IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE FAISAL ARAB 
 
CIVIL APPEALS NO. 2561 TO 2568 OF 2016 AND CIVIL 
PETITION NOS. 2779-L TO 2785-L, 2793-L, 3182-L, 3183-L, 
3224-L, 3225-L, 3328-L, 3253-L, 3299-L, 3300-L, 3345-L, 
3553-L TO 3557-L OF 2016 AND CRIMINAL PETITION NO. 
1050-L OF 2016 
(On appeal against the judgment dated 26.05.2016, 27.09.2011, 17.11.2016 and 23.06.2016 of the 
Lahore High Court, Lahore passed in W.P. No.31284, 35792, 36199, 36555 & 36556 of 2015, 
6720/2016, 3932/2011, 36331/2015, 22010/2013, 22011/13, 22013/13, 22015/13, 13821/16, 
13845/16, 13855/16, 22012/2013, 9712/2009, 14030/2011, 1379/2011, 4428/2011, 23901/2009, 
1456-Q/2012, 15460/2011, 15461/2011, 19532/2014, 14898/2011, 19731/2012, 19732/2012, 
19733/2012, 19734/2012 and Crl.Rev.487/2016 respectively) 
 
Syed Mushahid Shah etc.   
 
 
 
(in CA 2561/16) 
Mian Naseer Ahmed, etc. 
 
 
 
(in CA 2562/16) 
Tahir Naseem, etc. 
 
 
 
 
(in CA 2563/16) 
Umar Hayat, etc.  
 
 
 
 
(in CA 2564/16) 
Muhammad Shafique 
 
 
 
 
(in CA 2565/16) 
Naseer Ahmed  
 
 
 
 
 
(in CA 2566/16) 
Pervaiz Sadiq, etc.  
 
 
 
 
(in CA 2567/16) 
Jahangir Ahmed & others 
 
 
 
(in CA 2568/16) 
…Appellant(s) 
Gulshan Spinning Mills Ltd, etc.  
 
 
(in CP 2779-L/16) 
Gulistan Textile Mills Ltd, etc.                  (CPs 2780-L to 2782-L/16) 
Haji Iftikhar-ud-Din, etc.  
 
 
 
(in CP 2783-L/16) 
Noureen Imran, etc. 
 
 
 
 
(in CP 2784-L/16) 
Muhammad Ahsan, etc.  
 
 
 
(in CP 2785-L/16) 
Hassan Aftab  
 
 
 
 
 
(in CP 3182-L/16) 
Hamid Waheed Khawaja  
 
 
 
(in CP 3183-L/16) 
Dr. Hassan Sohaib Murad  
    (CPs 3224-L to 3225-L,3299-L/16) 
Sheikh Niaz Anjum, etc.  
 
 
 
(in CP 3328-L/16) 
Shamsher Ali 
 
 
 
 
 
(in CP 3253-L/16) 
Gulraiz Akbar  
 
 
 
 
 
(in CP 3300-L/16) 
Irfan Ahmed Ayub  
 
 
 
 
(in CP 3345-L/16) 
Amir Saleem Anwar Khan, etc.  
 
 
(in CP 3553-L/16) 
Naeem Omer                                                 (CPs 3554-3556-L/16) 
Farrukh Mehmood Butt, etc.                             (in Cr.P.1050-L/16) 
 
…Petitioner(s) 
VERSUS 
Federal Investment Agency, etc.                      (CAs 2561-2563/16) 
Government of Pakistan, etc.                       (in CAs 2564,2565/16) 
S.H.O. PS Bhikki District Sheikhupura, etc.           (in CA 2566/16) 
The Bank of Punjab, etc.         (CA 2567/16, CPs 2783-L to 2785-L) 
Government of Pakistan thr. Secretary M/o  
Law Justice Human Rights and Parliamentary  
Affairs Islamabad & others                                     (in CA 2568/16) 
Burj Bank Ltd, etc.                       (CPs 2779 to 2782-L, 2793-L/16) 
The State through Advocate General Punjab etc. (in CP 3182-L/16) 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 2 - 
 
S.H.O. PS Sarwar Road, Lahore, etc.                   (in CP 3183-L/16) 
S.H.O. PS Qila Gujjar Singh,                        (CPs 3224-L, 3299-L & 
Lahore, etc.                                                                   3300-L/16) 
S.H.O. PS Civil Lines, Lahore, etc.                       (in CP 3225-L/16) 
S.H.O. Police Station, B-Division, Okara, etc.      (in CP 3328-L/16) 
S.H.O. PS Purani Anarkali, Lahore, etc.              (in CP 3253-L/16) 
S.H.O. Civil Line, Gujrat, etc.                              (in CP 3345-L/16) 
The State, etc.                                                     (in CP 3553-L/16) 
Additional Sessions Judge, Lahore, etc.        (CPs 3554-3557-L/16) 
Askari Bank Ltd, etc.                                       (in Cr.P. 1050-L/16) 
 
…Respondent(s) 
 
For the Appellant(s): 
(in CA 2561/16) 
 
 
 
(in CAs 2562-2568/16) 
 
Mr. Shahid Ikram Siddiqi, ASC.  
(also for petitioners in CPs 3182, 3183, 3224, 3225, 
3228, 3299, 3300-L/16) 
(did not appear on 01.03.2017) 
 
Mr. Salman Aslam Butt, Sr. ASC. 
(also for petitioners in CPs 2779-2785, 2793-L/16) 
 
For the Petitioners(s): 
(in CP 3253-L/16) 
(in CP 3345-L/16) 
(CPs 3553-3557-L/16) 
(in Crl.P 1050-L/16) 
 
 
Nemo. 
Mr. Haq Nawaz Chatha, ASC. 
Mr. Shazaib Masud, ASC. 
(did not appear on 01.3.2017) 
Mian Asghar Ali, ASC. 
 
For the Respondent(s):  
For Bank of Punjab 
 
 
 
For First Women Bank 
& UBL 
 
For Burj Bank 
 
For MCB 
 
For FIA 
 
 
For the State: 
 
 
Mr. Rashdeen Nawaz Qasuri, ASC. 
Sardar Qasim Farooq Ali, ASC. 
Mr. Amir Wakeel Butt, ASC. 
 
Mr. Abdul Hameed Chohan, ASC. 
 
 
Raja Nadeem Haider, ASC. 
 
Nemo. 
 
Mr. Sajid Ilyas Bhatti, DAG. 
Raja Abdul Ghafoor, AOR. 
 
Mr. Razzak A. Mirza, Addl. AG, Pb. 
Rana Abdul Majeed, Addl. PG. 
 
 
 
Dates of Hearing:  
21, 22, 28.02.2017 and 01.03.2017 
... 
JUDGMENT 
MIAN SAQIB NISAR, CJ.— These appeals with the leave of 
the Court and petitions for leave to appeal (civil and criminal) are being 
disposed of together as they involve a common question of law: whether 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 3 - 
 
the Banking Courts constituted under the Financial Institutions 
(Recovery of Finances) Ordinance, 2001 (the Ordinance, 2001) have exclusive 
jurisdiction to try the offences mentioned therein to the exclusion of the 
Special Courts constituted under the Offences in Respect of Banks 
(Special Courts) Ordinance, 1984 (the ORBO), the courts of ordinary 
criminal jurisdiction under the Code of Criminal Procedure, 1898 (the 
Code) read with the Pakistan Penal Code, 1860 (the PPC) and from inquiry 
and investigation by the Federal Investigation Agency (the Agency) under 
the Federal Investigation Agency Act, 1974 (the Act, 1974). 
2. 
 
