1912 P Cr (PLP)

(i) Whether the State Bank of Pakistan had reason to believe that the accused was indulging in illegal business of banking? (ii) Whether the accused when required by the State Bank of Pakistan to produce relevant statements and documents in relation to the business carried out by him for the purpose of determining whether he was doing any banking business in contravention of section 27(1) of the Banking Companies Ordinance, 1962, failed to do so? (iii) What offence, if any, is committed by the accused?

7. My findings on the above points, are as follows:-- (i) Affirmative. (ii) Not proved. (iii) No offence.

8. Point No.1. Mr. S.M. Khursheed, Deputy Director (P.W.1) has produced the advertisement (Exh.1/2) made by the accused by which Shirakatdars were invited to invest money. This fact is admitted by the accused in his reply (Exh.l/5): It is also an admitted position that prior to this case the accused was prosecuted for the offence under section 27-A, read with section 83(1-D) of the Banking Companies Ordinance, 1902, and was convicted on his-own plea of guilt vide judgment dated 22-1-1989, available on record. On the face of this admitted position the State Bank of Pakistan had reason to believe that the accused was indulging in illegal business of banking. The word `appears' used in section 43-A of the Banking Companies Ordinance, 1962, simply means that at the present stage there should be prima facie material before the State Bank of Pakistan to indicate that the illegal business of banking complained of is likely to have been committed. Point No.1 is, therefore, answered in affirmative.

9. Points Nos.2 and

3. It would be convenient to discuss both the points together as the evidence is common.

10. The receipt of directives (Exh.1/3) and (Exh.1/4) is not disputed by the accused who has sent his reply (Exh.1/5) in the following words:-- "Please refer to your letter bearing NO.BID(INSP) 1642/604-A-88, dated 3rd July, 1988. In reply to the same I would like to inform you as follows:-- (1) That the name of the Firm is Alam Traders. It is a sole proprietorship firm. (2) The investment was invited for the purpose of construction business. (3) No investment or deposit was ever received either by the undersigned or by any other person on behalf of Alam Traders, Karachi. (4) Since no investment or deposit was received as such no investment was made to any Avenue. (5) In view of the above submission no profit was earned. (6) Same as above. (7) I am riling my income-tax returns under self assessment scheme under no-account as such we are not maintaining any balance sheet, profit and loss accounts, etc. etc. However, I am annexing herewith photo copies of assessment orders. (8) We have no branches. (8) We gave no branches. (9) We have no allied concerns. (10) No advances were made to anybody. (11) Since Alam Traders, Karachi is a proprietorship firm as such question of partners/directors does not arise. I hope the above facts will satisfy your good-self and further proceedings will be dropped."

11. The above reply is self-explanatory which is supported by the assessment of income-tax. The accused had all along pleaded that he had not received any investment and, therefore, no accounts were maintained. Admittedly the Inspecting Officers had the powers to search and seize books of accounts, documents or other record relevant to the business of accused but no effort was made to seize the same, if the authorised officers of the State Bank of Pakistan were not satisfied with the reply of accused (Exh.l/5).

12. In criminal cases the opus is on the prosecution to prove beyond all reasonable doubt the guilt of the accused. The mens rea or a guilty mind is an essential ingredient of a criminal offence and it is a sound rule of constitution to read this element in the statutory provisions unless the, statute expressly or by necessary implications excluded it. If any case-law is needed on this subject, the cases of Pakistan and others v. Hardcaste Waud (Pakistan) Ltd. Karachi reported in P L D 1967 SC 1, Jahanara Khatoon and others v. The State reported in P L D 1967 Dacca 704 and Syed Abul Aala Maududi v. The State Bank of Pakistan and another reported in P L D 1969 Lah. 908, may be cited with advantage. In the first cited case Hameed-ur-Rehman, J. observed as follows:-- "Even in a case of statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implications rules it out. The mere omission of the word `knowingly' or `intentionally' is not sufficient to rebut this presumption for alt that such words do is to say expressly that is normally implied."

13. The perusal of the record shows that the accused had not concealed information when called upon by the State Bank of Pakistan to furnish the p same. No case for non-compliance of the directives issued under section 43-A of the Banking Companies Ordinance, 1902, is made out and the accused is accordingly acquitted. He is on bail and is discharged from his bail bond. N.H.O./S-896/K Accused acquitted.