PLJ 2011 Lahore 141
Present: Iqbal Hameed-ur-Rehman, J.
Ch. ABDUR REHMAN--Petitioner
versus
DEPUTY DIRECTOR, FIA, FAISALABAD CIRCLE, FAISALABAD
and 19 others--Respondents
W.P. No. 20066 of 2009, heard on 8.4.2010.
Constitution of Pakistan, 1973--
----Art. 199--Banking Ombudsman Ordinance, 1962, S. 82--Constitutional jurisdiction--Question of--Maintainability--Grievance of--Sought direction be issued to hold an inquiry on the basis of fictitious documents, fictitious revenue record prepared on the basis of bogus pass book--Dummy loans had been issued and utilized for private business--Alternate adequate and efficacious remedies which were available, in form of filing a complaint before Banking Ombudsman--By filing a complaint before Special Court, by seeking a direction by filing an application before Justice of Peace and under Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit--No direction can be passed for registration of a case or inquiry under the Constitutional jurisdiction u/Art. 199 of Constitution of Pakistan where alternate remedies were available--Matter was sub-judice before Banking Court--Constitutional petition was not competent and maintainable before High Court and has no merits in fact it appears that petitioner in order to avoid repayment of his loans was trying to create lever in order to pressurize--No direction for registration of case can be issued under extra ordinary Constitutional jurisdiction of High Court--Petition was dismissed. [Pp. 143 & 144] A & B
2007 YLR 2834, 2004 YLR 2577 & 1999 MLD 3230, rel.
Mr. M. Abdus Sattar Chughtai, Advocate for Petitioner.
Mr. Majid Ali Wajid, Advocate for Respondents No. 2, 5 to 20.
Date of hearing: 8.4.2010.
Judgment
Through this instant writ petition the grievance of the petitioner is that a direction be issued to Respondent No. 1 Deputy Director, FIA, Faisalabad Circle, Faisalabad to hold an inquiry against Respondents No. 2 to 20 with the allegation that on the basis of fictitious documents, fictitious Revenue Record was prepared by the said respondents and on the basis of bogus pass book prepared by the respondents dummy loans have been issued and utilized by the respondents for their private business, in view of the same the matter be probed into by FIA and as such a direction of this Court be issued to Respondent No. 1 to register a case against the said respondents and thereafter to proceed in accordance with law.
2. This writ petition has vehemently been opposed by learned counsel for Resplendents No. 2 to 20 both by filing parawise comments as well as at bar. Learned counsel for the respondents at the very outset states that this writ petition is pre-mature as the petitioners have neither approached Respondent No. 1 FIA with any complaint and is trying to obtain a direction of this Court by invoking its constitutional jurisdiction by-passing the law and procedure provided under Federal Investigation Agency Act, 1974 as well as Federal Investigation Agency (Inquiries and Investigations) Rules, 2002. The second legal objection urged by learned counsel for the respondents is that this petition is not maintainable as alternate adequate and efficacious remedies are available to the petitioner firstly, in the form of filing a complaint before Banking Ombudsman U/S. 82 of the Banking Companies Ordinance, 1962. Secondly, by filing a complaint before the Special Court under the "Offences in Respect of Banks (Special Courts) Ordinance, 1984". Thirdly, by seeking a direction against Respondent No. 1 U/S. 22-A, 22-B Cr.P.C. by filing an application before the Justice of Peace. Fourthly, under the Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit which infact the petitioner has already availed and filed a suit under the said Ordinance, 2001 before the Banking Court, Sargodha as such he is estopped by law to re-agitate the same matter before this Court by invoking its constitutional jurisdiction. The subject-matter of the suit which has been dismissed by the Banking Court vide its judgment dated 16.11.2009 is the same as in the instant writ petition. Learned counsel for the respondents further states that the petitioner had filed an appeal which has been accepted vide judgment dated 01.03.2010 and the matter has now been remanded to the Banking Court, Sargodha for deciding the same afresh as such the matter is already pending before the Banking Court as such this constitutional petition is not