The 
appellants/petitioners 
are 
customers 
of 
the 
respondents (financial institutions) who may be divided into two categories. 
In the first category, the customers are alleged to have committed 
offence(s) of either removing the hypothecated or pledged goods, 
disposing of the mortgaged properties and/or of breaching the terms of 
the finance agreement, instrument, etc. The financial institutions filed 
complaints against them before the Special Courts constituted under 
the ORBO and the Agency under the Act, 1974. In the second category, 
cheques issued by the customers to the financial institutions were 
dishonoured and cases (FIRs) were registered against the former under 
the provisions of Section 489-F of the PPC. Aggrieved, the customers 
approached the learned High Court directly by filing either constitution 
or revision petitions, or under Section 561-A of the Code, claiming that 
action could only be taken against them under the Ordinance, 2001 (in 
particular Section 20 thereof) and no other law, and exclusive jurisdiction 
vests with the Banking Courts constituted under the said Ordinance. 
Through the impugned judgments, the learned High Court dismissed 
the matters holding that concurrent jurisdiction vests in the Banking 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 4 - 
 
Courts constituted under the Ordinance, 2001, the Special Courts 
constituted under the ORBO, the ordinary criminal courts and the 
Agency, and the jurisdiction of the latter two courts and the Agency 
would not be ousted on account of Sections 4 and 20 of the Ordinance, 
2001. Thereafter, the customers approached this Court and leave in the 
appeals was granted in the following terms:- 
 
“It is contended by the learned counsel for the Petitioners 
that by way of the impugned judgment dated 26.05.2016 
passed in Writ Petition No.33423 of 2013, titled Faisal 
Farooq and 3 others v. SHO and another, the learned 
Lahore High Court has misinterpreted Sections 7(4) and 
20 of the Financial Institutions (Recovery of Finances) 
Ordinance, 2001, to hold that the Banking Court did not 
have exclusive jurisdiction to try offences mentioned in 
the Ordinance of 2001 and that criminal proceedings can 
be launched independently in a forum, which is mentioned 
in the said Ordinance, 2001. It is further contended that 
the learned Lahore High Court has failed to take into 
consideration the dictum laid down by this Court in the 
judgment, reported as Waris Meah v. The State and 
another (PLD 1957 Supreme Court (Pak.) 157) and the 
Articles 4, 10-A and 25 of the Constitution of Islamic 
Republic of Pakistan, 1973. 
2. 
Leave is granted, inter alia, to consider the 
aforesaid contentions of the learned counsel for the 
petitioners.” 
 
The extensive arguments of the learned counsel for the parties are not 
recorded separately, but shall be reflected during the course of this 
opinion.  
3. 
 
We begin with the concept of general and special law. 
General law is one that is unrestricted in terms of its applicability to all 
issues covered by its subject matter. In juxtaposition special law may be 
restricted to certain localities, persons or types of cases. Whether a law 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 5 - 
 
is general or special depends on the particular features of the statute in 
issue and is ultimately a question of relativity between two or more 
statutes on the common subject matter. The PPC is a comprehensive 
code for creating all criminal offences in Pakistan and applies 
throughout the country (Section 1). Every person is liable to punishment 
under the PPC for every act or omission contrary to its provisions (Section 
2). Accordingly, the PPC is undoubtedly a general law. Similarly, the 
Code is also a general law as it applies to the whole of Pakistan [Section 
1(2)] and deals with investigation, inquiry and trial etc. of all offences 
under the PPC [Section 5(1)].  
4. 
 
Initially, all criminal offences (barring a few) in Pakistan were 
tried by the courts of ordinary criminal jurisdiction under the Code and 
the PPC, i.e. the general law, and this included offences committed with 
respect to banks. Subsequently, the Banking Companies (Recovery of 
Loans) Ordinance, 1978 (the Ordinance, 1978) was promulgated to provide 
for a summary procedure for recovery of loans of banking companies 
and connected matters. Section 3 of the Ordinance, 1978 provided that 
“The provisions of this Ordinance shall be in addition to and, save as hereinafter 
expressly provided, not in derogation of any other law for the time being in force.” 
According to this law, banking disputes pertaining to the recovery of 
loans by a banking company from a borrower were made subject to the 
jurisdiction 
(civil 
and 
criminal) of the Special Courts constituted 
thereunder, and no Court other than a Special Court was to possess or 
exercise any jurisdiction with respect to any matter to which the 
jurisdiction of such Court extended under the Ordinance, 1978 [Section 
8(4)]. Banking offences (and their punishments) 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 6 - 
 
evident from its salient features, the Ordinance, 1978 was a special law. 
The Ordinance, 1978 was repealed and replaced with the Banking 
Companies (Recovery of Loans) Ordinance, 1979 (the Ordinance, 1979) 
which re-enacted the former with some modifications.  
4. 
 
On 31.12.1984, the Banking Tribunals Ordinance, 1984 (the 
Ordinance, 1984) was promulgated to provide a machinery for the recovery 
of finance provided by banking companies under a system of financing 
which is not based on interest (Preamble). This law closely followed the 
Ordinance, 1979 to quite an extent. One major difference was the 
phrase “without prejudice to any other action which may be taken against him under 
this Ordinance or any other law for the time being in force” which appeared in the 
provisions relating to offences (Section 7). In 1997, both the Ordinances of 
1979 and 1984 were repealed and replaced by the Banking Companies 
(Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 
(the Ordinance, 1997) which eventually culminated into the Banking 
Companies (Recovery of Loans, Advances, Credits and Finances) Act, 
1997 (the Act, 1997). The Act, 1997 essentially amalgamated the 
Ordinances of 1979 and 1984 creating one single statute for banking 
companies to recover loans or finances (interest based and interest-free) from 
borrowers or customers respectively. Like its predecessors, the Act, 
1997 contained a non-derogation clause, and the ‘without prejudice’ 
clause in the provisions relating to offences (Section 19), akin to the one in 
the Ordinance, 1984. The Ordinances of 1984 and 1997 and the Act, 
1997 were indubitably special laws, containing features similar to those 
of the Ordinances of 1978 and 1979. 
6. 
 
The final link in the chain is the Ordinance, 2001. It 
repealed and re-enacted the Act, 1997, albeit with certain modifications. 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 7 - 
 
The Ordinance, 2001 established Banking Courts which deal with 
disputes (civil and criminal) between financial institutions and customers in 
respect of finances availed by the latter. Sections 4, 7 and 20 of the 
Ordinance, 2001 are important and read as follows:- 
 
4. Ordinance to override other laws. The provisions of this 
Ordinance, shall have effect notwithstanding anything 
inconsistent therewith contained in any other law for the 
time being in force. 
 
7. Powers of Banking Courts.–(1) Subject to the provisions 
of this Ordinance, a 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 Sessions 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 
authorised in this behalf by the financial institution in 
respect of which the offence was committed.  
… 
(4) 
Subject to sub-section (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 sub-section (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 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 8 - 
 
(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 coming into force of this 
Ordinance.  
 
20. Provisions relating to certain offences.– (1) Whoever– 
(a) dishonestly commits a breach of the terms of a letter of 
hypothecation, trust receipt or any other instrument or 
document executed by him whereby possession of the 
assets or properties offered as security for the re-
payment of finance or fulfillment of any obligation are 
not with the financial institution but are retained by or 
entrusted to him for the purposes of dealing with the 
same in the ordinary course of business subject to the 
terms of the letter of hypothecation or trust receipt or 
other instrument or document or for the purpose of 
effecting their sale and depositing the sale proceeds 
with the financial institution; or  
(b) makes fraudulent mis-representation or commits a 
breach of an obligation or representation made to a 
financial institution on the basis of which the financial 
institution has granted a finance; or 
(c) subsequent to the creation of a mortgage in favour of a 
financial institution, dishonestly alienates or parts with 
the possession of the mortgaged property whether by 
creation of a lease or otherwise contrary to the terms 
thereof, without the written permission of the financial 
institution; or 
(d) subsequent to the passing of a decree under section 10 
or 11, sells, transfers or otherwise alienates, or parts 
with possession of his assets of properties acquired 
after the grant of finance by the financial institution, 
including assets or properties acquired benami in the 
name of an ostensible owner 
 
shall, without prejudice to any other action which may 
be taken against him under this Ordinance or any 
other law for the time being in force, be punishable 
with imprisonment of either description for a term 
which may extend to three years and shall also be liable 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 9 - 
 
to a fine which may extend to the value of the property 
or security as decreed or the market value whichever is 
higher and shall be ordered by the Banking Court 
trying the offence to deliver up or refund to the 
financial institution, within a time to be fixed by the 
Banking Court, the property or the value of the property 
or security. 
 
 
Explanation.– Dishonesty may be presumed where a 
customer has not deposited the sale proceeds of the 
property with the banking company in violation of the 
terms of the agreement between the financial institution 
and the customer. 
 
(2) Whoever knowingly makes a statement which is 
false in material respects in an application for finance 
and obtains a finance on the basis thereof, or applies 
the amount of the finance towards a purpose other than 
that for which the finance was obtained by him, or 
furnishes a false statement of stocks in violation of the 
terms of the agreement with the financial institution or 
falsely denies his signatures on any banking document 
before the Banking Court, shall be guilty of an offence 
punishable with imprisonment of either description for 
a term which may extend to three years, or with fine, or 
with both. 
 
