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Case No. 211 of 1984, decided on 7th October, 1985.

‑‑‑S. 2‑‑Penal Code (XLV of 1860), S. 409/420/468/471‑‑Prevention of Corruption Act (I of 1947), S. 5(2)‑‑Bank‑‑Definition‑‑Basic factor in definition‑‑It should either be a company registered under Companies Act, 1913 or a Banking Company incorporated by or under any law within legislative competence of Parliament including State Bank.‑‑[Words and phrases].

‑‑‑S. 2‑‑Banking Companies Ordinance (LVII of 1962), S. 5‑‑Banks (Nationalization) Act (XIX of 1974), S. 3(1)(a)‑‑'Banking'‑‑Definition‑ Registered Company transacting business of banking‑‑Basic meaning of word 'banking', held, was same as defined in S.5(b) of Ordinance LVII of 1962‑‑It was business of banking which gave to a financial institution distinctive character and name of a bank and without transacting that business it may be anything but not a bank.‑‑[Words and pharas].

‑----S. 2‑‑Penal Code (XLV of 1960), S. 409/420/468/471‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑National Saving Centres‑‑Not banks‑‑Basic function of lending of money or investing of money, received from public in profitable ventures, which is distinctive function of a bank distinguishing it from other financial institutions not performed by National Saving Centres‑‑Centres neither transacting business of banking nor falling within basic clause of definition of bank given in S. 2(a) of Ordinance IX of 1984‑‑National Saving Centres, held, were not banks.

‑‑‑Ss. 2 & 4‑‑Penal Code (XLV of 1960), Ss. 409, 420, 467 and 471‑ Prevention of Corruption Act (II of 1947). S. 5(2)‑‑National Saving Centres not coming within definition of bank nor declared as such, offences enumerated in First Schedule, appended to Ordinance IX of 1984, and committed in respect of and in connection with business of National Saving Centres, not being Scheduled offences, as defined in S. 2(a) of said Ordinance‑‑Special Court, held, had no jurisdiction to try accused for said offences‑‑Cases returned to Special Judge (Central) for trial.

‑‑‑When general words follow a specific word, general words, held, take their colour from specific word and must be interpreted to embrace only things of same kind or category as is designated by specific word used earlier to them.

‑‑‑S. 2(a)(iv)‑‑Companies Act (VII of 1913), S. 2(2)‑‑Company definition‑‑Basic feature in context of S. 2(a)(iv) of Ordinance IX of 1984‑‑Company should have independent existence and should have power to govern its affairs by itself.‑‑[Words and phrases].

Malik Muhammad Qayyum, Deputy Attorney General assisted by Mr. Nazir Ahmed Ghazi, Pubic Prosecutor with Raja Muhammad Yaqoob Special Prosecutor and Mian Qamar‑uz‑Zaman Special Prosecutor for the State.

Munir Ahmed Bhatti for Respondent No. 1.

Zafar Pasha for Respondent No. 2.

This judgment will dispose of common question of law raised in this case, namely, case No. 211/84, and 8 other cases, namely, 196/84, 583/84, 615/84, 1/85, 18/85, 19/85, 63/85 192/85 of this Court to the effect as to whether National Saving Centres are 'banks' within the meaning of the said word as defined in section 2 of Offence in Respect of Banks (Special Courts), Ordinance, 1984 (IX of 1984) and whether this Court has the jurisdiction to try the accused in cases relating to offences committed in respect of or in connection with the business in National Saving Centres.

2. I have heard Mr. Zafar Pasha, Advocate, Mr. Munir Ahmed Bhatti, Mien Muzaffar Ahmed, Advocates and others, learned counsel for the accused‑objectors at length. I have also heard Malik Muhammad Qayyum, Deputy Attorney General, Mr. Nazir Ahmed Ghazi, Public Prosecutor, Raja Muhammad Yaqoob, Special Prosecutor, and other Special Prosecutors on behalf of the State in all the said cases.