maintainable. The petitioner has already availed the alternate remedy, therefore, this writ petition merits dismissal. Moreover, in the garb of this writ petition the petitioner is seeking registration of a case against Respondents No. 2 to 4 and 6 to 20 without any specific allegation against them. The allegation as alleged in the writ petition is against Respondent No. 5. The reason being is to harass the officials of the respondent Bank as most of them are Managers of the respondent Bank at Sargodha and the petitioner and his relatives have obtained loans from the different Branches of the respondent Bank and recovery suits are pending against the petitioner. He is not making payment as such the petitioner has approached this Court with unclean hands and has made material concealment of facts and they are not entitled to any equitable relief by this Court in its constitutional jurisdiction. In this regard reliance has been placed on Messrs Royal IPR Security Service (PVT.) LTD. Vs. Muhammad Nadeem and others (2004 YLR 2577), Javed Tariq Khan and another Vs. Ahmed Raza Khan and four others (1999 MLD 3230), Muhammad Akram Vs. Muhammad Anwar (2002 YLR 3701) and Saeed Ahmed Barry Vs. The State and two others (2007 YLR 2834). Learned counsel for the respondents has vehemently urged that there is no merit in this writ petition and it is not maintainable, no equitable relief can be granted to the petitioner since it is based on mala fide, concealment of material facts hit by availability of alternate remedies and the same is only intended to be used or a tool for harassing the respondents and delaying the recovery of the outstanding amount from the petitioner granted under the Finances Facilities availed by him from respondents Bank the same be dismissed in limine.
3. Arguments heard and the material placed on record, taken into consideration.
4. Learned counsel for the petitioner has not been able to substantiate from his arguments before this Court that how this writ petition is maintainable. In view of the same petitioner has alternate adequate and efficacious remedies which are available to him i.e. firstly, in the form of filing a complaint before Banking Ombudsman U/S. 82 of the Banking Companies Ordinance, 1962. Secondly, by filing a complaint before the Special Court under the "Offences in Respect of Banks (Special Courts) Ordinance, 1984". Thirdly, by seeking a direction against Respondent No. 1 U/S. 22-A, 22-B Cr.P.C. by filing an application before the Justice of Peace. Fourthly, under the Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit. It is consistent view of this Court that no direction can be passed for registration of a case or inquiry under the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic Of Pakistan where alternate remedies are available and in this regard reliance is being placed on Saeed Ahmed Barry Vs. The State and two others (2007 YLR 2834) in which it has been held that:--
"---Art. 199--Constitutional jurisdiction--Scope--Availability of alternative remedy--Petitioner had prayed for a direction to authorities requiring registration of criminal case under Ss.419, 420, 468, 471, 465, 466, 474 PPC contending that he had come to know that someone had forged an agreement to sell touching his land, though he never executed any such agreement and same was forged, fabricated and fictitious at the hands of beneficiary--Stance canvassed in the petition, rested on disputed factual controversy, requiring, determination through detailed inquiry/recording of evidence--Such exercise could not be undertaken by High Court while discharging jurisdiction under Art. 199 of the Constitution--Petitioner had an alternative remedy of proceeding in the matter by filing a private complaint under S. 200, Cr.P.C.--Direction to register criminal case as prayed for by the petitioner, could not be given--Petitioner could have recourse to other alternative remedies, Provided by law--Constitutional petition was dismissed."
Messrs Royal IPR Security Service (PVT.) LTD. Vs. Muhammad Nadeem and others (2004 YLR 2577), wherein it has been held that:--
"--Art. 199--Constitutional jurisdiction--Scope--Alternate remedy Available Effect--Where an alternate remedy by way of direct complaint was available of the petitioner, he could not insist that High Court should exercise its Constitutional Jurisdiction through not justified under circumstances of the case."