(3) Whoever resists or obstructs, either by himself or on 
behalf of the judgment debtor, through the use of force, 
the execution of a decree, shall be punishable with 
imprisonment, which may extend to one year, or with 
fine, or with both. 
 
(4) Whoever dishonestly issues a cheque towards re-
payment of a finance or fulfillment of an obligation 
which is dishonoured on presentation, shall be 
punishable 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. 
 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 10 - 
 
(5) ………………………………………………………… 
 
[(6) 
All offences under this Ordinance shall be 
triable by a Banking Court in accordance with section 
7. All offences, except for the offence of willful default, 
shall be bailable, non-cognizable and compoundable.]1 
 
[(7) 
Notwithstanding anything to the contrary 
provided in any other law for the time being in force, 
action in respect of an offence of willful default shall be 
taken by an investigating agency, to be nominated in 
this behalf by the Federal Government, on a complaint 
in writing filed by an authorized officer of a financial 
institution after it has served a thirty days (sic) notice 
upon the borrower demanding payment of the loan, 
advance or financial assistance.]2 
 
(8) An offence of willful default shall be cognizable, 
non-bailable and non-compoundable and punishable 
with imprisonment which may extend to seven years or 
fine not exceeding the amount of default or with both. 
 
(9) ………………………………………………………… 
[Emphasis supplied] 
 
Like its predecessor statutes, the Ordinance, 2001 is also a special law 
as it created a special forum, i.e. Banking Courts, to deal with the 
recovery of finance by financial institutions from customers, and 
created certain offences in respect thereof which were also to be tried by 
such Courts. The Ordinance, 2001 basically carved out a portion of the 
jurisdiction of the ordinary courts, both civil and criminal. 
7. 
 
A few months before the Ordinance, 1984 was enacted the 
ORBO was promulgated on 23.02.1984. It provides for the speedy trial 
of certain offences committed in respect of banks and for matters 
connected therewith or incidental thereto (Preamble). Special Courts were 
                                       
1 Subs. and added by Act XXXVIII of 2016, Section 9. 
2 Ibid.  
Civil Appeals No.2561 of 2016 etc.                                                                                          - 11 - 
 
created (Section 3) to try ‘scheduled offences’ defined in Section 2(d) 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;” Clause (a) of the First 
Schedule provides “Any offence punishable under any of the following sections of 
the Pakistan Penal Code (Act XLV of 1860), namely:– Sections [201, 204, 217, 218, 
380]3, 403, 406, 408, 409, [419, 420]4, 467, 468, 471, 472, 473, 475 and 477-A” (some 
of which are subject to certain modifications as set out in the Second Schedule of ORBO read 
with Section 6(2) thereof). Sections 4, 5 and 12 (relevant parts) of the ORBO read 
as under:- 
 
4. Scheduled offence to be tried by Special Court.__(1) 
Notwithstanding anything contained in the Code, the 
scheduled offences shall be triable exclusively by a Special 
Court. 
 
5. Procedure of a Special Court.-(1) A Special Court may 
take cognizance of any scheduled offence upon receiving a 
complaint of the facts which constitute such offence or upon 
a report in writing of such facts made by any police officer. 
 
12. Ordinance to override other laws. The provisions of 
this Ordinance shall have effect notwithstanding anything 
contained in the Code or in any other law for the time being 
in force.  
 
The ORBO created Special Courts which were given exclusive 
jurisdiction to try various offences (Section 4) stipulated in the PPC but 
incorporated into the ORBO by way of legislative reference (scheduled 
offences) which were/are committed in respect of or in connection with 
the ‘business of a bank’. Furthermore, no new offences specific to the 
ORBO were created by it: instead the existing offences in the PPC were 
                                       
3 Inserted by SRO No.396(I)/85 dated 24.8.1985. 
4 Inserted by SRO ibid. 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 12 - 
 
incorporated through legislation by reference (note:- punishment was increased). 
It is patently clear that the ORBO is a special law in light of its 
aforementioned features, as it wrests some of the jurisdiction of the 
ordinary criminal courts. 
8. 
 
As established, the Code and PPC are general laws whilst 
the ORBO and the Ordinance, 2001 are special laws. The appellants’ 
case is that an offence committed in relation to a finance agreement 
inter se the financial institution and the customer, that falls within the 
orbit of the Ordinance, 2001 can only be tried by the Banking Courts 
constituted thereunder and that the Special Courts constituted under 
the ORBO or the ordinary criminal courts under the Code would have 
no jurisdiction. Equally the jurisdiction of the Agency under the Act, 
1974 would also stand excluded by the criminal complaint procedure 
provided in Section 20 of the Ordinance, 2001. In the above 
configuration of laws, does the Ordinance, 2001 have an overriding 
effect over the Code and the PPC, the ORBO and the Act, 1974? 
9. 
 
Section 7(4) of the Ordinance, 2001 confers exclusive 
jurisdiction on the Banking Courts with respect to certain matters 
albeit sub-section (5) creates an exception to the exclusive jurisdiction 
of the Banking Courts. This confers a right on the financial institution 
to seek any remedy before any court or otherwise which may be 
available to it under the law by which the financial institution may have 
been established [Section 7(5)(a)]. According to Section 4 of the Ordinance, 
2001 reproduced above, its provisions “shall have effect notwithstanding 
anything inconsistent therewith contained in any other law for the time being in force.” 
This is essentially a non obstante clause which is defined as “A phrase 
used in documents to preclude any interpretation contrary to the stated object or 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 13 - 
 
purpose.”5 ‘Notwithstanding’ means despite, in spite of or regardless of 
something. In this respect Justice G. P. Singh6 has aptly explained:- 
 
“A clause beginning with ‘notwithstanding anything 
contained in this Act or in some particular provision in the 
Act or in some particular Act or in any law for the time 
being in force’, is sometimes appended to a section in the 
beginning, with a view to give the enacting part of the 
section in case of conflict an overriding effect over the 
provision or Act mentioned in the non obstante clause. It is 
equivalent to saying that in spite of the provision or Act 
mentioned in the non obstante clause, the enactment 
following it will have its full operation or that the 
provisions embraced in the non obstante clause will not be 
an impediment for the operation of the enactment.” 
 
In the judgment reported as Packages Limited through its General 
Manager and others Vs. Muhammad Maqbool and others (PLD 1991 
SC 258) this Court observed:- 
 
“In our opinion a 'non-abstante' (sic) clause operates as an 
ouster of the earlier provisions only where there is a 
conflict and inconsistency between the earlier provisions 
and those contained in the later provision and, therefore, 
must be read in the context in which it is operating. 
Accordingly, a non-obstante clause will operate as ouster 
only if an inconsistency between the two is found to exist.” 
 
In the judgment reported as Muhammad Mohsin Ghuman and others 
Vs. Government of Punjab through Home Secretary, Lahore and 
others (2013 SCMR 85), this Court cited with approval a passage from 
Interpretation of Statutes by N. S. Bindra which reads as under:- 
 
                                       
5 Black’s Law Dictionary (9th Ed.) 
6 Principles of Statutory Interpretation (13th Ed.) 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 14 - 
 
“It has to be read in the context of what the legislature 
conveys in the enacting part of the provision. It should first 
be ascertained what the enacting part of the section 
provides on a fair construction of words used according to 
their natural and ordinary meaning and the non obstante 
clause is to be understood  as  operating  to  set  aside  as  
no  longer  valid anything contained in relevant existing 
law which is inconsistent with the new enactment. The 
enacting part of a statute must, where it is clear, be taken 
to control the non obstante clause where both cannot be 
read harmoniously, for even apart from such clause a later 
law abrogates earlier laws clearly inconsistent with it. 
 
The proper way to construe a non obstante clause is first to 
ascertain  the  meaning  of  the  enacting  part  on  a  fair 
construction of its words. The meaning of the enacting part 
which is so ascertained is then to be taken as overriding 
anything inconsistent to that meaning in the provisions 
mentioned  in  the  non  obstante  clause.  A  non  obstante 
clause is usually used in a provision to indicate that that 
provision should prevail despite anything  to  the  contrary  
in  the  provision  mentioned  in  such non obstante clause. 
In case there is any inconsistency between the non obstante 
clause and another provision one of the objects of such a 
clause is to indicate that it is the non obstante clause which 
would prevail over the other clauses. It does not, however, 
necessarily mean that there must be repugnancy between 
the two provisions in all such cases. The principle 
underlying non obstante clause may be invoked only in the 
case of 'irreconcilable conflict'.” 
 
