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Petitioner: Khurram Iftikhar and Others VS Respondent: Federation of Pakistan through Secretary, JUDGMENT
Court Name: Islamabad High Court Judge(s): Tariq Mehmood Jahangiri Title:Khurram Iftikhar and Others vs Federation of Pakistan through Secretary,
JUDGMENT
Reported As: 2022 PCRLJ 1665 Result: Petitions dismissed Judgment JUDGMENT TARIQ MEHMOOD JAHANGIRI, J. Through the instant judgment I propose to decide the above captioned writ petitions, as they entail common questions of law and facts. 2. Through their respective writ petitions, the petitioners have challenged the impugned actions of the respondents/FIA, therefore, it is appropriate to reproduce the prayer of the main case i.e. (W.P. No. 80/2016) which is as under; "It is therefore respectfully prayed that the impugned actions and proceedings initiated by respondents thereunder against the petitioners may kindly be declared illegal, unlawful, without jurisdiction and without lawful effect. It is further prayed that this honorable Court may kindly direct the respondents Nos. 2 and 3 to refrain from initiating any other proceedings against the petitioners, as the provisions of the P.P.C. and the FIA Act are clearly not applicable in the present situation. It is further prayed that the respondents Nos. 2 and 3 be restrained from harassment/arrest/coercive/adverse actions against the petitioners in pursuance of the impugned actions and misuse of their powers. Any other order which this Honorable Court may deem fit and appropriate in the circumstance of the case may also be passed". 3. Succinctly stated the facts of the matter are that the petitioners are Directors and Ex-Directors of different companies incorporating under the Companies Ordinance, 1984. That in the year 2011, the Directors of the company received notices, issued by the FIA stating that the FIA is conducting an enquiry No. 92/2010 of FIA/CCC, Karachi (the "First Enquiry") regarding investment by Employees
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Old Age Benefit Institution, (EOBI) in the shares of the company after its listing with Karachi Stock Exchange (KSE). The petitioner No. 1 being the Chief Executive of the company namely Amtex duly appeared before concerned official of FIA and got recorded his statement on 01.12.2011, with respect to the investment of EOBI in shares of the company. That thereafter, in the year 2013, the Directors of the Company again received notices by FIA stating that FIA is conducting another enquiry bearing No. 40/2013 of FIA/CBC, Karachi (the "Second Enquiry") regarding investment by EOBI in shares of the company. The petitioners again appeared before the FIA in the second enquiry and got recorded their statements. That the FIA undertaken another enquiry bearing No. 34/14 (the "Third Enquiry") in the matter, and consequently registered a case vide FIR No. 27 of 2015 dated 31.12.2015, offence under sections 409, 109 and 34, P.P.C. read with section 5(2)(47) of the Prevention of Corruption Act, 1947, registered at Police Station FIA/CCC, Karachi, on the allegations of causing loss of 290 Million to public exchequer/EOBI on the basis of purported conclusions drawn, as a result of the third inquiry. The petitioners have challenged the impugned actions of FIA in different writ petitions, the impugned actions are described as under:- "the authorization for the initiation of the enquiries referred and the FIR recorded by respondents Nos. 1 and 2 (FIA) as well as enquiries conducted in the matter and the FIR are hereinafter collectively referred to as the Impugned Actions". 4. That on the basis of illegal and unwarranted actions, the petitioners were being unnecessarily harassed by various public functionaries and the FIA was causing substantial pecuniary damage and loss to the reputation and good will of the companies. 5. Learned counsel for the petitioners inter alia contends that the impugned actions are illegal, invalid and without lawful authority, have been undertaken due to extraneous considerations, as well are in violation of fundamental rights of the petitioners and well settled principle of law. It has further been contended that in terms of FIA rules, more specifically, Rule 5 thereof, initiation of any inquiry and registration of any criminal case by FIA involving any public servant over the Basic Pay Scale 19 requires prior authorization, approval and permission of Federal Anti Corruption Council. 