5. Admittedly, before filing this writ petition the petitioner had also filed a suit before the Banking Court, Sargodha for deciding the same matter which was initially dismissed by Banking Court and on appeal thereafter the same has been remanded to the Banking Court vide its judgment dated 01.03.2010 and now the matter is sub judice before the Banking Court, Sargodha therefore, this constitutional petition is not competent and maintainable before this Court and has no merits infact it appears that the petitioner in order to avoid repayment of his loans is trying to create lever in order to pressurize the respondents. In view of the same no direction for registration of case can be issued under extra ordinary constitution jurisdiction of this Court. In this regard reliance is placed on Javed Tariq Khan and another. Vs. Ahmed Raza Khan and four others (1999 MLD 3230) wherein it has been held that:--
"under provisions of Art. 199 of Constitution of Pakistan (1973) it was not obligatory for High Court to issue writ in each case, irrespective of facts/ circumstances, which could call for exercise of judicial restraint in turning down request of petitioner--Conduct of parties was of considerable importance in determining as to whether discretionary jurisdiction under said Article should be exercised or refused--High Court while issuing direction to police to register criminal case against appellant, not only had not considered said circumstances, but also ignored the facts that adequate remedy in form of private complaint was available to complainant/respondent--High Court could refuse relief sought by complainant/respondent through its Constitutional jurisdiction--Indiscreet direction for registration of criminal case, could cause untold problems for opposite party though motive for resorting to writ jurisdiction could be discernible on the face of record namely to humiliate and persecute opponent--When a criminal case is registered against a citizen he is put into terror of being interrogated ruthlessly and even arrested, besides his relations and friends, who also might be called to police station by an unscrupulous police officer--Keeping in view background of enmity between parties and nature of allegation, coupled with reports/proceedings by police, no direction for registration of cases should have been issued by High Court in its discretionary jurisdiction."
5. In the above perspective, this writ petition is not maintainable as well as it has no merits, the same is dismissed.
(R.A.) Petition dismissed.
Present: Iqbal Hameed-ur-Rehman, J.
Ch. ABDUR REHMAN--Petitioner
versus
DEPUTY DIRECTOR, FIA, FAISALABAD CIRCLE, FAISALABAD
and 19 others--Respondents
W.P. No. 20066 of 2009, heard on 8.4.2010.
Constitution of Pakistan, 1973--
----Art. 199--Banking Ombudsman Ordinance, 1962, S. 82--Constitutional jurisdiction--Question of--Maintainability--Grievance of--Sought direction be issued to hold an inquiry on the basis of fictitious documents, fictitious revenue record prepared on the basis of bogus pass book--Dummy loans had been issued and utilized for private business--Alternate adequate and efficacious remedies which were available, in form of filing a complaint before Banking Ombudsman--By filing a complaint before Special Court, by seeking a direction by filing an application before Justice of Peace and under Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit--No direction can be passed for registration of a case or inquiry under the Constitutional jurisdiction u/Art. 199 of Constitution of Pakistan where alternate remedies were available--Matter was sub-judice before Banking Court--Constitutional petition was not competent and maintainable before High Court and has no merits in fact it appears that petitioner in order to avoid repayment of his loans was trying to create lever in order to pressurize--No direction for registration of case can be issued under extra ordinary Constitutional jurisdiction of High Court--Petition was dismissed. [Pp. 143 & 144] A & B
2007 YLR 2834, 2004 YLR 2577 & 1999 MLD 3230, rel.
Mr. M. Abdus Sattar Chughtai, Advocate for Petitioner.
Mr. Majid Ali Wajid, Advocate for Respondents No. 2, 5 to 20.
Date of hearing: 8.4.2010.