From the above it is clear that the non obstante clause of Section 4 of 
the Ordinance, 2001 has been used by the legislature to give the 
provisions of the said Ordinance an overriding effect over any other law 
for the time being in force which may be contrary thereto. The use of 
the word ‘notwithstanding’ in Section 4 ibid indicates the legislative 
intent to avoid the operation of conflicting provisions, by providing that 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 15 - 
 
in the event of such conflict, the provisions of the Ordinance, 2001 
would take precedence over any such inconsistent law.  
10. 
 
So, does the Ordinance, 2001 override the provisions of the 
Code and the PPC? This question pertains to the second category of 
cases (identified in the second paragraph of this opinion) in which cheques issued 
by the customers to the financial institutions were dishonoured and 
FIRs were registered against the former under the provisions of Section 
489-F of the PPC. It is a settled canon of interpretation that where there 
is a conflict between a special law and a general law, the former will 
prevail over the latter. In Muhammad Mohsin Ghuman’s case (supra) 
this Court observed that “special statute overtakes the operation of general 
statute”. At this juncture, it is useful to point out certain relevant 
provisions of the Code and the PPC. Section 1(2) of the Code provides 
that “…in the absence of any specific provision to the contrary, nothing herein 
contained shall affect any special or local law now in force, or any special jurisdiction 
or power conferred, or any special form of procedure prescribed, by any other law for 
the time being in force.” According to Section 5(1) of the Code, all offences 
under the PPC “shall be investigated, inquired into, tried, and otherwise dealt with 
according to the provisions hereinafter contained”, whereas sub-section (2) 
thereof states that “All offences, under any other law shall be investigated, 
inquired into, tried and otherwise dealt with according to the same provisions, but 
subject to any enactment for the time being in force regulating the manner or place of 
investigating, inquiring into, trying or otherwise dealing with such offences.” Section 
29(1) of the Code provides “Subject to the other provisions of this Code, any 
offence under any other law shall, when any Court is mentioned in this behalf in such 
law, be tried by such Court.” While Section 5 of the PPC stipulates that 
“Nothing in this Act [PPC] is intended to repeal, vary, suspend or affect any of the 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 16 - 
 
provisions…of any special or local law.” These provisions make it clear that 
not only do the Code and the PPC recognize special laws, but they 
indicate that such general laws would cede to the special laws. The 
phrase ‘for the time being in force’ [in Section 1(2) of the Code] has been 
interpreted by a five member bench of this Court in the judgment 
reported as (1) Mian Iftikhar-ud-Din, and (2) Arif Iftikhar Vs. (1) 
Muhammad Sarfraz Administrator, Progressive Papers Ltd. (2) The 
Government of Pakistan (PLD 1961 SC 585) to mean that it will apply 
not only to those existing statutes enacted in the past, but also to those 
which may be enacted in the future. Thus the Code does not affect any 
special laws including the Ordinance, 2001. 
11. 
 
This overriding effect of Section 20(4) of the Ordinance on 
Section 489-F of the PPC is brought out by the following comparison:- 
 
Inconsistency 
Ordinance, 2001 
PPC 
 
 
Elements of 
the offence 
 
 
 
 
Punishment 
 
 
 
 
 
Burden of 
proof 
20(4). Whoever dishonestly issues 
a cheque towards re-payment of a 
finance or fulfillment of an 
obligation which is dishonoured 
on presentation,  
 
 
shall 
be 
punishable 
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. 
 489-F. 
Dishonestly 
issuing 
a 
cheque. 
Whoever 
dishonestly 
issues a cheque towards repayment 
of a loan or fulfilment of an 
obligation which is dishonoured on 
presentation,  
 
shall 
be 
punished 
with 
imprisonment which may extend to 
three years 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. 
 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 17 - 
 
The above comparison of Sections 20(4) of the Ordinance, 2001 and 
489-F of the PPC suggests that there is a clear conflict between them – 
they are worded in identical terms [save for the word ‘finance’ in Section 20(4) 
as opposed to ‘loan’] but the former provides for a lesser punishment of 
imprisonment which may extend to one year, or with fine or with both, 
whereas the latter stipulates a punishment of imprisonment which may 
extend to three years or with fine, or with both. Therefore Section 489-F 
cannot simultaneously apply to a situation where an offence under 
Section 20(4) of the Ordinance, 2001 is made out on account of the 
disparity in punishment. The law providing greater punishment must 
relent in favour of the law ordaining the lesser punishment. The 
ineluctable conclusion is that the Ordinance, 2001 overrides the Code 
and the PPC where an offence has been committed which falls within 
the purview of the former; and exclusive jurisdiction would vest in the 
Banking Courts constituted thereunder (the Ordinance, 2001) to the 
exclusion of the ordinary criminal courts. 
We are not convinced by the argument of the learned counsel for 
the respondents that the Ordinance, 2001 could not override Section 
489-F of the PPC as the former law was promulgated on 30.08.2001 
whereas the latter was inserted into the PPC by way of amendment on 
25.02.2002, because as mentioned above, the phrase “for the time being in 
force” applies to future enactments as well, thus mere insertion of a 
provision in a general law after the special law comes into force would 
not make the general law override the special law. In fact, this insertion 
after the promulgation of the Ordinance, 2001 negates the respondents’ 
argument for the reason that it shows that the object was to also make 
the dishonouring of cheques to be an offence in ordinary cases apart 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 18 - 
 
from those cases involving a customer and a bank which are dealt with 
by the Ordinance, 2001.  
12. 
 
The other question which arises is, does the Ordinance, 
2001 override the provisions of the ORBO? This relates to the first 
category of cases (identified in the second paragraph of this opinion). As established 
above, both the Ordinance, 2001 and the ORBO are special laws, 
therefore their respective scope and sphere of application needs to be 
examined in order to determine the relationship between the two. In 
other words, which law is the more special? To answer this question, it 
is necessary to elucidate the law on this subject.   
 
Case law from the Indian jurisdiction on this subject is quite 
extensive. In the case of Shri Ramah Narain Vs. The Simla Banking 
and Industrial Co. Ltd. (1956 SCR 603), the Indian Supreme Court, 
while considering the effect of the overriding effect of two special laws, 
held as follows:-   
 
“On the other hand, if the rule as to the later Act 
overriding an earlier Act is to be applied to the present 
case, it is the Banking Companies (Amendment) Act, 1953, 
that must be treated as the later Act and held to override 
the provisions of the earlier Displaced Persons (Debts 
Adjustment) Act, 1951. It has been pointed out, however, 
that section 13 of the Displaced Persons (Debts 
Adjustment) Act, uses the phrase "notwithstanding anything 
inconsistent therewith in any other law for the time being in 
force" and it was suggested that this phrase is wide enough 
to relate even to a future Act if in operation when the 
overriding effect has to be determined. But it is to be 
noticed that section 45-A of the Banking Companies Act 
has also exactly the same phrase. What the connotation of 
the phrase "for the time being" is and which is to prevail 
when there are two provisions like the above each 
containing the same phrase, are questions which are not 
free from difficulty. It is, therefore, desirable to determine 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 19 - 
 
the overriding effect of one or the other of the relevant 
provisions in these two Acts, in a given case, on much 
broader considerations of the purpose and policy 
underlying the two Acts and the clear intendment conveyed 
by the language of the relevant provisions therein.” 
 
