1988 P Cr (PLP)

"That the accused persons started availing of the said facility from

from the complainant bank on the production of various Firm Export Orders/Letters of Credits for export, purposes. The conduct of the account reveals the failure of he accused persons to satisfy the requirements of the Scheme against which re-finance was obtained from the State Bank of Pakistan through the complainant bank. The payment of sum of Rs.

and

the subject-matter of the complaint, were paid to the accused persons as is evident from vouchers and statement of relevant current accounts attached. A statement showing the refinance facility availed of by the accused persons against Firm export order/letter of credit but no exports were made within the stipulated period of 180 days as a result of which the complainant bank besides paying the loan amount had also to pay the penal interest to the State Bank of Pakistan, Faisalabad. It is pertinent to point out here that the total amount of refinance facility amounts to

which the complainant bank paid to the State Bank of Pakistan, Faisalabad, alongwith total penal interest amounting to

However, the amounts of three items of refinance facility availed by the accused persons with effect from

to

the subject-matter of the complaint, are

respectively (total

) which the complainant bank paid back to the State Bank of Pakistan, Faisalabad, by cheque/S.B.P. The penal interest of Rs.

, Rs.

and Rs.

respectively (total Rs.

) was paid to the State Bank of Pakistan, Faisalabad, on account of, failure of the accused persons to export the goods within the stipulated period of 180 days." Thereafter, in the remaining paras. of each of the said three complaints there is no description of any conduct of the accused disclosing any mens rea on their part and in para. 13 of each of the said complaints, the complainant has straightaway jumped to the conclusion that the said amounts advanced to accused were a trust with the said accused persons and in failing to export the goods, the accused had committed criminal breach of trust of the said sums. It is clear from perusal of the paragraph 8 of each of the said three complaints that so far as the said sums are concerned, there is absolutely no mention or even indication of existence of any criminal intention on the part of the accused. In these paras. only thing which had been alleged is that the accused failed to export goods within the stipulated period. However, mere failure of the accused to satisfy the requirements of the scheme their inability to export goods; as described in the said paras. did not by itself amount to commission of the offence of criminal breach of trust on their part. In my opinion, therefore, the said averments in each of the said three complaints do not disclose the commission of offence under section 406 P.P.C.

7. Apart from that the scheme as described in para. 6 of each of the said complaints, visualises that in case the amount received by the exporter is not utilized for the purposes of export within the specified time, the exporter would be liable to re-pay the principal amount alongwith the interest at the penal interest of Rs.16% per annum out of which 3% was to be adjusted and retained by the financing bank and 13% was to be paid to the State Bank of Pakistan. Accordingly, the only consequence of non-export by the accused of the goods for which they had obtained the refinance facility was to pay the penal interest at the rate of Rs.16% per annum on said sums instead of Rs.3% which they would have paid if they had made the export within the stipulated period. The consequence of violation of the said scheme has been laid down in the Scheme and as per the averments in the complaints themselves, the said consequence is that the exporter shall pay alongwith the loan amount penal interest at the rate of 16% per annum instead of Rs.3%. The said scheme does not appear to contemplate the prosecution of the accused in case of default in making the necessary exports within the stipulated time. The complainant has not in the said complaints explained or even indicated how the accused had used the said sums in a manner other than the one enjoined by the terms of the contract. But even if that had been done so, the only penalty for which they were liable on the basis of averments made in the complaints is to pay the penal interest at the rate of 16% as the scheme itself has laid down the penalty in case of violation of terms of the contract made by the exporter with the bank in getting the Refinance Facility. The only averment made in each of the said three complaints is that the accused had not made the said export and had not made use of the said sums for making necessary exports within the prescribed period. From this averment arid others shade in these complaints, it appears to me that the only penalty incurred by the accused on facts made out in these complaints, was a civil liability of payment, besides the principal amount, of penal interest at the rate of I6% and that the said accused had not incurred criminal liability under section 406, P.P.C. For that reason too, I am of the opinion that the said complaints do not disclose commission of offence under section 406, P.P.C. in this case.