3. Offence in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984), under section 3 of which this Court was established was promulgated on and came into force w.e.f. 23‑2‑1984. The preamble of this Ordinance states that it is an Ordinance to provide for speedy trial of certain offences committed in respect of Banks and for matters connected therewith or incidental thereto. Subsection (1) of section 4 of the Said Ordinance lays down that notwithstanding anything contained in Cr.P.C., scheduled offences shall be triable exclusively by the Special Court. Section 2(d) of the said Ordinance defines scheduled offence to mean an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank. In the first schedule of the Ordinance were included offences under sections 403, 406, 408, 409. 467, 468, 471, 472, 473, 475 and 477‑A, P.P.C. and offences under the Ordinance and any attempt or conspiracy to commit or any abetment of any of the aforesaid offences. Subsection (3) of the said section provides that all cases relating to scheduled offences pending in any Court other than a Special Court immediately before the commencement of the said Ordinance shall on such commencement stand transferred to the Special Court. The Special Judges (Central) transferred these cases to this Court in pursuance of said provision of law.

4. Subsection (2) of section 4 of the said Ordinance, lays down that Federal Government may from time to time by notification in the official gazette include in the first schedule such other offences as it deems necessary or expedient and subsection (4) of said section of the said Ordinance lays down that 'whenever any offence is included in the First Schedule under subsection (2) all cases relating to that offence pending in any Court other than a Special Court, immediately before such inclusion, shell stand transferred to the Special Court having jurisdiction over such cases. Under Notification No. SRO 396(1)/85, dated 28th April, 1985, published in Gazette Extraordinary Part II, dated 28‑4‑1985, offences under sections 201, 204, 217, 218, 380, 419 and 420, P.P. C. and offence under section 5 of the Prevention of Corruption Act, 1947 (II of 1947) were added in the First Schedule. Some of the cases received already and mentioned above include these newly added offences also. However, in view of the above notification other cases belonging to National Saving Centres are likely to be sent by learned Special Judges (Central) to this Court in pursuance of above‑mentioned subsection (4) of section 4 of the said Ordinance.

5. However, this Court has jurisdiction to try cases of offences alleged .to have been committed in respect of a bank or in connection with the business of a bank. It is not unless the offences alleged to have been committed are in respect of a bank or in connection with the business of a bank that this Court has jurisdiction to try any person accused of commission of such offences. The question, therefore, is what is a bank. The word 'bank' as used in the a/m definition of a scheduled offence has been defined in section 2(s) of the Ordinance. It runs as below:‑

Section 2. Definition:‑ In this Ordinance unless there is anything repugnant in the subject or context:‑

(a) bank has the same meaning as in the Banks (Nationalization) Act, 1974 (XIX of 1974), and includes:‑

(i) a scheduled bank as defined in the State Bank of Pakistan Act 1956 (XXXIII of 1956),

(ii) the Pakistan Industrial Credit and Investment Corporation, the Investment Corporation of Pakistan, the National Development Finance Corporation, the Bankers Equity Limited and the National Investment Trust,

(iii) A Government Saving Bank to which the Government Saving Banks Act, 1973 (V of 1873), applies, and

(iv) such other company, institution or body as the Federal Government may, by notification in the official Gazette declare to be a bank for the purposes of this Ordinance.

In the opening portion of the above definition of the word 'bank', from the word 'include' used therein, it appears the real meaning of the word bank in this Ordinance is the one assigned to it in Banks (Nationalization) Act, 1974, and other meaning given to it in clauses (i), (ii) and (iii) of said subsection (a) of section 2 are extensions of the original basic meaning of the said word to entities not originally contemplated in the original definition of the said word as defined in Banks (Nationalization) Act, 1974. The definition of the word 'bank' in the said statute is given in section 3 thereof. It runs as below Section 3. Definition: In this Act, unless there is anything repugnant in the subject or context:

(1) "bank" means:‑

(a) a company registered under the Companies Act, 1913 (VII of 1913), and transacting, in or outside Pakistan, the business of banking as defined in clause (b) of section 5 of the Banking Companies Ordinance, 1962 (LVII, of 1962), in respect of which no proceedings under Part‑ III of Part IV of the said Ordinance have been taken or are pending immediately before the commencing day; and (b) a banking company incorporated by or under any law within the legislative competence of Parliament, including the State Bank, but does not include:‑

(i) a bank which is an enemy firm within the meaning of the Defence of Pakistan Rules, or (ii) a banking company incorporated outside Pakistan and transacting banking business in Pakistan, or

(iii) a co‑operative bank registered under the Co‑operative Societies Act, 1925 (VII of 1925), or any other law for the time being in force, relating to co‑operative societies, or

(iv) a Government Savings Bank to which the Government Savings Banks Act, 1873 (V of 1873), applies, or

(v) a corporation or company owned or controlled by a Province and carrying on banking business only within that Province.