6. That in terms of section 3 of FIA Act, jurisdiction of FIA only extends to the offences duly specified in the schedule of FIA Act, whereas section 409 of Pakistan Penal Code was not a scheduled offence in the year 2010 and the same was inserted in the schedule of FIA on 16.07.2013 and the subject matter of impugned actions admittedly relates to alleged events much before the insertion of section 409 of P.P.C. in schedule of the FIA Act, hence any proceeding initiated or undertaken on the basis of said provision of P.P.C. in respect of the matter prior to the insertion of the same in the schedule of the FIA Act would amount to taking retrospective action or imposing retrospective punishment, which action is in direct conflict with Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973. 7. That the 'constitutional protection and safeguards guaranteed under Articles 4, 9, 10A and 14 of Constitution of Islamic Republic of Pakistan have been violated, the petitioners duly appeared before the FIA during the course of first inquiry and second inquiry, however, no notice of the third inquiry was given to the petitioners, the impugned FIR was registered in violation of the due process. 8. That the impugned actions are premised on totally incorrect interpretation of the laws involved, as well as distortion of the facts, the share of the companies have not been sold by the Directors and the petitioners have not gained benefits of the single right out of the investment of EOBI in the shares of the companies, nor such gain of illegal benefit has been attributed to the petitioners in the FIR. 9. The allegations levelled in the FIR can only be dealt with under the special enactments and not the general law of the land. SECP Ordinance provides the machinery for dealing with all the matters related to dealing in securities including the prosecution of offences. The special law supersedes
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the general law and the impugned actions are the excess of jurisdiction and in violation of law, by undermining the significance and operation of the relevant provisions of special laws. 10. That the impugned actions reveal that same have undertaken/ initiated/registered with mala fide by abusing the process of law, just to blackmail, harass, arrest and cause humiliation to the petitioners and the impugned actions have been lodged in order to pressurize the petitioners and to camouflage the omission/illegalities of the officials of EOBI and the acts of the FIA are illegal, without lawful authority, without jurisdiction and the same are being acted upon due to extraneous consideration and the impugned actions and proceedings therein by the respondents are clear use of authority with mala fide and is concrete proof of harassment being caused to the petitioners on account of ulterior motives of the officials of FIA designed on unjustified arrest of the petitioners. 11. That the Security and Exchange Ordinance 1969, the Securities and Exchange Commission of Pakistan Act 1997, the Companies Ordinance 1984, and EOBI Rules, 1979, are the special laws having overriding effects, are the exclusive forums in dealing with the alleged offences and the petitioners under the right to be dealt accordingly, pray for acceptance of the writ petitions and setting aside the impugned actions of respondents/FIA. 12. Learned counsel for the petitioners have relied upon cases reported as PLD 2020 Sindh 601, 2017 SCMR 1218, 2004 SCMR 1397, PLD 1959 SC 322, 2013 SCMR 338. 13. On the other hand, learned Assistant Attorney General, learned counsel for SECP and EOBI have controverted the arguments made by learned counsel for the petitioners inter alia stating that in compliance of orders passed by the Hon'ble Supreme Court of Pakistan, FIA registered eight (18) different FIRs for embezzlement/loss of public exchequer amounting to Rs. 34 Billion by EOBI. The Hon'ble Supreme Court of Pakistan, while taking stern action against the mega scam in EOBI passed the following directions in Para 08 of the order dated 01.07.2013 passed in Constitution Petition No. 35/2013: "Para 8: In view of above narration of facts and having gone through the reports submitted by the secretary HR as well as the DG FIA, it is directed that: (1) That the Director General, FIA shall proceed further to conduct inquiry/investigation, as the case may be, in all the cases pertaining to the alleged corruption in making investment in the properties which are 18 in number as per list supplied by the Secretary along with the report. (2) DG, FIA would also be free to further probe into the affair in respect of any transaction of EOBI wherein it is noticed that the corruption or the corrupt practices have been committed by the responsible persons, whosoever he may be and without being influenced in any