court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the existence or otherwise of a finance and the execution of a decree passed by a Banking Court." "(5) Nothing in subsection (4) shall be deemed to affect-- (a) the right of a financial institution to seek any remedy before any court or otherwise that may be available to it under the law by which the financial institution may have been established; or (b) the powers of the financial institution, or jurisdiction of any court such as is referred to in clause (a); or Require the transfer to a Banking court of any proceedings pending before any financial institution or such court immediately before the coming into force of this Ordinance." The above-reproduced provision clearly postulates that no Court other than Banking Court shall have, or exercise jurisdiction with respect to any matter to which the jurisdiction of Banking Court extends under this Ordinance.

4. The contention of learned counsel for the respondent bank is that taking cognizance is something different as compared to the registration of case and the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 deal with cognizance of offence but not deal with registration of cases, therefore, the registration of case is not barred under this Ordinance. I am afraid this stance advanced by learned counsel for respondent Bank is not considerable at all. Section 20(6) of the Ordinance, ibid, read as under:- "

20. Provisions relating to certain offences (1)

(2)

(3)

(4) Whoever dishonestly issues a cheque towards re-payment of finance or fulfillment of an obligation which is dishonoured on presentation, shall be punishment with imprisonment which may extend to one year, or with fine or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. (5)

(6) All offences under this Ordinance shall be bailable, non-cognizable and compoundable." The above provision is relating to certain offences and its sub section (4) deals with dishonest issuance of a cheque towards repayment of a finance or fulfillment of an obligation, which is dishonoured on presentation. The punishment of said offence has been provided as one year or with fine or with both. Therefore, it becomes quite obvious that in the matter, like the one in hand, the jurisdiction only lies with the Banking court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and not before any other court, until and unless the same is provided by law, by which the financial institution is established.

5. This court in the judgment dated 16-5-2013 rendered in case "Muhammad Asif Nawaz v. The ASJ, and others" (W.P. No.10707 of 2012), has held that a general law and a special law on the same subject are statutes in pari materia and should accordingly, be read together and _harmonized, if possible, with a view to give effect to both. The rule is that where there are two acts, one of which is special and particular and the other general, which if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute. Further, it has been held that in terms of Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 offences under the said Ordinance shall be bailable, non-cognizable and compoundable and section 154, Cr.P.C. comes in the field where the commission of a cognizable offence is disclosed and when the Statute itself makes it clear that offence is not cognizable then the registration of criminal case by the local police could not be permitted by law.

6. Although by amendment in P.P.C., section. 489-F, P.P.C. has been inserted after promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001 but this insertion would also not give it an overriding effect over special law, for the reason that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication.

7. Accordingly, this writ petition is allowed and the impugned order dated 22-12-2011 passed by learned Additional Judge/Ex-officio Justice of Peace, Jahanian, is hereby set aside. This order, however, will not be considered a bar in the way of the respondent Bank to plead their case before the appropriate forum under the Financial Institutions (Recovery of Finances) Ordinance 2001. KMZ/B-2/L Petition allowed.