The basic factor in the above definition of 'bank' is that it should either be a company registered under the Companies Act, 1913 (VII of 1913), or a banking company incorporated by or under any law within the legislative competence of parliament including the State Bank. It is, clear that National Saving Centres are neither Companies registered under Companies Act, 1913, nor are banking companies incorporated by or under any law of the Federal legislature.

6. Furthermore, in the said definition of the word 'bank', one made in clause (a) of subsection (1) of section 3 of the Banks Nationalization Act, 1974, is relevant to show the nature of actual functions assigned to the bank. It states that bank means a company registered under Companies Act, 1913 (VII of 1913), transacting the business of banking as defined in clause (b) of section 5 of the Banking Companies Ordinance, 1962 (LVII of 1962). The said clause (b) of section 5 of the said statute defines banking unless there is anything repugnant in the subject or context to mean the accepting for the purpose of lending or investment, of deposits of money, from the public, repayable on demand or otherwise, and withdraw-able by cheque draft, order or otherwise. This is the basic meaning of word 'banking' and a company who transacts the business of banking so defined is a bank. It is true that section 7 gives other forms of business in which banking company may engage but those are, by the very terms of the said section functions in addition to the said basic business of banking of a bank. It is the business of banking as defined above which gives to the said financial institution the distinctive character and name of a bank and without transacting that business it may be anything but not a bank. It is in the light of this conclusion of mine that I think I should scrutinise whether National Saving Centres are banks within the meaning of the basic definition of the word 'bank' in the Ordinance.

7. In order to come to a correct conclusion in that regard, it is necessary to find out the functions being performed by National Saving Centres in normal course of their duties. In that connection I examined on 15‑9‑1985 Mr. Fakhar‑ud‑Din Siddiqui, Chief Law Officer, Central Directorate of National Savings, Islamabad, who stated that National Saving Centres do receive deposits from the public but do not lend money to members of the public or in other words, they do not accept deposits for the purpose of lending or investment‑of same. Lending of the money received through deposits or investment of the same in profitable ventures is a distinctive function which distinguishes a bank from other financial institutions. Since National Saving Centres do not perform the basic function of Investing of money received by them in D deposits from the public, they cannot be said to be transacting the business of banking and are, therefore, not banks. The said witness, Fakhar‑ud‑Din Siddiqui who being the law officer of Central Directorate of National Savings, Islamabad, can be said to be fully aware of the purpose for which National Saving Centres were established, further stated that National Saving Centres were established to execute the schemes floated by the Government. The statement of Fazal Hussain Bismal, National Saving Officer, made before me shows that one of such schemes is the sale of National Prize. Bonds of different denominations. It therefore, appears that National Saving Centres were established to execute schemes floated by the Government to promote thrift and savings amongst the masses but were not meant to be banks as it was not a feature of anyone of the schemes of the Government to permit National Saving Centres to invest money received by them from deposit of savings by masses and are not, therefore, banks. Thus the National Saving Centres do not fall within the basic clause in the definition of the bank given in section 2(a) of the Ordinance and are not banks so far as that basic definition is concerned.

8. Clause (i), (ii) and (iii) of section 2 of the Ordinance give enlarged definition of the word 'bank' as is clear from the use of the word includes given in the said definition. As far clause (i), no argument is needed to show that National Saving Centres are not scheduled banks, declared so by State Bank of Pakistan under section 37 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956), as they are not banks which could be so declared. They do riot fall under clause (ii) either as they are not corporations named in said clause nor anyone of them is Bankers Equity Limited or National Investment Trust. As for clause (iii), the National Saving Centres are not Government Saving Banks as they have not been named so and it is nowhere laid down in any statute that the Government Savings Banks Act, 1873 (V of 1873) applies to them.

