2012 P Cr (PLP)

SALMAN HAMID, J.

Through present Criminal Revision Application Order dated 3-6-2011 (Impugned Order), passed by the Judge Banking Court-II, Karachi in Criminal Complaint No.13 of 2009 on application moved under section 265-K, Criminal Procedure Code, (treating it to be an application under section 249-K, Cr.P.C.) by Zubaida Sultana (the applicant) has been assailed, whereby the same was dismissed.

2. At the very outset, it was argued by the learned counsel for the applicant that the only reason for not entertaining the application for acquittal that was moved by the applicant was that the Banking Court-II, Karachi was of the view that since matter of the co-accused, Feroze Khan Baloch was pending adjudication before this court in Criminal Revision Application No.30 of 2011, wherein Feroze Khan Baloch had impugned dismissal Order dated 22-1-2011, passed by the same Banking Court on his acquittal application moved' by him in Criminal Complaint No.46 of 2009 dismissed the same. It was mentioned that this court vide Order dated 24-3-2011 allowed Feroze Khan Baloch's Criminal Revision Application No.30 of 2011 by holding as under:-- "We, therefore, in view of the above facts have come to the conclusion that the third complaint filed against the present applicant is wholly misconceived and illegal as firstly no plausible explanation has been given by the counsel appearing on behalf of the respondent-Bank that how a complaint, after a lapse of two years; after the withdrawal of the second application has been filed and that too without adhering to the previous commitment made by the bank and secondly in view of the fact that withdrawal of complaint under section 248, Cr.P.C.; if allowed, results in acquittal of the accused. Hence once the complaint is withdrawn for whatever reason and if so permitted results in acquittal of the accused, in our opinion, another complaint on identical facts filed by the respondent-Bank after a lapse of considerable period, for which no plausible explanation has been furnished, is illegal and uncalled for. In view of what has been stated above this Criminal Revision Application is allowed and the impugned order is set aside."

3. It was pointed out by the learned counsel for the applicant that the respondent No.1 assailed the above order, passed in Criminal Revision Application No.30 of 2011 before the apex court by way of preferring Criminal Petitioner No.38-K of 2011 which petition was heard on 18-7-2011 and was dismissed by the Hon'ble Supreme Court of Pakistan on the same day by observing as under:-- "It is pertinent to mention here that the process of law is not to be misused and it should not be left open upon the sweet will of the complainant party to repeat a complaint in respect of the same dispute with same facts and to keep it on repeating. In the instant case, the first complaint was filed in the year 1997, which was dismissed for non-prosecution followed by another complaint filed in the year 1998, which was dismissed as withdrawn and now the one subject-matter of instant proceedings. There must be some end to the criminal proceedings. In particular, in this case the respondents are facing the agony of hanging sword of criminal proceedings on their heads for the last 12/13 years and perusal of the order sheets in respect of second complaint, filed in the year 1998, reveals that as many as 50 adjournments were granted in the complaint and on most of the dates, the complainant was found absent which shows the non-seriousness of attitude of the complainant in pursuing its case, if any against the respondents. Keeping in view the fact that the respondents are facing the agony of criminal proceedings for more than a decade and the conduct and attitude of the complainant i.e. they were never serious to prosecute the complainant, we are of the considered view that the learned Division Bench of the High Court, after having discussed in detail the merits of the case and keeping in view all, legal aspects has rightly accepted the Revision filed by the respondents."

4. In view of the above facts and circumstances, it was urged that the applicant is also faced with the same ordeal inasmuch as that same treatment was given to the applicant by the respondent No.1 in that criminal complaints filed earlier either had been dismissed or had been withdrawn. Hence present Criminal Revision Application.

5. It is evident from the record of the file that for the first time in 1997 the respondent No.1 filed a Criminal Complaint before the Special Court Offences in Banks at Karachi which was dismissed for non-prosecution on 18-9-1997. After dismissal of such Criminal Complaint another Criminal Complaint was filed by the respondent No.1 after a decade in 2007, again before Special Court which was withdrawn circa January, 2007; however with permission that fresh complaint would be filed by respondent No.l, implicating its employees as it transpired to it (Respondent No.1) that its, employees were also involved in the commission of offence. In 2009 respondent No.1 again filed Criminal Complaint but without implicating employees of respondent No.1 as was portrayed by them at the time of withdrawal of 2nd Criminal Complaint. The applicant in view of the above milieu moved application under section 265-K, Cr.P.C., which in turn was treated by the Banking Court No.II as an application under section 249-K of Cr.P.C. and dismissed the same for the reasons mentioned above.

6. Learned counsel for the respondent No.1 only raised that since the Criminal Revision Application of Feroze Baloch has been decided by this court and also by the apex court, the applicant may approach the Banking Court-II, Karachi for acquittal afresh and that this was not the right forum. The learned counsel did not raise ructions in contesting this Criminal Revision Application. Nothing was argued by the learned Standing Counsel. Looking at the above state of affairs and the orders passed by this court and the apex court and the famous English proverb: what is good for the goose is also good for the gander, we by our short Order today allowed this Criminal Revision Application by quashing Criminal Complaint No.13 of 2009, pending before Banking Court No.II, Karachi and as a result acquitted the applicant. These are the reasons for such quashing and acquittal. H.B.T./Z-22/K Application allowed.