Judgment
Through this instant writ petition the grievance of the petitioner is that a direction be issued to Respondent No. 1 Deputy Director, FIA, Faisalabad Circle, Faisalabad to hold an inquiry against Respondents No. 2 to 20 with the allegation that on the basis of fictitious documents, fictitious Revenue Record was prepared by the said respondents and on the basis of bogus pass book prepared by the respondents dummy loans have been issued and utilized by the respondents for their private business, in view of the same the matter be probed into by FIA and as such a direction of this Court be issued to Respondent No. 1 to register a case against the said respondents and thereafter to proceed in accordance with law.
2. This writ petition has vehemently been opposed by learned counsel for Resplendents No. 2 to 20 both by filing parawise comments as well as at bar. Learned counsel for the respondents at the very outset states that this writ petition is pre-mature as the petitioners have neither approached Respondent No. 1 FIA with any complaint and is trying to obtain a direction of this Court by invoking its constitutional jurisdiction by-passing the law and procedure provided under Federal Investigation Agency Act, 1974 as well as Federal Investigation Agency (Inquiries and Investigations) Rules, 2002. The second legal objection urged by learned counsel for the respondents is that this petition is not maintainable as alternate adequate and efficacious remedies are available to the petitioner firstly, in the form of filing a complaint before Banking Ombudsman U/S. 82 of the Banking Companies Ordinance, 1962. Secondly, by filing a complaint before the Special Court under the "Offences in Respect of Banks (Special Courts) Ordinance, 1984". Thirdly, by seeking a direction against Respondent No. 1 U/S. 22-A, 22-B Cr.P.C. by filing an application before the Justice of Peace. Fourthly, under the Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit which infact the petitioner has already availed and filed a suit under the said Ordinance, 2001 before the Banking Court, Sargodha as such he is estopped by law to re-agitate the same matter before this Court by invoking its constitutional jurisdiction. The subject-matter of the suit which has been dismissed by the Banking Court vide its judgment dated 16.11.2009 is the same as in the instant writ petition. Learned counsel for the respondents further states that the petitioner had filed an appeal which has been accepted vide judgment dated 01.03.2010 and the matter has now been remanded to the Banking Court, Sargodha for deciding the same afresh as such the matter is already pending before the Banking Court as such this constitutional petition is not maintainable. The petitioner has already availed the alternate remedy, therefore, this writ petition merits dismissal. Moreover, in the garb of this writ petition the petitioner is seeking registration of a case against Respondents No. 2 to 4 and 6 to 20 without any specific allegation against them. The allegation as alleged in the writ petition is against Respondent No. 5. The reason being is to harass the officials of the respondent Bank as most of them are Managers of the respondent Bank at Sargodha and the petitioner and his relatives have obtained loans from the different Branches of the respondent Bank and recovery suits are pending against the petitioner. He is not making payment as such the petitioner has approached this Court with unclean hands and has made material concealment of facts and they are not entitled to any equitable relief by this Court in its constitutional jurisdiction. In this regard reliance has been placed on Messrs Royal IPR Security Service (PVT.) LTD. Vs. Muhammad Nadeem and others (2004 YLR 2577), Javed Tariq Khan and another Vs. Ahmed Raza Khan and four others (1999 MLD 3230), Muhammad Akram Vs. Muhammad Anwar (2002 YLR 3701) and Saeed Ahmed Barry Vs. The State and two others (2007 YLR 2834). Learned counsel for the respondents has vehemently urged that there is no merit in this writ petition and it is not maintainable, no equitable relief can be granted to the petitioner since it is based on mala fide, concealment of material facts hit by availability of alternate remedies and the same is only intended to be used or a tool for harassing the respondents and delaying the recovery of the outstanding amount from the petitioner granted under the Finances Facilities availed by him from respondents Bank the same be dismissed in limine.