9. The only clause of extension of meaning of the word 'bank' now left to be dealt with is clause (iv) of section 2(a) of the Ordinance which provides that the word 'bank' includes such other company, institution or body as the Federal Government may, by notification in the official Gazette declare to be a bank for the purposes of the Ordinance. Learned counsel for the accused in the beginning were not aware whether any such notification had been issued by the Government and wanted me to seek information from the Federal Government but at the same time their submission was that National Saving Centres are not companies, institutions or bodies and as such the Federal Government had no power to declare the National Saving Centres as Banks and, therefore, even if there was any such notification, it was in excess of power of the Federal Government and was a nullity in the, eye of law. This submission of learned counsel for the accused does not appear to be without force. National Saving Centres are obviously not Companies as they do not stand incorporated under Companies Act, 1913 and, cannot, therefore, be declared to be banks by the Government in exercise of its power under clause (iv) of section. 2(a) of the Ordinance. The words next to company in the said clause are 'institution or body. The well‑known principle of ejusdem generis says that when general words follow a specific word, the general words taken their colour from the specific word and must be interpreted to embrace only the things of the same kind or category as is designated by the specific word used earlier to them. In Companies Act, 1913 (VII of 1913), section 2(2) defines Company to mean a Company formed and registered under the Act. A company is formed under sections 4 to 20 of the said Act while registration of memorandum of a company takes place under section 22. It is given in section 23 of the said Act that on the registration of the memorandum, the Registrar shall certify that the company is incorporated and from the date of incorporation, subscribers of the memorandum together with such persons as may from time to time become members of the company shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal. The detailed recital of this section shows that the basic feature of a company in the context of section 2(a) (iv) of the Ordinance is that it should have independent existence and should have the power to govern its affairs by itself. Seen in this light, the words institution or body which succeed the word company in this clause mean institution or body which is an entity by itself and can act independently of any other entity or organization. However, it was, conceded by the Finance Division of Government of Pakistan, in its reference Exh. P.B. to Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad (produced by Fakhar‑ud‑Din Siddiqi, the said Chief Law Officer), that Central Directorate of National Savings (under which National Saving Centres function) is an attached department of Ministry of Finance. In the document mark 'A', put by the said law officer on record, the above stand of the referring department, namely, Finance Division was accepted by the Solicitor of Justice Division of Government of Pakistan, Islamabad, to be correct. It is, therefore, clear that National Saving organization is an attached department of the Finance Division of Government of Pakistan or in other words it is part of the machinery of the Government and Is not an independent self‑contained 'body having a separate entity of its own and cannot, therefore, be and could not, therefore, have been declared to be a bank under said clause (iv) of section 2(a) of the said Ordinance.

10. In the document Exh. P.A. of the Justice Division of Government of Pakistan it was opined that National Saving Centres can perhaps still be declared as banks under said clause (fv) of subsection (a) of section 2 of the said Ordinance and Ministry of Finance may be moved to do the needful in the matter immediately. Nothing has been brought on record to show what correspondence got exchanged in the said two departments of the Federal Government thereafter, but the finalized position has come before this Court today In the shape of letter No. P. 1(257) N‑1/75 (Part. File), dated 2‑10‑1985 addressed by Assistant Director (Admit.) Central Directorate of National Savings, Islamabad to Joint Director, National Savings, Lahore, copy sent by post to this Court and Raja Muhammad Yaqoob, Special Prosecutor, that National Savings organization being an attached department of Finance Division is not a bank and is neither covered under the Offences in Banks (Special Courts) Ordinance, 1984, nor it is intended to be covered and, therefore, the cases of offences. committed in or in regard to National Saving organization would continue to be dealt with by the Courts of Special Judges (Central). This letter clinches the matter and by implication shows that neither any notification declaring the National Saving Centres as bank could be nor any has been issued, so far.

11. On one occasion, the Deputy Attorney‑General had obtained adjournment in the case on the ground that since National Saving Centres are also financial institutions which need same protection from inroads of the crime, in the interest of uniformity, the Government on his motion or otherwise may like to amend section 2(a) by ex post facto legislation and include with retrospective effect the National Saving Centres in the definition of a bank through an independent clause, However, this hope was also shattered by a categorical and unequivocal statement in the letter mentioned above, that the Government is not amending the said Ordinance so as to include the National Saving Centres in the definition of the word bank. Thus the expectation that this Court would be invested with jurisdiction on the basis of retroactive legislation in the Ordinance has also not fructified and National Saving Centres continue to remain excluded from the ambit of the word 'bank' as defined in section 2(a) of the Ordinance.

12. For the foregoing reasons, I hold that National Saving Centres are not banks within the meaning of the word 'bank' as defined in subsection (a) of section 2 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and offences enumerated in First Schedule appended to the said Ordinance and committed in respect of and in connection with the business of National Saving Centre's are not scheduled offences as defined in subsection (a) of section 2 of the said Ordinance and this Court has, therefore, no jurisdiction to try the accused for the said offences.

In consequence, I direct that all the above cases be sent back to the Courts of Special Judge (Central) from whom the said cases had) been received in this Court.

The accused shall appear before learned Special Judge (Central) on 7‑12‑1985.

M.Y.H. Cases returned.

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