8. So far as the second point is concerned, in section 405, P.P.C which defines offence of 'criminal breach of trust' it appears to be an essential condition that the property which is the subject-matter of offence must have been entrusted irrespective of the manner in which it may have been done. Entrustment is an essential ingredient of the offence of criminal breach of trust. It is accordingly necessary to discover the meaning of the word 'entrustment' in the context of section 405, P.P.C. According to section 3 of the Trust Act, 1882, trust is an obligation annexed to the ownership of the property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. When a property is entrusted to someone, a trust, or confidence is reposed in him i.e. the person receiving the property who holds the property not for himself, but for the owner or for such person as is named by the owner. The creation of the trust under the said Act may be express or implied. Section 405, P.P.C. however, does not contemplate the creation of trust with all the technicalities of the said law of trust but the said law gives an idea of meaning of the word 'entrustment'. Taken in the background of the said law, entrustment appears to mean handing over of the property to another person for the purpose of his holding it in a fiduciary capacity for the owner or for owner and the person named by him. It follows from it and also from section 405, P.P.C. itself that ownership of property or the beneficial interest in property in respect of which criminal breach of trust is committed must be in some person other than the accused and the latter must hold it on account of (in trust for) such other person or in some way for his benefit. It was, so held in Nga Po Seik v. Emperor (6 Low Bur Rul 62 = 17 IC 824, FB), in re: Ven Kata Gurunatha Sastri A I R 1923 Mad. 597, in Ramaswami Reddy v. Emperor AIR 1931 Mad. 235 and in Chellor Mankkal Marayan Ittiravi Nambudiri v. State of Travancore-Cochin AIR 1953 SC 478). It is thus basic in the concept of entrustment that the property which is handed over to other person or beneficial interest therein should continue to remain vested in the person who hands over the said property to the other and should not, even for the time being pass over to the accused to enable him to use it for his own purpose. However, in the loan advances to another person, the property in the said sum of loan does not continue to remain vested in the creditor but passes, for the time being to the debtor and enables him to use it for his own purpose. Apart from that, when a loan is advanced to a party by the bank, the said bank parts with the said money for consideration i.e. the interest which he has to receive in lieu of the debtor making use of the said sum of money which had been handed over to the debtor. When the money comes into the hands of a debtor, it does not for the moment, remain the property of the bank. It becomes the property of the debtor for the period for which loan had been granted as the debtor has obtained it on the basis of consideration viz. the interest which he has to pay for its use for that period. The condition of payment of the interest for the use of the said sum of money also seems to me to negate the creation of any trust or entrustment within the meaning of the said word as used in section 405, P.P.C. as the existence of term of payment of interest is a proof of passing of the property in the said amount of the loan to the transferee, for the time being.

