2013 PLP 197 (CLD)

KHALID MEHMOOD, J.

The Industrial Development Bank of Pakistan has filed this criminal appeal against impugned acquittal order of respondents passed by learned Judge Banking Court, Hazara Division, Abbottabad dated 3-12-2010.

2. Briefly stated the facts of the case are that respondents obtained various loans from the appellant/Bank and an amount over and above Rs.22,79,32,227 is still outstanding against them. In default of payment of loans, the appellant/Bank filed complaint under section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against Zahid S. Sheikh and others/respondents.

3. The Judge Banking Court summoned the accused. Respondent No.1 appeared in response to notice while others did not appear in Court whereas respondent No.5 died and trial against him was abated. During trial, accused respondent No.1 moved an application for his acquittal under section 265-K, Cr.P.C. and learned trial Court vide impugned judgment/order dated 3-12-2010 acquitted the accused respondent. Learned counsel for appellant argued that respondents being directors of Messrs Atal Pak Marbles Ltd. had obtained loan and were custodian of the mortgaged properties i.e. plot, superstructure, equipments and machinery etc. installed in the factory and executed various agreements deeds from time to time but dishonestly and illegally removed the machinery from the factory and thereby damaged the bank security. It was also argued that on 7-8-2000 the NAB Authorities filed Reference No.8 of 2000 against Sultan Ali Lakhani and others, which was withdrawn on 23-2-2001 due to the execution of memorandum of understanding between Sultan Ali Lakhani and the Bank but the same has not been fulfilled by him.

4. On the other hand, learned counsel for respondent opposed the contentions of appellant and supported the impugned acquittal order. It was argued that it was Sultan Ali Lakhani who had obtained the loan and was prosecuted by the NAB Authorities whereas respondents are guarantors for payment of loan and said Sultan Ali Lakhani, who has also filed a suit for specific performance against the Bank and regarding adjustment of loans facilities civil and criminal proceedings against are in progress.

5. Arguments heard and record perused.

6. Respondent No.1 was allegedly employed by Sultan Ali Lakhani for processing of Marble at Hattar and IDBP sanctioned a loan of Rs.45.223 millions in the name of Messrs Iltaf Pak Maribles Ltd. and Sultan Ali Lakhani was the beneficiary of the said loan facility. Later on Sultan Ali Lakhani got incorporated the factory and 14 other factories in the names of the employees and took huge loan from the banks. The respondent No.1 lodged a complaint against said Sultan Ali Lakhani and others before the NAB Authorities and ultimately Reference No.8 of 2000 was submitted against him and others, wherein Sultan Ali Lakahani accepted his liabilities and paid partial loans etc. and committed to pay the remaining loan amount. Prior to the present complaint a similar nature complaint under the same section of law was filed against the present respondents on 17-1-2001 but the same was dismissed on 4-9-2002. It is an admitted fact that Sultan Ali Lakhani is the real beneficiary of the loan. Respondents being benami Directors stood paper beneficiaries of the loan, whereas NAB has filed Reference No.8 of 2000 only against Sultan Ali Lakhani for enjoying the loan facility including the alleged loan against the mortgage of the machinery subject-matter of dispute. It is interesting feature of the case that all liabilities against the alleged misappropriation, being real beneficiary of the deal was admitted by Sultan Ali Lakhani. Appellant has already filed a similar nature complaint on 17-1-2001 and after its dismissal on 4-9-2002, the appellant kept mum from the date of its dismissal till filing of present complaint. No reason for filing the second complaint after lapse of seven years has been rendered. No appeal or application against the said order has been preferred. The present complaint also amounts to double jeopardy, which is against section 403, Cr.P.C. and also against Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. B A

7. The appellant thereafter filed Suit No.B-60 of 2011 against S.A. Lakhani and its paper directors, which was decreed only against Messrs Ital Pak Marble Ltd. and no decree was passed against the paper directors. Sultan Ali Lakhani filed Suit No.B-17 of 2003 for specific performance against the appellant whereas the appellant also filed Suit No.B-36 of 2003 for recovery of Rs.1,286,756,000 in which present alleged loan facility is also included. After settlement an agreement was executed between the parties and Suit No.B-36 of 2003 was decreed on 12-12-2005 but instead of filing execution petition the appellant has filed the instant complaint. In the light of above civil litigation for recovery of amount against Sultan Ali Lakhani and dismissal of earlier complaint, the very proceeding on the basis of subsequent present complaint is only abuse the process of court as in the light of above stated facts and legal aspects of the case charge levied against the respondents is found groundless. It has been laid down under section 265-K, Cr.P.C. that trial Court can acquit the accused at any stage if charge against the accused facing trial is groundless and there is no likelihood of his conviction. The trial Court can acquit an accused even before framing of the charge. Section 265-K, Cr.P.C. reads as under:-- B A C 265-K. Power of Court to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence . C

8. In the facts and circumstances, there appears no C probability of conviction of accused for the alleged offence even if prosecution is allowed to produce the evidence against the respondents. As the very charge levied against the respondent is without substance and is groundless, hence, learned trial Court has rightly passed the impugned order under section 265-K, Cr.P.C., which needs no interference. C

9. Resultantly, this appeal being without substance is hereby dismissed. MH/403/P Appeal dismissed.