In Kumaon Motor Owners’ Union Ltd. and another Vs. The State of 
Uttar Pradesh (AIR 1966 SC 785 = [1966] 2 SCR 122) the Indian 
Supreme Court compared the provisions of the Motor Vehicles Act, 
1939 and the Defence of India Act, 1962, particularly Sections 68-B and 
43 thereof respectively, and held that the latter would prevail over the 
former. In the judgment of Sarwan Singh Vs. Kasturi Lal (AIR 1977 
SC 265), the Indian Supreme Court relied upon Shri Ram Narain’s 
case (supra) and observed as under:- 
 
“When two or more laws operate in the same field and 
each contains a non obstante clause stating that its 
provisions will override those of any other law, stimulating 
and incisive problems of interpretation arise. Since 
statutory interpretation has no conventional protocol, 
cases of such conflict have to be decided in reference to 
the object and purpose of the laws under consideration.” 
[Emphasis supplied] 
 
In Ashok Marketing Ltd. and another Vs. Punjab National Bank and 
others [(1990) 4 SCC 406], the Supreme Court of India referred to the 
cases of Shri Ram Narain, Kumaon Motor Owners’ Union and 
Sarwan Singh (supra) and held as under:- 
 
“The principle which emerges from these decisions is that 
in the case of inconsistency between the provisions of two 
enactments, both of which can be regarded as special in 
nature, the conflict has to be resolved by reference to the 
purpose and policy underlying the two enactments and the 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 20 - 
 
clear intendment conveyed by the language of the relevant 
provisions therein. We propose to consider this matter in 
the light of this principle.” 
 
In Solidaire India Ltd. Vs. Fairgrowth Financial Services Ltd. and 
others [(2001) 3 SCC 71], it was observed:- 
 
“It is clear that both these Acts are special Acts. This Court 
has laid down in no uncertain terms that in such an event it 
is the later Act which must prevail. The decisions cited in 
the above context are as follows: Maharashtra Tubes Ltd. 
v. State Industrial & Investment Corpn of Maharashtra 
Ltd; [1993] 2 SCC 144]; Sarwan Singh v. Kasturi Lal 
[1977] 2 SCR 421]: Allahabad Bank V. Canara Bank 
[(2000) 4 SCC 406] and Ram Narain v. Simla Banking & 
Industrial Co, Ltd. [1956] 1 SCR 603].” 
 
The Court went on to quote, with approval, the ratio of the decision in 
Bhoruka Steel Ltd v. Fairgrowth Financial Services Ltd. [5 (1997) 
89 Comp Cas 547 (Special Court)], the relevant extract of which reads 
as under:- 
 
“It is a settled rule of interpretation that if one construction 
leads to a conflict, whereas on another construction, two 
Acts can be harmoniously constructed then the latter must 
be adopted.” 
 
In Messrs Maruti Udyog Ltd. Vs. Ram Lal and others [(2005) 2 SCC 
638] the Indian Supreme Court relied on Solidaire India’s case (supra) 
and held that:- 
  
“The said Act contains a non-obstante clause. It is well-
settled that when both statutes containing non-obstante 
clauses are special statutes, an endeavour should be made 
to give effect to both of them. In case of conflict, the latter 
shall prevail." 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 21 - 
 
The Indian Supreme Court in State of Bihar and others Vs. Bihar 
M.S.E.S.K.K. Mahasangh and others (AIR 2005 SC 1605) reiterated 
the principles in Swaran Singh’s case (supra) and the Principles of 
Statutory Interpretation by Justice G. P. Singh (9th Ed.). In Morgan 
Securities and Credit Pvt. Ltd. Vs. Modi Rubber Ltd. (AIR 2007 SC 
683), it was held that:- 
  
“Both the Acts contain non-obstante clauses. Ordinary rule 
of construction is that where there are two non obstante 
clauses, the latter shall prevail. But it is equally well-
settled that ultimate conclusion would depend upon the 
limited context of the statute.” 
 
In 
the 
judgment 
reported 
as 
Employees 
Provident 
Fund 
Commissioner Vs. O. L. of Esskay Pharmaceuticals Limited (AIR 
2012 SC 11) the Court reiterated the principles enunciated in the 
cases of Shri Ram Narain, Kumaon Motor Owners’ Union and Ashok 
Marketing (supra) and held that:- 
  
“Another rule of interpretation of Statutes is that if two 
special 
enactments 
contain 
provisions 
which 
give 
overriding effect to the provisions contained therein, then 
the Court is required to consider the purpose and the policy 
underlying the two Acts and the clear intendment conveyed 
by the language of the relevant provisions.” 
  
13. 
 
As regards the case law from the Pakistani jurisdiction, in 
the judgment reported as State Vs. Syed Mir Ahmed Shah and 
another (PLD 1970 Quetta 49) Justice Muhammad Afzal Zullah 
comprehensively dealt with the issue of implied repeal. He discussed 
and compared the various features of the Pakistan Criminal Law 
Amendment Act (XL of 1958) and the Criminal Law (Special Provisions) 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 22 - 
 
Ordinance (II of 1968) and concluded that for an accused person the 
mode of trial under the Act is far more beneficial than that under the 
Ordinance, that both the statutes are inconsistent with each other and 
clearly exclude the application of the other. He enunciated the accepted 
general principles for the avoidance of conflict between different 
statutes as under:- 
 
“(i) If the provisions of a later Act are so inconsistent with 
those of an earlier Act that both cannot stand together, the 
earlier stands impliedly repealed by the later. This 
principle is based on the maxim leges posteriores priores 
contrarias abrogant. In other words, it means that the 
latest expression of the will of the Legislature must prevail. 
This, of course, is subject to the condition contained in the 
next principle. That is: if the prior enactment is special and 
the subsequent enactment is general, the earlier special 
Legislation will not be, indirectly, repealed, altered or 
derogated from merely by force of the general words of the 
later statute, without any indication of a particular strong 
intention to do so. 
  
(ii) A general later law does not abrogate, by mere 
implication, an earlier particular or special law which 
deals with a special object or a special class of objects. 
This principle is based on the maxim generalia specialibus 
non derogant. But when a general Act is incorporated into 
a special one, the provisions of the latter would prevail 
over any of the former with which they are inconsistent. If 
one statute enacts something in general terms, and 
afterwards another statute .is passed on the same subject, 
which, although expressed in affirmative language, 
introduces 
special 
conditions 
and 
restrictions, 
the 
subsequent statute will usually be considered as repealing 
by implication the former, for "affirmative statutes 
introductive of a new law do imply a negative". However, if 
a subsequent statute merely creates an exception from the 
operation of a previous statute, the previous statute is not 
necessarily repealed. 
  
Civil Appeals No.2561 of 2016 etc.                                                                                          - 23 - 
 
(iii) When the later of two general enactments is couched in 
negative terms or in such affirmative terms which 
unequivocally involve negative which proves fatal to the 
earlier enactment, the earlier one is impliedly repealed. 
  
(iv) When the two statutes are expressed in negative terms, 
they may be affirmative inter se and may not be 
contradictory to each other; though the effect of both may 
be that they are negative as regards a third statute ‘at 
which both of them may have made some inroads’. When 
seen in this light, an apparent conflict of two statutes is 
found as without any reality. Because they (sic) objects may 
be different and both may be parallel; and each may be 
restricted to its own particular subject or locality. 
  
(v) If the co-existence of the two inconsistent statutes would 
be destructive of the object for which the later was passed, 
the earlier would be deemed to have been repealed. 
  
(vi) In so far as the Penal Acts are concerned, if a later 
statute again describes an offence created by a former one, 
and provides a different punishment, creates a new 
jurisdiction 
and 
remedy 
and 
varies 
the 
procedure-modifying the manner or changing the forum of 
trial or appeal, the earlier statute is impliedly repealed by 
the later unless, of course, both of them can exist in 
parallel application to different localities, subjects or 
objects. 
  
(vii) When the words are clear and capable of proper 
operation, the revocation or alteration of a statute by 
construction is not permissible. The Legislature is normally 
not presumed to have intended to keep two contradictory 
enactments on the statute-book with the intention of 
repealing the one with the other, without expressing an 
intention to do so. Such an intention cannot be imputed to 
the Legislature without some strong reasons and unless it is 
inevitable. Before adopting the last-mentioned course, it is 
necessary for the Courts to exhaust all possible and 
reasonable constructions which offer an escape from 
repeal by implication. 
  
Civil Appeals No.2561 of 2016 etc.                                                                                          - 24 - 
 
(viii) All other consideration being equal, if the 
inconsistency, in spite of applying all general principles of 
interpretation of statutes, cannot be resolved, a statute 
more beneficial in remedy or method of taking action will 
override the statute which is not so beneficial. 
  