9. I am fortified in above view of mine by the observation made in Bock Chang & Co. v. ka Do 7 Low Bur Rul 16 F.B = 14 Cr.LJ. 145 to the effect that if a sum of money is advanced by way of loan, there is no 'enturstment' within the meaning. of the said words as defined in section 405; Penal. Code. In that case, the accused was advanced a sum of money on the undertaking that he would buy padyy at the rate he could and would sell the same to the advancing firm at the market rate on the day of delivery. It was held that property in the money passed to the accused and his contract to use the money in a particular way did not operate to create a constructive trust and that in the circumstances no criminal liability for criminal breach of trust was incurred. Again in Nagha Po Ywet v. Emperor AIR Lower Burma 1=LBR 278 (FB) following observations were made: "The question whether A entrusted property to B is one which depends upon facts of the case and not merely upon legal terms employed by the parties. If the real nature of the transaction is a loan, the fact that parties in writing call it a trust or agree that for the purposes of the Penal Code, the property in the money shall be deemed to remain in the original owner or agree that the party receiving the money shall be liable for criminal breach of trust. if he applied the money to a purpose other than, that agreed upon, would not bring the transaction within the scope of section 405 P.P.C. The Penal Code cannot be altered by agreement of parties so as to make section 405, applicable to a transaction which is in its real nature a loan. If A receives money from B for. certain specified purpose, the money is not entrusted to A within the meaning of section 405, P.P.C., if A is liable to return money in any event." Again in Mrs. William Cecil Keymer v. Emperor AIR 1914 All. 196, it was held that if money is, taken on loan for its utilization for a certain purposes but it is applied by the accused to other purposes, the accused cannot be held guilty of criminal breach of trust. In this case the accused had obtained a sum of Rs.180 from Mrs. William Cecil Keymer, by which sum he was short, for the purpose of purchasing a car with a stipulation that the car shall be later sold it a higher price and half the profit of the transaction shall be paid to her. It was specifically observed by the learned Judge in his judgment in this case that if Mrs. William was merely asked for a loan, it was q9ite clear that the accused could have committed no criminal breach of trust with respect to said sum of money. After appraisal of evidence on record in that case, the learned Judge came to the conclusion that Mrs. William's evidence was perfectly consistent with her meaning that she gave the accused loan on the condition that he would carry through the transaction and would return the money and half the profits to her and if that was the transaction between the parties, then in the eves of law, there was no partnership between them and the accused could not be said to have been guilty of criminal breach of trust, if he applied the money which he borrowed for one purpose, to another purpose. Similarly in case titled Commercial Bureau v. NB Ghoshal and another AIR 1948 Cal. 1, wherein transaction whereby money was advanced to the accused was interpreted to be a mere loan it was held that failure to repay the loan did not constitute criminal breach of trust. Again in State v. Tirath Das A I R 1954 All. 583 the following observations are pertinent:- "The one underlying idea in section 405 Penal Code is undoubtedly this that the property which is the subject-matter, of entrustment, or in respect of which dominion is passed over to the accused, does not even for the time being, become the property of the accused which he could use for its own purposes. Thus, the section does not cover the. case of a loan or of an advance of money when the borrower intends to use or utilize that money for the time being till he is in possession of it, although he may have to return an equivalent amount later on to the person making the advance with or without interest or compensation for .the use thereof. When a loan is advanced, the relation of a creditor and debtor is created.". Again in Fazal Karim alias Bibo v. Muhammad Mursaleen 1979 PCr.LJ 921 (Kar.) criminal proceedings for offence under section 406, P.P.C. taken on a complaint (which recited that accused took Rs.28,000 as a loan for six months and after stipulated period did not pay back the sum in spite of repeated requests) were quashed on the ground that the facts stated in the complaint at best gave rise to civil liability enforceable by the complainant in a civil Court and resort to a criminal Court had been made for the purpose of circumventing the law and finding out an easy manner of enforcing civil rights.

10. Learned counsel for the complainant has however, contended that when an amount is given to another person for the specific purpose of utilizing the said sum for a particular purpose in pursuance of a contract, the use of the said sum in violation of the relevant terms of the contract shall amount to commission of offence of criminal breach of trust as the definition of criminal breach of trust as given in section 405, P.P.C. itself embraces the same within: its ambit. I am afraid, I cannot accept this contention. The of violation of terms of a contract laying down the mode of utilization of a sum given to another person in connection with business or otherwise is wholly different from advance of a sum of money to another person as a loan in pursuance of a contract laying down the mode in which the said sum of loan is to be utilized. Any violation of the relevant term of the contract in the former may, if it is done dishonestly, amount to criminal breach of trust but violation of any such term of contract in the latter case, would result in a civil liability of breach of contract only and would not make out the offence of criminal breach of trust because in case of advance of a sum as a loan to another person the property in the said amount of the loan passes to the transferee and in case of use by him of the said amount in a manner different from the one prescribed in the contract, he cannot be considered to have been entrusted the said sum for the benefit of his creditor and, therefore, cannot be said to have committed the offence of criminal breach of trust. The case of Silas Moses v. Emperor 16 Cr.L.J. 665 cited by learned counsel for the complainant is distinguishable and is inapplicable to the facts of the present case because in that case the property in the motor car entrusted to the,. accused under a hire purchase agreement had not passed to the accused and still vested in the original owner and the accused had rightly been convicted of offence of criminal breach of trust in dishonestly assigning the said motor car to another person contrary to the legal agreement prohibiting him from doing so. Case of Dharmdas Lilaram v. Emperior 34 Cr.L.J. 1933 cited by learned counsel for the complainant is for obvious reasons not relevant to the point being canvassed by learned counsel for the complainant. Furthermore, Azhar Latif and 3 others v. Esoof Hashim and another 1975 P.Cr.L.J. 545 was also a case of giving of money for the purpose of business and not a loan advanced to the accused and it was in that circumstance that it was held in that case that money or property given for specific purpose when utilized for some other purpose or in different manner may amount to criminal breach of trust. I, therefore, repel the point raised by learned counsel for the complainant bank.