manner from the rank, status or the position, political or otherwise because the money, against which it is alleged that misappropriation has been committed by corruption and corrupt practices, belonging to tax payers, therefore, in terms of Article 9 of the Islamic Republic of Pakistan 1973, they as well as the beneficiaries of EOBI are entitled for the protection of their Fundamental Rights. (3) Secretary interior shall strengthened the DG FIA by allowing him the services of the officers/officials from within or outside the cadre of FIA, in accordance with rules because we feel that allegations which have been unearthed called for, serious efforts to collect evidence immediately instead of allowing to spoil the same". 14. That section 409, P.P.C. was inserted in schedule of FIA on 24.10.2008 prior to registration of FIR, vide S.R.O. 1113(I)/2008, dated 24.10.2008. 15. That in the instant case/inquiry bearing No, 92/2010 of FIA/CCC Karachi which was accumulated with another inquiry bearing No. 40/2013, the Chief Executive of M/s Amtex Mr. Khurram Iftikhar recorded his statement during the course of enquiry, the said enquiries were not closed and enquiry No. 40/2013 merged with fresh enquiry bearing No. 34/2014 and- after completion of the inquiry, the case vide FIR No. 27/2015 dated 31.12.2015 offence under sections 409, 109, 34, P.P.C. read
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with section 5(2)(47), PCA, 1947 Police Station FIA/ Corporate Crime Circle, Karachi was registered with the following allegations:- i. EOBI purchased 11,700,000 Shares of Messrs Amtex Limited on 16.08.2010 against Rs. 227,172,818/- at a price of Rs. 19.3716 per share. ii. EOBI again purchased 5,650,000 shares of Messrs Amtex Limited on 27.08.2010 against Rs. 110,487,106/- at a price of Rs. 19.51 per share. iii. The total 17,350,000/- shares of Messrs Amtex Limited were purchased by EOBI against PKR 337,659,914/-. iv. The above shares were purchased on recommendation and approval of Investment Committee of EOBI comprising Kanwar Khursheed Wahid, the then DG Investment, and Zafar Iqbal Gondal the then Chairman EOBI. v. The current value per share is PKR 2.73. vi. The total loss to public exchequer / EOBI is PKR 290 million. 16. The respondent/FIA has submitted the report/Challan under section 173, Cr.P.C which is pending in the Court of Special Judge Central, Karachi. That learned Assistant Attorney General on the instruction of Investigating Officer and the Additional Director, FIA states that all the petitioners are absconders and they have not joined the investigation by violating the orders and directions passed by this Court on 12.01.2016. It has further been contended that warrants of arrest against the petitioners have been issued by the learned trial Court of Karachi and all the petitioners/accused are fugitives from law. That all the evidence of the case has been collected from the head office of EOBI, Karachi, SECP Karachi and other relevant departments of Karachi, the investigation has been conducted in Karachi, the head office of the EOBI and the registered offices of the companies are in Karachi, hence this Court has no jurisdiction to grant relief to the petitioners; It has further been contended that the Hon'ble Sindh High Court has taken cognizance of the matter and has quashed the FIR to the extent of ADK Securities and has dismissed the petition for quashing of the FIR to the extent of other parties/petitioners. As the Hon'ble Sindh High Court has taken cognizance, therefore, this Hon'ble Court has no jurisdiction to adjudicate upon the matter. Learned counsel for FIA has relied upon the cases reported as 2014 SCMR 1376, 2016 SCMR 2084, PLD 2020 Supreme Court 282, PLD 2020 Supreme Court 427, PLD 2019 Supreme Court 250, PLD 2016 Supreme Court 55, PLD 1997 Lahore 385 and 1996 SCMR 186 etc. 17. Learned counsel for the SECP has also challenged the jurisdiction of this Court on the ground that the whole transaction, subject matter of the sale of shares took place in Karachi within the territorial jurisdiction of Hon'ble Sindh High Court, hence this Court has no jurisdiction. Learned counsel has relied upon the cases reported as "PLD 2008 Supreme Court 735, 2009 CLD 1498, 1996 CLC 539, 2012 PTD 1869, 1999 P Cr.LJ 1584 and 2011 YLR 337, etc". 18. Learned counsel for the EOBI has also vehemently contended that as the inquiry was conducted in Karachi, the FIR was registered in Karachi and the challan has been submitted in the Court of competent jurisdiction in Karachi, therefore, this Court has no jurisdiction to adjudicate upon the matter. 