2009 PLP 457 (MLD)

RANA ZAHID MEHMOOD, J.

This is an appeal against the acquittal order, dated 18-3-2004 passed by the learned Special Court (Offences in Banks) Lahore whereby he acquitted respondents Nos. 2 and 3 under section 249-A, Cr.P.C. in a case F.I.R. No.23 of 2002, dated 7-3-2002 under sections 420/409/477-A, 418, 406/109, P.P.C. Police Station F.I.A/CCC, Lahore wherein complainant official liquidator namely, Mian Waheed Akhtar had filed application for action against Syed Ali Askri, the principal accused who had withdrawn an amount of Rs.1,35,90,718 as official liquidator appointed by the then Honourable Company Judge, Lahore High Court, Lahore and had in fact committed fraud in connivance with the Bank staff in a matter of liquidation of Messrs Hamalia Textile Mills, Pvt. Limited Sargodha Road, Faisalabad, which was under liquidation before the learned Company Judge.

2. The allegation against respondents Nos. 2 and 3 was that they had agreed to work in the T.V. drama "TAPISH" to be made by the principal accused i.e. Syed Ali Askari and received Rs.3 million as consideration for performance in the drama by the principal accused. The amount involved in the consideration was alleged by the prosecution to be part of the amount withdrawn by the principal accused from the Bank in connivance with the Bank officials as liquidator by playing fraud with the Honourable Company Judge. Challan was filed against the principal accused and also the respondents Nos. 2 and 3 in the Court of learned Special Judge (Offences in Banks) and during the proceedings of the trial, the learned trial Judge had while examining the file found that the respondents Nos. 2 and 3 had not committed any offences therefore after hearing the learned counsel for the parties, then passed the impugned order and acquitted them under section 249-A, Cr.P.C. from the charge.

3. Today we have heard the learned counsel for the appellant who has submitted that since the amount involved into the payment of consideration to the respondents Nos. 2 and 3 was from the amount involved in the commission of the offence as the principal accused had withdrawn Rs.1,35,90,718 by playing fraud with the Company Judge, as official liquidator though he was neither a Lawyer nor could be appointed as official liquidator, therefore, the consideration paid to said respondents being part of the original amount based upon the commission of offence thus the respondent was also liable for the commission of offence prima facie and could be proceeded against and after due trial, if at all, no offence was proved by the prosecution against them, they could be acquitted by the learned trial Court. It is submitted that application of section 249-A, Cr.P.C. was wrong and illegal, therefore, this appeal.

4. After hearing the learned counsel for the appellant at this preliminary stage, when a notice is yet to be issued to the State as previously in this appeal only record was called for, we after examining the record and hearing the learned counsel for the appellant, find that there is no illegality committed by the learned trial Judge by passing order under section 249-A, Cr.P.C. because firstly the element of mens rea in sharing common intention for the commission of offence by the respondents with principal accused is altogether lacking and secondly there is nothing on record to hold that the respondents Nos. 2 and 3 in any manner had the knowledge that the consideration paid to them for their performance as artist in the drama to be made by the principal accused was from the amount involved in this case and was stolen amount and was criminally misappropriated or withdrawn from the Bank through fraud. The respondents in due performance of their professional skill had agreed to perform their role in the drama "TAPISH" to be staged or released on T.V. by the principal accused thus had not committed any offence in the absence of any incriminating material against them. We do not find any justification for interference, in the impugned order. Appeal is without merit and is dismissed in limine. H.B.T./M-494/L Appeal dismissed.