NATIONAL BANK OF PAKISTAN vs NAZIR AHMED alias KASHIF NADEEM

1. ' ZIA MAHMOOD MIRZA, J.---This petition for leave to appeal filed by National Bank of Pakistan, Dera Nawab Sahib, District Bahawalpur, is directed against the judgment of Lahore High Court, Bahawalpur Bench, dated 23-2-1993 passed in Cr. Appeal No, 8 of 1992/BWP, whereby judgment of the Special Court (Offences in Banks) Lahore, convicting Nazir Ahmed respondent for an offence under section 5 (2) of the Prevention of Corruption Act II of 1947 was set aside and the responde.Nt was ordered to be released forthwith.

2. 'Facts necessary for the disposal of this petition, briefly stated, are that the respondent was charged and tried for an offence punishable under section 5(2) of Act II of 1947 by the Special Court (Offences in Banks) on the allegation that through various cheques, he had deceitfully and fraudulently withdrawn Rs,41,200 from Account No,2502 in the name of Haq Nawaz and Rs,20,700 from Account No, 2551 in the name of Mst. Khurshid Anjum, and thus misappropriated a total sum of Rs,61,900. The learned Special Court vide judgment dated 3-12-1991 convicted the accused/respondent for the aforesaid charge and sentenced him to two years' R.I. And a fine of Rs,2,00,000 or in default of payment, to further one year R.I. The respondent preferred an appeal which, as stated above, was accepted by a Division Bench of Lahore High Court on the short ground that under section 4 of Offences in Respect of Banks (Special Courts) Ordinance IX of 1984, Special Courts (Offences in Banks) have been vested with the jurisdiction to try only the scheduled offences and since the offence under section 5 (2) of the Prevention of Corruption Act, with which the respondent was charged was not mentioned in the schedule attached to the said Ordinance, the trial of accused/respondent was wholly without jurisdiction. Feeling aggrieved, National Bank of Pakistan has approached this Court to seek leave to appeal against the judgment of the High Court.

3. ' Learned counsel appearing in support of this petition has submitted that the High Court took an incorrect view in holding that the offence under section 5 (2) of the Prevention of Corruption Act, 1947 of which the respondent was accused was not a scheduled offence. Learned counsel had pointed out that the offence under section 5 of the Prevention of Corruption Act, 1947 though originally not included in the schedule was later inserted in the First Schedule through Notification No, SRO-396(1)/85, dated 28th April, 1985 issued by the Federal Government under subsection (2) of section 4 of Ordinance IX of 1984. The contention appears to be correct and is borne out by the Notification, dated 28th April, 1985 whereby paragraph (bb) was added in the First Schedule which is reproduced hereunder:- "(bb) Offences punishable under section 5 of the Prevention of Corruption Act, 1947 (II of 1947);"

4. ' It appears that the aforenoted paragraph inserted in the Schedule vide Notification, dated 28th April, 1985 was not brought to the notice of the learned Judges of the High Court.

5. In view of the position aforestated, we hold that the offence under section 5 of the Prevention of Corruption, Act, 1947 was a scheduled offence and it, therefore, fell within the exclusive jurisdiction of the Special Courts (Offences in Banks) constituted under section 3 of Ordinance IX of 1984. That being so, the respondent was competently tried by the Special Court (Offences in Banks), Lahore.

6. ' In the aforesaid view of the matter, the impugned judgment of the learned High Court shall have to be set aside. We accordingly convert this petition into an appeal which is hereby allowed and the case is remanded to the High Court for deciding the appeal of respondent on merits.