19. That the cheque issued by Messrs Amtex Limited bearing No. CDA22518631, dated 31.01.2016 amounting to Rs. 40 million, Soneri Bank Limited Main Branch, Faisalabad has been dishonored vide dishonor slip dated 08.02.2016, hence the petitioners are not entitled for any relief as prayed in the instant petitions. That along with above cheque, an undertaking was also executed by the authorized representative of Messrs Amtex Limited namely Imran Afzal which is as under; RE: VOLUNTARILY PAYMENT OF RS. 40.00 MILLION TO EOBI THROUGH FIA. "It is stated that losses to EOBI in purchase of its shares by Messrs Amtex, I hereby voluntarily submit cheque bearing No. 22518631, dated 31.01.2016 of Rs. 40.00 Million amount to EOBI through FIA Sindh Karachi. Further stetted during the course of investigation, if any losses found on the part
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of Messrs Amtex Limited, I hereby pledge that the same will be paid to EOBI through FIA, Sindh, Karachi". Further stated that the cheque was issued unconditionally, voluntarily in the name of EOBI through FIA, as such dishonor of said cheque amounts to another offence punishable under section 489-F, P.P.C. and the petition is liable to be dismissed. 20. Learned counsel has relied upon cases reported as "2020 PCr.LJ 1307 (Islamabad), 2018 SCMR 802, 2017 PCr.LJ 1540 (Islamabad), 2016 PCr.LJ 1056 (Islamabad), 2016 PCr.LJ 693 (Islamabad), PLD 2001 Peshawar 7, PLD 1997 Lahore 643, 1996 CLC 539 Lahore and PLD 1975 Supreme Court 244, etc". 21. Arguments heard record perused. 22. My point wise findings are as under: 1. NON-COMPLIANCE AND DISOBEDIENCE OF ORDER PASSED BY THIS COURT; i. On 12.01.2016, order was passed by this Court in Writ Petition No. 80/16 that "subject to notice, petitioners shall join the investigation and provide relevant information to respondents Nos. 02 and 03, however referred respondents shall not harass the petitioners and shall not adopt any coercive measures". Same order was passed on different dates in all the writ petitions but the FIA has informed that the petitioners have not joined the investigation inspite of issuance of many notices and directions, even on 16.06.2016 Mr. Qaisar Masood, Additional Director FIA has given statement in this Court that the petitioners are not joining the investigation. ii. In Para-wise comments, FIA authority has categorically mentioned that the petitioners have not joined the investigation after passing the orders by this Court. 2. DISOBEDIENCE OF ORDER PASSED BY HON'BLE LAHORE HIGH COURT, LAHORE. i. The respondent/FIA has mentioned in the written comments that petitioners/accused persons have neither joined the investigation nor surrendered themselves before the trial Court ever after taking protective bails from Hon'ble Lahore High Court, Lahore. The petitioners applied for protective pre-arrest bails in impugned FIR No. 27/2015 before the Hon'ble Lahore High Court, Lahore with the request to enable them to approach the Court of Competent jurisdiction for grant of pre-arrest bail at first instance, the petitioners have given assurance that they will remain present before the Court on each and every date of hearing of pre-arrest bail and the order dated 07.01.2016 of interim/transitory bails seized to exists by mid-day of 13.01.2016. ii. The petitioners never applied for bail before arrest in the Court of Competent jurisdiction, hence violated their commitment as mentioned in order dated 07.01.2016 passed by the Hon'ble Lahore High Court, Lahore. 3. PETITIONS BARRED BY LACHES. i. The petitioners in "impugned actions" have challenged the inquiries conducted by FIA. "First Enquiry", which was initiated in the year of 2010, by Corporate Crime Circle, Karachi bearing No. 92/2010, the petitioners have received notices in the year 2011 and also challenged the "Second Enquiry" bearing No. 40/13 of FIA/CBC, Karachi and "Third Enquiry" bearing No. 34/14. Whereas, the instant writ petitions were filed in the year 2016 i.e. almost after the delay of 05 years of the impugned actions. ii. In the case of "Ahmed and 25 others v. Ghama and 5 others reported as 2005 SCMR 119", it is held by the Hon'ble Supreme Court of Pakistan that:- 'there is no cavil with the proposition that existence of laches is sufficient for dismissal in limine of petition". It is further held that "We have absolutely no hesitation in our mind that the petitioners failed to pursue their case vigilantly, vigorously and woke up from the deep slumber after 108 days which cannot be ignored without sufficient justification which is badly lacking in this case". The same principle is followed in "2016 SCMR 183, PLD 2016 SC 872, 2019 SCMR 1720 and PLD 2016 SC 514".