11. As a result of the above discussion I hold that when a loan is advanced to another person, no trust is created and there is no I entrustment of the sum of the loan to the said person within the, meaning of the said word as used in section 405, P.P.C. and even if the said person uses the said sum of the loan in violation of the terms of the contract prescribing the manner in which said sum of the loan is to be utilized, it cannot be said that he has committed offence of criminal breach of trust.

12. In the present cases, according to the averments made in the three complaints the sums advanced to the accused have been shown to be loans in clear terms. Apart from that it has also been clearly stated in them that in case the accused utilized the amounts of loans for purpose of export within stipulated period of 180 days, they were to pay interest on the amount of loan at a certain rate to the complainant bank but if they did not utilize the said amounts of loan within the specified time, they were to pay penal interest at the enhanced rate of 16% per annum. These circumstances show beyond any shadow of doubt that property in the said sums of the loans passed for the time being to the accused persons in the said three complaints. In the light of finding of law arrived at above it is clear that payments of these sums by the complainant Bank to the accused persons did not amount to entrustment of said sums to the accused within the meaning of the said word as used in section 405, P.P.C, and for that reason the accused cannot be said to have committed offence of criminal breach of trust, punishable under section 406, P.P.C. in relation to the said sums.

13. In these circumstances, I am of the opinion that charge against the accused is groundless and there is no probability of their conviction in this case for scheduled offence under section 406, P.P.C.