The list of the principles on the subject is, by no means, 
exhaustive. Departures from the above principles have 
been made in individual cases on the basis of the language 
used in, and the intention found in respect of, particular 
statute. The approach in Pakistan on various questions of 
interpretation of statutes, as compared to India, has usually 
been pragmatic rather than technical. It was observed in 
the case of Badrul Haque (PLD 1963 SC 704), that "the 
fundamental rule of interpretation to which all others are 
subordinate is that a statute is to be expounded according 
to the intent of them that made it". Therefore, it has to be 
laid down as a governing rule that whenever there are two 
possible interpretations, the one destroying the intention of 
the Legislature in passing the Act should not be adopted. 
But once the intention having been discovered and words 
having been given correct meaning and interpretation, the 
Courts will not refuse to give effect to the Legislation 
merely because it appears to be harsh, unreasonable or 
even vindictive; because these attributes of a statute fall 
within the field of policy of the Legislature and go beyond 
the ambit of the jurisdiction of the Courts. This, of course, 
is subject to the question of mala fides of the Legislature in 
enacting a law and the further question whether or not on 
that basis the Courts can go into validity of a particular 
law. That subject is not relevant to the discussion of the 
present case. Therefore, no comments are made thereon.  
 
The principles laid down in Mir Ahmed Shah’s case (supra) were cited 
with approval in the judgment of this Court reported as I. G. HQ 
Frontier Corps and others Vs. Ghulam Hussain and others (2004 
SCMR 1397). Thus, when there are two special laws both of which 
contain overriding clauses, in the case of conflict between the two laws 
generally the statute later in time will prevail over the statute prior in 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 25 - 
 
time. However, we are of the opinion that this presumption is not 
automatic: instead a host of other factors including the object, purpose 
and policy of both statutes and the legislature’s intention, as expressed 
by the language employed therein, need to be considered in order to 
determine which of the two special laws is to prevail.  
14. 
 
In the light of the above, a comparison of the salient 
features of both the laws is necessary:-  
 
Inconsistency 
Ordinance, 2001 
ORBO 
Object 
Providing a special forum and 
procedure 
for 
redressal 
of 
grievances, both civil and criminal, 
between a “financial institution” 
[Section 2(a)] and a “customer” 
[Section 2(c)] arising out of or in 
relation to “finance” [Section 2(d)] 
[proviso to Section 7(1)(b)] 
 
Providing a forum and procedure 
for trial of offences committed in 
respect of or in connection with the 
“business of a bank” [Sections 2(d) 
and 4] 
Subject 
Civil 
Customer and financial institution 
(Section 9) 
 
Criminal 
Whoever commits an offence in 
relation to obligations arising out of 
the finance in respect of a financial 
institution (Section 20) 
 
 
No civil jurisdiction 
 
 
Criminal 
Any person committing a scheduled 
offence in relation to the business of 
a bank [Sections 2(d) and 4] 
Procedure 
Initiation of proceedings 
Only upon a complaint in writing 
made by a person authorised by the 
financial institution in respect of 
which the offence was committed 
 
No First Information Report as the 
offences are non-cognizable other 
than willful default [Section 20(6)] 
 
Initiation of proceedings 
Upon a complaint by any person; or 
 
 
 
 
A report in writing made by any 
police officer [Section 5(1)] 
 
 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 26 - 
 
Bail  
All offences, other than willful 
default, are bailable [Section 20(6)] 
 
 
 
 
 
 
 
Compounding 
All offences, other than willful 
default, are compoundable [Section 
20(6)] 
 
Forum 
To be exclusively tried by a Banking 
Court [Section 7(4)] 
 
Bail 
Not to be released on bail if there 
appear reasonable grounds of guilt 
[Section 5(6)] 
 
In case of bail, the amount of bail 
bond to be fixed in relation to the 
amount involved and cannot be less 
than such amount [Section 5(7)] 
 
Compounding 
Most of the scheduled offences are 
non-compoundable 
 
 
Forum 
To be exclusively tried by a Special 
Court [Section 4(1)] 
Punishment 
For offences falling in Section 20(1) 
and (2), three years imprisonment 
and fine 
 
For offences falling in Section 20(3) 
and (4), one year imprisonment and 
fine 
 
For the PPC offences in the Second 
Schedule, not less than seven years, 
and/or fine, while the other PPC 
offences in the First Schedule, which 
may extend to seven/three/two/one-
fourth part of the longest term of the 
imprisonment 
provided 
for 
the 
offence, and/or fine (First and 
Second Schedule) 
 
 
Amount of fine to be fixed having 
regard to the gravity of the offence, 
and where the offence is committed 
with respect to a specific amount, 
not less than twice the said amount 
[Section 6(3)] 
 
Impediments 
and burden 
of proof 
 
Dealing with property 
After taking cognizance, an accused, 
relatives of the accused and persons 
acting on his behalf are barred from 
dealing 
with 
moveable 
and 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 27 - 
 
immoveable 
properties 
without 
permission of the Special Court 
(Section 7) 
 
Bar against leaving Pakistan 
After taking cognizance, an accused 
cannot 
travel 
abroad 
without 
permission of the Special Court 
[Section 8(1)] 
 
Bar against employment 
After taking cognizance, an accused 
cannot be employed for any service 
without permission of the Special 
Court [Section 8(2)] 
Burden of proof 
Presumption of guilt against an 
accused and burden of proof on 
accused in respect of his assets as 
well as those of his relatives (Section 
9)  
 
  
15. 
 
As mentioned earlier, Section 4(1) of the Ordinance, 2001 is 
an overriding clause. However, an almost identical overriding clause can 
be found in Section 12 of the ORBO, save for the fact that it does not 
contain the words ‘inconsistent therewith’ after ‘notwithstanding 
anything’. We find this omission to be insignificant, as the legislature’s 
intent is clear; that the provisions of the ORBO be given effect in spite of 
anything contained in the Code or any other law for the time being in 
force. Thus both laws are special and contain competing overriding 
clauses. As stated earlier in this opinion, the object and purpose of the 
ORBO was to create Special Courts to provide for the speedy trial of 
‘scheduled offences’ which are offences committed in respect, or in 
connection with the business of a bank. ‘Business of a bank’ has been 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 28 - 
 
elaborately explained in the judgment reported as A. Habib Ahmed Vs. 
M. K. G. Scott Christian and 5 others (PLD 1992 SC 353) to mean:- 
 
The definition of scheduled offence as contained in section 
2 (d) of the Ordinance does include a rider to be to the 
offences which are mentioned in the schedule and which 
undoubtedly are alleged in this case. The rider is that those 
offences should have been alleged to have been committed 
"in respect of or in connection with the business of bank". 
It needs to be emphasized that the expression "business of 
a bank" used in the definition would have to be given 
extended meaning on account of the use of two such 
further open ended expressions which connote very wide 
meaning for the words "business" and the "Bank". These 
are "in respect of” or "in connection with". The scrutiny of 
the meanings of these words and expressions in the 
classical sources together with the modern usages and 
scope of Banking business, leave absolutely no doubt that 
there will be left out of their ambit only extremely rare 
cases. They somehow or the other, are linked with the 
modern extended banking practices in trade business, 
industry and finance, domestic and other; besides the 
earlier known scope of their operation. Take, for example, 
the word "Business" as separate from the word "Bank". 
Again take all that goes with the modern banking business 
and all that is included in the banking procedures. Not only 
this, banking activities both with regard to the depositors 
dealings as well as dealings in trading and other 
enterprises are their business. There is no need to dilate 
upon the scope of the expressions "in respect of” and "in 
connection with" any further. 
  