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4. FUGITIVES FROM LAW. i. The petitioners have neither joined the investigation nor surrendered themselves before the Court of Competent jurisdiction. Final challan was submitted on 22.05.2017 in the Court of Special Judge Central-II, Karachi. The petitioners have not appeared before the Court, and have been declared absconders even the learned counsel for the petitioners have admitted that the petitioners are appearing in the Court through their counsel, whereas no order for the exemption under section 540-A Cr.P.C has been passed by the learned trial Court. ii. It has also transpired from the order sheets of the learned trial Court that petitioners are absconders, their non-bailable warrants of arrest have also been issued but the FIA officials are not arresting them as FIA has been restrained from arresting the petitioners vide order dated 24.05.2016 passed by this Court. Even the learned Special Judge Central, Karachi has mentioned in his order dated 19.05.2021 that after the registration of FIR the petitioners inspite of orders of this Court, have not joined the investigation and have not surrendered themselves before the Court of law rather the counsel for the petitioners have challenged the filing of challan/report under section 173, Cr.P.C in the learned trial Court which was dismissed vide order dated 19.05.2021. 5. ALTERNATE REMEDY. i. As the challan/report under section 173, Cr.P.C. has been submitted in the Court of Special Judge Central-II, Karachi, so the petitioners have alternate remedy to file petition under section 265-K, Cr.P.C. for their acquittal in the Court of Competent jurisdiction. Guidance in this respect is taken from the case law reported as PLD 2013 SC 401 (Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others), wherein it was held that:- "The law is quite settled by now that after taking of cognizance of a case by a trial court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challenged therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A1265-K, Cr.P.C to seek his premature acquittal if the charge- against him is groundless or there is no probability of his conviction." ii. It has also been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Mst. Kaniz Fatima v. Muhammad Salim" (2001 SCMR 1493), that:- "where a particular statute provides a self-contained machinery for the determination of questions arising under the Act and where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunals and constitution petition without exhausting remedy provided by the statute would .not lie in the circumstances". The same principle has been enunciated in a case titled as "Muhammad Abbasi v. SHO Bhara Kahu and 7 others" (PLD 2010 Supreme Court 969), wherein it was held that "in our view where alternate remedy is more convenient, beneficial and likely to set the controversy at naught completely, jurisdiction under Article 199 cannot be exercised". iii. In another case titled as, "Rana Aftab Ahmad Khan v. Muhammad Alma! and another" (PLD 2010 Supreme Court 1066), it was held that:- "we have considered the above and are constrained to hold that the constitutional jurisdiction (reference Article 199) of the High Court in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising the extraordinary discretionary power". 6. DECISION IN THE MATTER BY HON'BLE SINDH HIGH COURT. i. Two petitions bearing Nos. 23/16 and 06/17 titled as "Wahid Khursheed Kunwar v. The State" and "Muhammad Farid Alam and others v. The State", respectively filed before the Hon'ble Sindh High
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Court, Karachi for quashing of FIR No. 27/2015, were decided vide order dated 01.06.2018, wherein Criminal Miscellaneous Application No. 23/2016 was dismissed and Criminal Miscellaneous Application No. 06/17 was allowed, consequently the FIR No. 27/2015 was quashed only to the extent of AKD Securities. As the jurisdiction in the matter has already been assumed by the Hon'ble Sindh High Court, hence this Court lacks the jurisdiction to entertain the matter. 7. LACK OF TERRITORIAL JURISDICTION UNDER ARTICLE 199(a)(1) OF THE CONSTITUTION. i. Following are the reasons that this Court lacks the jurisdiction;- a. The impugned transaction of sale and purchase of shares was made at Karachi. b. The initial offer of purchase of shares was made at Karachi. c. The sale price of shares was made at Karachi. d. The seller company was listed at Karachi Stock Exchange. e. The petitioner's companies are registered and incorporated at Karachi. f. The whole transaction was completed at Karachi and no part of it was accomplished at Islamabad. g. The inquiry was directed by the Director FIA at Karachi without any intervention of Head Office. h. The FIR was lodged at Karachi and all relevant evidence lies there. i. The illegal acts were committed at Karachi and dominant cause has accrued there. j. There is no allegation against SCEP nor any relief has been claimed against it. k. Nothing has been urged against any functionary at Islamabad. 1. Agitating grievance of filing writ petitions at Islamabad is wholly without any cause, hence this Court has no jurisdiction to entertain the petitions. ii. In this regard reliance has been placed upon a case titled as "Sandalbar Enterprises Ltd. v. Central Board of Revenue" (PLD 1997 Supreme Court 334). 8. GUIDELINES OF HON'BLE SUPREME COURT FOR QUASHING OF FIR. i. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as D.G, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 SC 401) that:- "The law is quite settled by now that after taking of cognizance of a case by a trial court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challenged therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial…
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