14. I would now advert to the third point raised by the learned counsel for the accused regarding the allegation of commission of offence of criminal misappropriation of hypothecated goods, punishable under section 403, P.P.C. in the said three complaints. I agree with the learned counsel for the complainant bank that in goods hypothecated by manufacturer's/exporters with the banks as collateral security for the loan advanced to them by the bank, the said bank has beneficial interest and clandestine removal of the said goods by manufacturers/exporters from their godown without the consent of the bank may amount to misappropriation of the said goods by the manufacturer/exporter but in the present three complaints, there was no ban on the accused-borrowers to make sale of their goods stored in their godowns in the ordinary course of business. In paragraph 2 of the deed of hypothecation, attached as Annexure 'J' to each the said three complaints, it is provided, firstly, that the whole of the borrower's stocks of cotton textiles whether raw or in the process' of manufacture and all proceeds, goods and movable properties of any kind which now or hereafter from time to time during this security shall be brought in, stored or, be in or about the borrower's premises, hereinafter sometimes called securities, shall be hypothecated to the bank by way of first charge as security for the payment to the bank, on demand of the balance of accounts and for payment of all liabilities of the borrower and, secondly, that the borrower shall not (except for the purpose of sale in the ordinary course of business) at any time, so long as there shall be any balance due by the borrower in the said account, remove or cause to be removed from borrower's premises or godown any of the securities. The words 'except for the purpose of sale in the ordinary course of business' in the said term of the contract are notable. The said term of the contract of hypothecation, therefore, did not lay down an absolute prohibition against sale of said goods by the accused. The only thing the complainant bank stated in each of the three complaints is that after a certain date, the accused stopped submitting to the complainant bank monthly statements of stock of hypothecated goods lying in their godowns and on inspection on 4-6-1984 and 23-7-1984 no stock was found lying in the godowns of the accused in case of each complaint. No allegation was made in each of the said complaints in precise words to the effect that the accused had disposed of the stocks. and the matter was left only to be inferred. However, the mere fact that no monthly statements were sent is no sure proof of the removal of hypothecated stock in violation of the terms of-the contract. The said stock may yet be lying there and it may be on account of negligence that no returns had been submitted and, therefore, no inference of sale of said goods by accused could be drawn. The next circumstances alleged viz. of non-availability of any hypothecated stock in the year 1984 is not of the year 1981. If the removal of goods had taken place in 1984, resultant offence under section 403, P.P.C. could not have been joined in the complaint for offence under section 403 which is alleged to have taken place in 1981. For that a separate complaint should have been filed as required by section 234, Cr.P.C. In any way, no specific allegation was made in any one of the said complaints that the accused had sold their stock of hypothecated goods otherwise than in ordinary course w, business. To add to it, it was not alleged in the complaints that the accused had criminal intention in failing to submit monthly statements; of stock or in disappearance of the stock from their godowns. In these circumstances, the bald statement that the accused are liable because they are to be deemed to have disposed of the said hypothecated goods is not sufficient to saddle the accused with criminal. liability, inasmuch as, the power to deal with their goods in the ordinary course of business had been conceded to the accused by the contract itself. In my opinion, therefore, on the facts stated in the three complaints, the charge laid against the accused is groundless and there is no probability of their conviction in &these cases for offence under section 403, P.P.C. too.

15. Here I may take notice of an objection raised by learned counsel for the complainant bank. His contention is that having held in my interim order dated 19-9-1984 passed in each of the said three complaints under section 204, Cr.P.C. that on perusal of the complaint and documents attached thereto a prima facie case under sections 406: and 403, P.P.C. stood made out against the accused and having summoned the said accused to stand their trial under the said section, this Court could not, before holding the actual trial pass any order of acquittal under section -249-A/265-K, Cr.P.C. because that would amount to a review of a criminal judgment already delivered and would be without jurisdiction. He has in that connection referred me to section 369, Cr.P.C. and to R.H. Brightling, Manager, American Express Co (Inc.), Lahore v. Saeed Ahmad Chaudhry (1968 PCr. LJ 1818) whether it was held that when an order has been passed by the High Court in exercise of criminal jurisdiction it is not competent for it to review it. He also referred me to Muhammad Boota and 12 others v. Ch. Faiz Muhammad and 8 Others 1971 P Cr. L J 483 (SC) for the same proposition.

16. In this connection it is relevant to note that almost immediately after being summoned under section 204, Cr.P.C. to stand their trial in these complaints, accused .in these cases went to the High Court in writ petitions and haring, failed there filed in the Supreme Court of Pakistan three Petitions for Special Leave to AppealNos.6 of 1985, 8 of 1985 and 15 of 1985 from the orders passed in the High Court. Following. order was passed on. 8-5-1985 on these petitions by their Lordships of the Supreme Court:- "Leave is refused with the observation that the objection to jurisdiction of the Special Court on the ground of retrospectivity and on other legal grounds taken in the High Court and before us are allowed to be raised before Special Court. This question alongwith prayer for acquittal (under section 249-A or 265-K, Cr.P.C.) shall be decided by the Special Court first." As already stated, no objection to jurisdiction of this Court to hold the trial in this case was taken by, the accused at the hearing before this Court but the. question. that there was no probability of their conviction in this case and they, should be acquitted right now in exercise of the power of this Court under section 249-A/265-K, Cr.P.C. ,was pressed most vehemently. It is clear from the order of their Lordships of the Supreme Court, that they had directed this Court to consider the question of acquittal of the accused at this stage under section 249-A/265-K, Cr.P.C. Learned counsel for the complainant, however, contended, that even if their lordships of the Supreme Court had directed this Court to decide the question of acquittal under the said provisions of law first, this Court is not competent to decide the said question at this stage because the Supreme Court .cannot confer on a Court .jurisdiction which does not vest in it and can be conferred on it by .a provision of a statutory law only.