…The intention being that all conceivable situations, 
linked with the business of the bank, would make the 
offences mentioned in the schedule as scheduled offences. 
Thus to take away all such cases from the ordinary 
Courts, for purpose of their trial before the Special Courts 
(Banks). 
[Emphasis supplied] 
 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 29 - 
 
Thus the conceptual construct of ‘business of the bank’ and the scope 
of the ORBO are interlinked. Furthermore, the number as well as the 
ambit of the offences specified in the First Schedule to the ORBO is 
relatively wide. The following cases illustrate the variety of offences that 
fall within the purview of the ORBO:- 
i. 
Misappropriation of funds by bank employee – 
Muhammad Yaqub Ali Vs. The State (PLD 1985 
Lah 48); 
ii. 
Forgery of title deeds by mortgagee and non-
verification of documents by bank employee Asif 
Mahmood Vs. The State (1987 PCrLJ 896); 
iii. 
Bank guarantee forged by a bank employee – The 
State Vs. Muhammad Iqbal (1987 PCrLJ 1096); 
iv. 
Cashier running away with the cash of a bank – 
Manzoor Ahmed Vs. The State (1989 MLD 4890); 
v. 
Forgery of banking instrument by an account holder 
to claim a higher sum– Asmat Qadri Vs. The State 
(PLD 1989 Kar 276); 
vi. 
Embezzlement 
of 
money 
from 
bank 
account 
maintained with a bank – Allied Bank of Pakistan 
Ltd. Vs. Khalid Farooq (1991 SCMR 599); 
vii. 
Fraudulent sale of shares by a bank employee, which 
were held as security by the bank – A. Habib 
Ahmed’s case (supra);  
viii. 
Forgery of cheques for withdrawal of amount by an 
account holder – Ghulam Mustafa Vs. Presiding 
Officer, Special Court (Offences Against Banks), 
Rawalpindi and 2 others (2003 MLD 841); 
ix. 
Manipulation of pay order by an account holder – 
Muhammad Moinuddin Vs. Presiding Officer, 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 30 - 
 
Special Court (Offences in Banks), Singh at 
Karachi and 3 others (2011 PCrLJ 1488); and 
x. 
Fraudulent misappropriation from bank account by a 
bank employee and embezzlement – Hamad Raza 
through Special Attorney Vs. The State and 2 
others (2014 CLD 1493). 
 
On the other hand, the Ordinance, 2001 established Banking Courts 
which deal with disputes (civil and criminal) between financial institutions 
and customers in respect of finances availed by the latter and 
investigate and try offences stipulated therein. Section 20 of the 
Ordinance, 2001 indicates that there are numerous elements of each 
offence, making such offences far more specific than those triable by 
the Special Courts under the ORBO. Thus, perchance if a customer 
commits an act which constitutes an offence under any of the 
provisions of Section 20(1) of the Ordinance, 2001 and the same act 
also constitutes an offence under the ORBO, and but for the Ordinance, 
2001 being in force, such customer would have been tried under the 
ORBO, then it could be said that there was/is a definite overlap 
between the two laws and the Courts established under the ORBO may 
not 
exercise 
concurrent 
jurisdiction 
with 
respect 
to 
those 
acts/omissions which constitute offences under the Ordinance, 2001. 
The examples of cases listed above, falling within the purview of the 
ORBO, demonstrate that they do not extend to customers who are 
alleged to have committed offences which fall squarely within the 
purview of the Ordinance, 2001; rather they are restricted to the 
employees of banks, any third parties (vis-à-vis customer and financial institution) 
or in some instances customers but only when the act/omission does 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 31 - 
 
not fall within the ambit of the offences in the Ordinance, 2001. 
Therefore it is categorically held that the Ordinance, 2001 shall have an 
overriding effect on all those cases which are covered by it. 
Concomitantly, offences not covered by the Ordinance, 2001 would be 
triable under the ORBO. A comparative analysis shows that generally, 
proceedings before the Special Courts under the ORBO are more 
onerous and relatively disadvantageous to the accused. Under the 
ORBO, proceedings can be initiated on the basis of a complaint by any 
person or a report by a police officer (as opposed to only a complaint by a financial 
institution under the Ordinance, 2001), the accused is not to be released on bail if 
there appear reasonable grounds of guilt (whereas all offences apart from willful 
default are bailable under the Ordinance, 2001), most offences are non-
compoundable, punishment of the offences is generally of greater 
severity, the accused and persons acting on his behalf are barred from 
dealing with moveable and immoveable property without permission of 
the Special Court, the accused can neither leave Pakistan nor be 
employed for any service without the permission of the Special Court, 
and there is presumption of guilt and the burden of proof is on the 
accused. 
16. 
 
The learned counsel for the respondents have argued that 
the Banking and Special Courts under the Ordinance, 2001 and the 
ORBO respectively enjoy concurrent jurisdiction, giving the financial 
institutions/banks a choice of forum before which the trial should take 
place: in this behalf they have relied upon Section 20(1) of the 
Ordinance, 2001, according to which whoever commits any of the 
offences made out in parts (a) to (d) would be punishable to the extent 
mentioned therein, “without prejudice to any other action which may be taken 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 32 - 
 
against him under this Ordinance or any other law for the time being in force” 
[Emphasis supplied]. Provisions enacted ‘without prejudice’ to other 
provisions means that the former would not affect the operation of the 
latter.7 The ‘without prejudice’ clause reproduced above can be divided 
into two parts:- (i) any other action which may be taken against him 
under the Ordinance, 2001; and (ii) any other action which may be 
taken against him under any other law for the time being in force. As 
regards the first part, it means that if a person commits an offence 
which falls within the purview of Section 20 of the Ordinance, 2001, 
action can be taken against him under the said Ordinance, including, 
inter alia, a civil suit filed by a banking company before the Banking 
Court under Section 9 thereof quite apart from action for committing 
another offence. As far as the second part is concerned, when the 
Ordinance, 2001 came into force, the ORBO was already in existence. 
Would this mean that if a person committed an offence which fell within 
the purview of Section 20 of the Ordinance, 2001, parallel action could 
be taken against him under the ORBO? The answer depends on the 
scope of the phrase ‘without prejudice’. In isolation this expression 
would speak to the legislature’s intention that a financial institution be 
not confined to having recourse to only one specific remedy against a 
customer for offences committed by him in relation to the obligations of 
the finance availed, but to allow the banking company to choose its 
remedy. However, we cannot subscribe to this point of view. Were 
both laws to apply concurrently and permit of parallel platforms for 
the adjudication of offences under both laws then banks/financial 
institutions would always choose to initiate proceedings under the 
                                       
7 Justice G. P. Singh in Principles of Statutory Interpretation (13th Ed.) 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 33 - 
 
more onerous law, in this case the ORBO. Such an interpretation 
would give banks/financial institutions unbridled power to choose 
the forum before which trial of offences should take place, and 
they would obviously choose the Special Courts under the ORBO 
being more burdensome and prejudicial to the accused (as demonstrated 
above). A natural corollary is that in such circumstances the 
Ordinance, 2001 would, in effect, be rendered redundant. This is 
not permissible under any principle of interpretation of law when 
the Courts are trying to reconcile two potentially conflicting laws: 
our duty is to bridge the gap between what is and what was 
intended to be. We are not willing to attribute redundancy to the 
legislature. We do not wish to give financial institutions the 
unrestricted power to choose, when there has been an alleged 
dishonour of a cheque, between Section 20(4) of the Ordinance, 
2001 and Section 489-F of the PPC, as they would of a certainty 
opt to initiate proceedings under the latter which offence carries a 
greater punishment than the former. In this context, the judgment 
reported as Waris Meah Vs. (1) The State (2) The State Bank of 
Pakistan (PLD 1957 SC 157) is relevant in which a five member bench 
of this Court held as under:- 
 
In the present case, the question to be determined is 
whether the impugned Act is ex facie discriminatory, and 
we have no hesitation in saying that it is. Three tribunals 
with different powers and procedures have been set up. The 
Act creating them contains no indication as to which class 
or classes of cases are to go before a Court and which 
before the Tribunal and the Adjudication Officer and it 
does not impose upon the Central Government, the 
obligation, or expressly confer on it the power, of making 
rules with a view to classifying the cases to be tried by each 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 34 - 
 
of thesee (sic) tribunals. Nor does it define the principle or 
policy on which such classification may be made by the 
Central Government or the State Bank. The Central 
Government has not exercised its power of issuing any 
directions to the State Bank or of making any rules under 
section 27 for carrying into effect the provisions of the Act. 
The result, therefore, is that in the present state of the law 
no person who is alleged to have contravened any 
provision of the Act can know by which Court he is to be 
tried, and the question whether on conviction he shall be 
punished with imprisonment or should be punished with 
imprisonment and fine which may extend to any amount, or 
whether he should be let off with a mere penalty of three 
times the value of the amount involved rests entirely on the 
action that the Central Government or the State Bank may 
choose to take. 
  
It was contended on behalf of the State that in the present 
cases, it could not be said that discretion had not been 
exercised in a fair and reasonable manner by the State 
Bank, in electing to send the cases to a Tribunal. On the 
allegations, the cases were of a serious character, and 
merited severe punishment. The mischief of the Act is, 
however, not susceptible of so simple a cure. It confers 
discretion of a very wide character upon stated authorities, 
to act in relation to subjects falling within the same class in 
three different modes varying greatly in severity. By fur-
nishing no guidance whatsoever in regard to the exercise of 
this discretion, the Act, on the one hand, leaves the subject, 
falling within its provisions, at the mercy of the arbitrary 
will of such authority, and, on the other, prevents him from 
invoking his fundamental right to equality of treatment 
under the Constitution. 
  