3. Arguments heard and the material placed on record, taken into consideration.
4. Learned counsel for the petitioner has not been able to substantiate from his arguments before this Court that how this writ petition is maintainable. In view of the same petitioner has alternate adequate and efficacious remedies which are available to him i.e. firstly, in the form of filing a complaint before Banking Ombudsman U/S. 82 of the Banking Companies Ordinance, 1962. Secondly, by filing a complaint before the Special Court under the "Offences in Respect of Banks (Special Courts) Ordinance, 1984". Thirdly, by seeking a direction against Respondent No. 1 U/S. 22-A, 22-B Cr.P.C. by filing an application before the Justice of Peace. Fourthly, under the Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit. It is consistent view of this Court that no direction can be passed for registration of a case or inquiry under the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic Of Pakistan where alternate remedies are available and in this regard reliance is being placed on Saeed Ahmed Barry Vs. The State and two others (2007 YLR 2834) in which it has been held that:--
"---Art. 199--Constitutional jurisdiction--Scope--Availability of alternative remedy--Petitioner had prayed for a direction to authorities requiring registration of criminal case under Ss.419, 420, 468, 471, 465, 466, 474 PPC contending that he had come to know that someone had forged an agreement to sell touching his land, though he never executed any such agreement and same was forged, fabricated and fictitious at the hands of beneficiary--Stance canvassed in the petition, rested on disputed factual controversy, requiring, determination through detailed inquiry/recording of evidence--Such exercise could not be undertaken by High Court while discharging jurisdiction under Art. 199 of the Constitution--Petitioner had an alternative remedy of proceeding in the matter by filing a private complaint under S. 200, Cr.P.C.--Direction to register criminal case as prayed for by the petitioner, could not be given--Petitioner could have recourse to other alternative remedies, Provided by law--Constitutional petition was dismissed."
Messrs Royal IPR Security Service (PVT.) LTD. Vs. Muhammad Nadeem and others (2004 YLR 2577), wherein it has been held that:--
"--Art. 199--Constitutional jurisdiction--Scope--Alternate remedy Available Effect--Where an alternate remedy by way of direct complaint was available of the petitioner, he could not insist that High Court should exercise its Constitutional Jurisdiction through not justified under circumstances of the case."
5. Admittedly, before filing this writ petition the petitioner had also filed a suit before the Banking Court, Sargodha for deciding the same matter which was initially dismissed by Banking Court and on appeal thereafter the same has been remanded to the Banking Court vide its judgment dated 01.03.2010 and now the matter is sub judice before the Banking Court, Sargodha therefore, this constitutional petition is not competent and maintainable before this Court and has no merits infact it appears that the petitioner in order to avoid repayment of his loans is trying to create lever in order to pressurize the respondents. In view of the same no direction for registration of case can be issued under extra ordinary constitution jurisdiction of this Court. In this regard reliance is placed on Javed Tariq Khan and another. Vs. Ahmed Raza Khan and four others (1999 MLD 3230) wherein it has been held that:--
"under provisions of Art. 199 of Constitution of Pakistan (1973) it was not obligatory for High Court to issue writ in each case, irrespective of facts/ circumstances, which could call for exercise of judicial restraint in turning down request of petitioner--Conduct of parties was of considerable importance in determining as to whether discretionary jurisdiction under said Article should be exercised or refused--High Court while issuing direction to police to register criminal case against appellant, not only had not considered said circumstances, but also ignored the facts that adequate remedy in form of private complaint was available to complainant/respondent--High Court could refuse relief sought by complainant/respondent through its Constitutional jurisdiction--Indiscreet direction for registration of criminal case, could cause untold problems for opposite party though motive for resorting to writ jurisdiction could be discernible on the face of record namely to humiliate and persecute opponent--When a criminal case is registered against a citizen he is put into terror of being interrogated ruthlessly and even arrested, besides his relations and friends, who also might be called to police station by an unscrupulous police officer--Keeping in view background of enmity between parties and nature of allegation, coupled with reports/proceedings by police, no direction for registration of cases should have been issued by High Court in its discretionary jurisdiction."
5. In the above perspective, this writ petition is not maintainable as well as it has no merits, the same is dismissed.
(R.A.) Petition dismissed.
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