17. I have considered that question and have come to the conclusion: that by deciding the question of acquittal of the accused under the said provisions of law at this stage, I would not in any way be reviewing any judgment passed by me previously in these criminal cases. The orders made by me on 19-9-1984 were made under a definite provision of law, namely, section 204, Cr.P.C. and as such were interim in nature (envisaging only satisfaction that there was prima facie evidence justifying issuance of process against the accused) and had been passed after hearing only one party viz. the complainant in each case and did not contain in them reasoning as required by section 367, Cr.P.C. for a judgment and as such can by no stretch of imagination be considered to be judgments. As held in Mohsin Raza v. Dr. Bashir Ahmad and another 1980 P Cr. L J 180 a judgment for the purposes of section 369, Cr.P.C. means a decision in a trial which decides a case finally so far as the Court trying the case is concerned and terminating in a conviction or acquittal. The said orders passed by me on 19-9-1984 were not orders of that nature and cannot, therefore, be called judgments and section 369, Cr.P.C is not applicable to them. I am aware that though section 369, Cr.P.C. refers in express terms to judgments under Chapter XXVI of the Code of Criminal Procedure, principles laid down therein should apply also to final orders which are in the nature of judgments but as also held in the above cited case, orders in the nature of judgments are those which are passed on full enquiry and after hearing both sides and which determine the proceedings finally and the said orders dated 19-9-1984 passed in the said complaints are also not orders of that nature as they leave the matter of final disposal of the question of conviction or acquittal of the accused to the appropriate stage after hearing the opposite-party.

18. In any way, quite apart from the above, jurisdiction has been conferred on this Court to consider the question of acquittal of the accused-at the stage even before initiation of the trial under sections 249-A and 265-K, Cr.P.C. under given circumstances. Section 249-A and section 265-K of the same Code in which sections 204 and 369 occur appear to provide for acquittal of the accused at the very initial stage viz. of their very appearance before the Court after an order had been passed summoning them to stand their trial for offences with which they had been charged and the Court can acquit them right at that stage. Such orders appear only on cursory view to amount to review of the said previous order. In actual fact they do not constitute review of the said orders but are the result of exercise of jurisdiction under a totally different and independent provision of law, namely, section 249-A or section 265-K, Cr.P.C. And the present order is being passed after hearing the other party, i.e. the accused persons who were not available at the time when the earlier orders were passed. The order being passed today is thus under a totally different and independent source of jurisdiction.

19. For the foregoing reasons, I reject the contention of learned counsel for the complainant bank that order of acquittal under section 249-A/265-K, Cr.P.C. would amount to review of interim orders of this Court passed in the three complaints on 19-9-1984.