The Constitution declares in Article 5 (1) that "All citizens 
are equal before law and are entitled to equal protection of 
law" and Article 4 (1) provides that "Any existing law . . . . 
. in so far as it is inconsistent with the provisions of this 
Part, shall, to the extent of such inconsistency, be void." 
That duty of declaring that a law is void, for violating a 
Fundamental Right defined in Part II rests on the Courts. 
That duty cannot be performed, so as to ensure that a law 
operates equally in relation to all persons within its 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 35 - 
 
mischief, if the law itself provides for differential operation 
in relation to such persons, not in accordance with any 
principle expressed or implicit in the law, not on the basis 
of any classification made by or under the law, but 
according to the unfettered discretion of one or more 
statutory authorities. 
  
Here, not only is there discretion in the specified 
authorities whether they will proceed at all against any 
member of the class concerned, viz. offenders against the 
Act, but there is also an unfettered choice to pursue the 
offence in any one of three different modes which vary 
greatly in relation to the opportunity allowed to the alleged 
offender to clear himself, as well as to the quantum and 
nature of the penalty which he may incur. The scope of the 
unguided discretion so allowed is too great to permit of 
application of the principle that equality is not infringed by 
the mere conferment of unguided power, but only by its 
arbitrary exercise. For, in the absence of any discernible 
principle guiding the choice of forum, among the three 
provided by the law, the choice must always be, in the 
judicial viewpoint, arbitrary to a greater or less degree. 
The Act, as it is framed, makes provision for discrimination 
between persons falling, qua its terms, in the same class, 
and it does so in such manner as to render it impossible for 
the Courts to determine, in a particular case, whether it is 
being applied with strict regard to the requirements of 
Article 5 (1) of the Constitution. 
  
In our view such a law has the effect of doing indirectly i.e., 
by leaving the discrimination within the unguided and 
unfettered discretion of statutory authorities, what it could 
not do directly i.e., to treat unequally persons falling within 
the same class, upon a basis which bears no reasonable 
relation to the purposes of the law. The Act is, therefore, in 
our opinion, in relation to its discriminatory provisions, 
inconsistent with the declaration of equality in Article 5 (1) 
of the Constitution. 
 
17. 
 
In addition to our opinion expressed above about the 
redundancy of the Ordinance, 2001 (see paragraph No.16), to allow forums 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 36 - 
 
under the Ordinance, 2001 and the ORBO to operate concurrently 
would offend the provisions of Article 25 of the Constitution of the 
Islamic Republic of Pakistan, 1973 (the Constitution) which provides that all 
citizens are equal before the law and are entitled to equal protection of 
the law; there being no defined guidelines on the basis of which cases 
may be tried under either law, it would tantamount to conferring 
unfettered discretion on financial institutions to pick and choose the 
forum as per their free will. Allowing them to do so would be violative of 
the rule against discrimination therefore we deem it best to restrict the 
applicability of the ORBO and hold that the Ordinance, 2001 is to have 
an overriding effect on the former. Furthermore, Article 4 of the 
Constitution confers upon the citizens the inalienable right to enjoy the 
protection of law and to be treated in accordance with law. This 
provision is reflective of the seminal concept of the rule of law, one of 
the elements of which is, as identified by Tom Bingham, that the law 
must be accessible and so far as possible intelligible, clear and 
predictable.8 If both the Ordinance, 2001 and the ORBO were to enjoy 
concurrent jurisdiction, citizens alleged to have committed an offence in 
respect of finance would be left wondering which offence they would be 
charged with, which Court they would be tried in and under what 
procedure. Thus, to our minds, such a situation would also be an 
affront to the provisions of Article 4 of the Constitution. 
18. 
 
There is another aspect to this matter. The ‘without 
prejudice’ clause was first introduced in the Ordinance, 1984. As 
mentioned in the beginning of this opinion, the Ordinance, 1984 was 
enacted to deal with the recovery of interest-free finance(s) as there 
                                       
8 The Rule of Law (2010) by Tom Bingham. 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 37 - 
 
already existed the Ordinance, 1979 to deal with regular loans. Both the 
laws were meant to operate side by side as they catered to two different 
types of finance/loan – interest free and otherwise. This is why the 
Ordinance, 1984 did not repeal the Ordinance, 1979, instead Section 7 
(of the Ordinance, 1984) included the phrase “without prejudice to any other action 
which may be taken against him under this Ordinance or any other law for the time 
being 
in 
force” 
This 
was 
to 
cater 
for 
situations 
where 
a 
customer/borrower had, for instance, taken a loan and an interest-free 
finance, and he had breached his obligations with respect to both: if 
action were to be taken against him under the Ordinance, 1984 for 
breach of his obligations with respect to the interest-free finance, it 
would not preclude any action that may be taken against him in respect 
of breach of his obligations with regard to the regular loan. 
Unfortunately this ‘without prejudice’ clause was retained in the 
Ordinance, 1997, the Act, 1997 and the Ordinance, 2001 when there 
was absolutely no need to do so since these enactments dealt with both 
regular and interest-free loans. It is a mere remnant and representative 
of thoughtless drafting. 
18. 
 
It is for the aforesaid reasons that the phrase “without 
prejudice to any other action which may be taken against him under… any other law for 
the time being in force” appearing in Section 20(1) of the Ordinance, 2001 
has to be read down in order to arrive at a harmonious interpretation to 
the laws in question, without which the said Ordinance would be 
rendered superfluous (at least to the extent of the offences). The principle of 
‘reading down’ has been employed by this Court in numerous cases 
such as Haroon-ur-Rashid Vs. Lahore Development Authority and 
others (2016 SCMR 931) and Province of Sindh through Chief 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 38 - 
 
Secretary and others Vs. M.Q.M. through Deputy Convener and 
others (PLD 2014 SC 531) in order to save a statute and this is 
precisely what we are doing today. By reading down the aforementioned 
phrase in Section 20(1) supra, we are adopting a harmonious 
interpretation in order to save the Ordinance, 2001, particularly the 
provisions of Section 20 thereof from being rendered nugatory. The 
principle of harmonious interpretation has often been endorsed by this 
Court in cases such as Lucky Cement Ltd. Vs. Commissioner Income 
Tax, Zone Companies, Circle-5, Peshawar (2015 SCMR 1494) and 
Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and 
others (PLD 2008 SC 779). Thus, it is held that the scope of the 
offences in the ORBO is wider than those set out in the Ordinance, 
2001, leading us to the conclusion that the ORBO would not apply to 
any acts or omissions which constitute an offence under the Ordinance, 
2001. The same applies to the argument of the learned counsel for the 
respondents that the Agency had the jurisdiction under the Act, 1974 
(Section 3 and the Schedule) with regard to the offence committed under 
Section 83A of the Ordinance, 1962 (and other provisions of the PPC). When an 
act/omission that falls within Section 83A supra (or other provisions of the 
PPC) also constitutes an offence under Section 20 of the Ordinance, 
2001, then the latter will prevail over the former and only the Banking 
Courts constituted under the Ordinance, 2001 would have the 
jurisdiction in the matter, to the exclusion of the Agency.  
19. 
 
In conclusion, we find that the provisions of the Ordinance, 
2001 are to have an overriding effect on anything inconsistent 
contained in any other law for the time being in force, including the 
ORBO, the Code (read with the PPC) and the Act, 1974 (read with the Ordinance, 
Civil Appeals No.2561 of 2016 etc.                                                                                          - 39 - 
 
1962). In essence, whenever an offence is committed by a customer of a 
financial institution within the contemplation of the Ordinance, 2001, it 
could only be tried by the Banking Courts constituted thereunder and 
no other forum. The Special Courts under the ORBO, the ordinary 
criminal Courts under the Code and the Agency under the Act, 1974 
read with the Ordinance, 1962 would have no jurisdiction in the matter. 
In the light whereof, all these appeals are allowed, the petitions are 
converted into appeals and allowed and all the impugned judgments are 
set aside. 
 
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Announced in open Court  
on 15.5.2017 at Islamabad 
Approved for reporting 
Mudassar/ 
