1994 PLP 1304 (MLD)

Akhtar Ali Mir has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, (1973) seeking writ/order in the nature of certiorari for quashing F.I.Rs. Nos.5 and 6 of 1980 registered against him under section 419/420/467/468/471; P.P.C. read with section 5(2) of the Prevention of Corruption Act (II of 1947) at Police Station F.I.A:, Lahore. His case is that he was working as Loan Supervisor with the Agricultural Development Bank of Pakistan, Zone-2, Lahore. In the year 1976, an Emergency Loan Scheme was promulgated by the Bank. The petitioner was to work and act in accordance with the detailed instructions issued by the Bank vide circular No.L-S-52/76, dated 6-12-1976 in the .matter of disbursement of loan to genuine parties. It was in the year 1980 that the Government of Pakistan Finance Division (Interior Finance and Banking Wing), Islamabad again clarified the position with regard to the procedure for disbursement of loan through Office Memorandum No.6(4)BKG-III/78-384 Islamabad, dated 12th February, 1980 expressing the view that in those cases where Patwaris have identified the fake loanees "The A.D.B.P.'s concerned official should not be considered as guilty unless and until it can be proved without any doubt before the Trying Court that the A.D.B.P.'s Official at the time of sanctioning of loan was in the know that the Patwari had identified the fake loanee and fake sureties etc."

2. In the year 1980, four criminal cases were registered against the then Halqa Patwari, Tehsildar, Manager of Agricultural Development Bank of Pakistan, Ferozewala Branch and the petitioner by the Federal Investigation Agency vide F.I.Rs. No's.4, 5, 6 and 7 of 1980. The allegations in all these cases were that fictitious agricultural loans of various amounts were issued in the names of fake individuals who were named in the First Information Reports. The F.I.Rs., subject-matter of these petitions, bear Nos.5 and 6 and are dated 9-1-1980. During investigation, the Manager of the Bank concerned made a statement under section 162, Cr.P.C. in all the cases including F.I.Rs. Nos.5 and

6. It was stated by the Manager that the amounts of loan involved in all the cases were sanctioned by him on the report of Halqa Patwari and on the identification of Lambardar, Naib-Tehsildar and Tehsildar. In spite of the fact that the Manager of the Branch was also one of the accused in the cases, he was not challaned and the other accused, including the petitioner, were challaned in case F.I.Rs. Nos.4 and

7. The challans in F.I.Rs. Nos.4 and 7 were submitted by the Federal Investigation Agency before the Special Court (Offences in Banks) Lahore. The petitioner filed an application under section 265-K, Cr.P.C. each in F.I.Rs. Nos.4 and 7 seeking his acquittal and the learned Special Judge was pleased to allow the same on 18-7-1990.

3. The challan of the petitioner in F.I.Rs. Nos.5 and 6 was not submitted and the petitioner remained suspended from service throughout the past more than a decade. The petitioner remained unsuccessful in locating the latest position in regard to F.I.Rs. Nos.5 and 6 and, not obtaining any clue whatsoever regarding the submission or otherwise of the challan by the Federal Investigation Agency in F.I.Rs. Nos.5 and 6, he moved the instant petition, on 23-1-1992 seeking a declaration that F.I.Rs. Nos.5 and 6 of 1980" be declared to be illegal and without lawful authority."

4. These cases were admitted to regular hearing on 3-2-1992 when it transpired from the perusal of the record that the challans in both the cases were deposited in the office of Deputy Attorney-General at Lahore on 6-5-1986 and that the representative of the Federal Investigation Agency namely one Yousaf Ali Shah, Assistant Director, Crimes had no knowledge about any progress in the said causes thereafter.

5. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General had taken up the matter with the concerned quarters and it was on 19-7-1993 that he received a copy of office memo No.E&D/DP-III/1(431)/93/1859 issued by Muhammad Hussain Khan, Deputy Director (DPW-II), Agricultural Development Bank of Pakistan, Islamabad to Mr. Akhtar Ali Mir, petitioner. This memo reads as under:-- "In supersession of this office, O.M. of even No., dated 31-3-1983 Mr. Akhtar Ali Mir, Loan Supervisor, P.P. No.007201, I&A, Zone 2, A.D.B.P., Lahore is re-instated with immediate effect without prejudice to the proceedings pending in the High Court. The matter in respect of payment of his arrears , of pay and allowances for the suspension period will be decided on merit, after decision of his writ petition, pending adjudication, in the High Court:" The learned Deputy Attorney-General states that in relation to the progress of the challan-papers, said to have been processed by the Federal Investigating Agency way back in the year 1986 by depositing the same in the office of the then Deputy Attorney-General, Lahore, remained at the same level as it was when this petition was admitted to regular hearing on 3-2-1992. According to him, the challan-papers in both the cases were passed on to an Advocate for onward proceedings before the competent Court but all information received from the concerned quarters, including the office of the Special Court (Offences in Banks) Lahore, indicates that no proceedings ever commenced before any Court in F.I.Rs. Nos.5 and 6 of 1980. He was not in a position to controvert the case made out by the petitioner that he has been wronged beyond repair by tagging on his suspension order, dated 31-3-1983 with the alleged pendency of trial/s of F.I.Rs. Nos.5 and 6 of 1980. Even Chaudhry Sarfraz Ahmad, learned counsel appearing on behalf of the respondent-Bank, has no explanations to offer for the inaction on the part of his clients not to re instate him in service earlier than 19-7-1993.

6. Moreover, a perusal of the office memo., dated 19-7-1993, photo copy whereof has been placed on the record, shows that the respondent-Bank Authorities have withdrawn the suspension order, dated 31-3-1983 and re instated the petitioner with immediate effect "without prejudice to the proceedings pending in the High Court". It has been further noticed that in the said office memorandum the question relatable to the payment of petitioner's arrears of pay and allowances for the suspension period has been deferred for decision until after the decision of these petitions. The position that emerges is that after the registration of these cases the matter remained pending with the prosecution-Agency and the petitioner remained suspended from service as four criminal cases, including the cases which, are subject-matter of these two petitions, had been registered against him (and others). Even after the petitioner had been acquitted in the two cases, in which challans were submitted before the trial Court, on his applications under section 265-K, Cr.P.C. the suspension order of the petitioner was kept intact up to 19-7-1993 None other than the prosecution is to blame for its failure to take the case F.I.Rs. Nos.5 and 6 of 1980 to their logical conclusion by initiation and concluding the trial of the petitioner therein, for the past about 13 years. There is no force in the contention raised by the learned Deputy Attorney-General to the effect that as the cases were duly investigated into and a prima facie case was made out against the petitioner, therefore, these cases can be considered as pending, even at this stage. The untold miseries suffered by the petitioner in the matter of his career with the Bank as also the paucity of funds to maintain his family for such a long time cannot but be held to be flowing from the inaction of the respondent-authorities. Notwithstanding the registration of these cases, the persons accused in the First Information Reports Nos.5 and 6 of 1980 cannot, by any stretch of imagination, be treated as "convicts" to incur the wrath of law. Even the other two cases namely F.I.Rs. Nos.4 and 7 of 1980 were not prosecuted by the respondent-Authorities with due diligence and the acquittal of the petitioner therein does advance his case in these causes as well. In view of the above discussion, both these petitions are allowed. The result is that F.I.Rs. Nos.5 and 6 of 1980 are quashed. Parties are left to bear (e their respective costs. N.H.Q./A-576/L F.I.Rs. quashed