20. Learned counsel for the complainant' has further submitted that the present stage of the case is too early a stage and acquittal of the accused at this stage by this Court in exercise of its powers under section 249-A/265-K, Cr.P.C. would be tantamount to stifling of the prosecution case in its infancy. However, all the authorities which the said learned counsel has cited to support his said plea consist of decisions given by the High Court under section 561-A, Cr.P.C. He has not produced a single authority containing a decision given under section 249-A/265-K, Cr.P.C. under which I propose to and was asked by their Lordships of the Supreme Court to exercise power in this complaint case. It must be noted that in section 561-A, Cr.P.C. which saves inherent powers of the High Court, it is not expressly provided as to when power under it can be exercised and the superior Courts in which the power under the said provision vests laid it down as a rule of their own policy not to quash proceedings in a criminal case which is yet in its initial' stage because that was calculated to give an impression of stifling of the prosecution in its infancy. In section 249-A, Cr.P.C. however, power has expressly been given to the trial Court, exercising criminal jurisdiction to acquit a person, at any stage of the case, i.e. before even framing of a charge against the accused if there is no probability of the accused being convicted of any offence in that case. I am conscious of the circumstance that as far as possible, in the interest of justice, a criminal prosecution should not be terminated in its very infancy by resort to power under section 249-A/265-K, Cr.P.C. but it is difficult to accept that in a case wherein the Court can come to a clear decision that there is no probability of the accused being convicted of any offence, an order of acquittal should not be made merely because it was the initial state of the case. Rather the consideration of saving the accused from tribulations of an unnecessary trial and harassment should get the better of the said argument and egg the Court on to rid the accused, at the very initial stage, of a prosecution which is ultimately going to end in acquittal of the accused. The following observations in State v. Muhammad Rafique PLD 1983 Quetta 122 (DB) are relevant in that context:- "We are clear in our minds that ordinarily the Court should not interfere (under section 249-A, Cr.P.C.) at initial stage of criminal proceedings but the Court under section 249-A, Cr.P.C. like the High Court acting under section 561-A, Cr.P.C. is under an obligation to interfere in order to prevent harassment of citizens by an illegal prosecution." The argument that power under section 249-A/265-K, Cr.P.C. should not be exercised in initial stage of the case appears to conflict clearly with plain words of the relevant provisions of the statute and cannot therefore be countenanced. Section 249-A/265-K, Cr.P.C. gives out in explicit terms that power to acquit a person in circumstances given in the said section can be exercised at any stage of the case. There are number of decisions of the High Courts which expressly support the said point of view. In Din Muhammad v. Muhammad Sharif and another P L D 1979 BJ 12 it was held by a Single Bench of the High Court that under section 249-A, Cr.P.C. a criminal Court could deal with an application under the said provision irrespective of the fact that even a charge had not yet been framed in the case. Same position was reiterated in two DB cases, namely, State v. Muhammad Rafique P L D 1983 Quetta 122, noted above, and Muhammad Sharif v. Mazharul Haq and 5 others 1983 P Cr. L J 1440 (Kar.). Again in Qamar-ud-Din Khan v. The State 1984 P Cr. L J 3105 (SB Lah.) it was held by Lahore High Court, Lahore, that under section 265-K, Cr.P.C. the Court was fully empowered to pass order of acquittal even if the Court had after receipt of the challan case, just issued a process to the accused. In State v. Nabi Bakhsh Khan Khoso and others 1986 P Cr. L J 1130 (DB) (K) it was held that expression at any stage of the case' employed in section 265-K, Cr.P.C. was susceptible to a very wide connotation and would include even a stage prior to framing of charge. In case of these pronouncements the attempt of the learned counsel for the complainant to persuade this Court to refrain from exercising this power merely because it is an initial stage of the case must fail. Thus, this point of learned, counsel for the complainant bank too has no force and is accordingly repelled.

21. Accordingly, there is nothing to detract from the correctness of my finding that there is no probability of the accused being convicted of any offence in these three complaint cases nor there is any restraint in law which may fetter my discretion to exercise power under section 249-A/265-K, Cr.P.C. at this stage in the said three complaint cases.

22. The allegations made in each of the three complaints taken at their face value and accepted in their entirety do not disclose the commission of scheduled offences under sections 406 and 403, P.P.C. From the admitted features of these complaint cases, as explained above, it is clear that if the trial of the accused in the said three complaints is started and is allowed to proceed, it would be just a mock trial which would result only in unnecessary harassment and hardship to the accused. I am clear in my mind that on averments made in these three complaints, the charge is on the face of it groundless and accordingly there is no probability of the conviction of the accused in these three cases, of the scheduled offences of which they have been charged. For the foregoing reasons, in exercise of my powers under the said provisions of law, I acquit the accused-respondents of the scheduled offences under sections 406 and 403, P.P.C. in all the complaints. S.A./23/Sp.B. Accused acquitted.