1989 P Cr (PLP)

AJMAL MIAN, ACTG. CJ.‑‑ The petitioner has filed the above petition as the Manager of the Union Bank of the Middle East Ltd. which took over Messrs Dubai Bank, Limited with effect from 1‑1‑1986. In the petition the following reliefs have been prayed for:‑ "(a) that this Honourable Court be pleased to declare that the order Exh. F., dated 10th May, 1986 passed by respondent No.2 is unlawful, arbitrary, perverse, unwarranted by facts and law, without lawful authority and of no legal effect and to set aside the said order, and (b) direct the respondent No.2 to frame an appropriate charge based upon the facts, documents and record, in accordance with law under section 408/409 and/or 420, P.P.C. and also (c) direct and order respondent No.2 to deal with and try respondent No.1 in respect of the offence made out, established, brought on record after framing of appropriate charge under section 4(18/409 and/or 420, P.P.C. (d) In the event this Honourable Court comes to the conclusion that it has jurisdiction in the nature of an appeal against acquittal, to set aside the order, dated 10‑5‑1986 passed by respondent No.2 and to convict, sentence and punish the respondent No.1 for an offence under sections 408, 409 and/or 420, P.P.C. or to remand the case back to respondent No.2 with appropriate direction to frame a charge under section 408/409 and/or 420, P.P.C. against respondent No.1 and to deal with and try respondent No.1 in accordance with law. (e) For such further or other reliefs/orders as the nature and the circumstances of the case may require."

2. The brief facts leading to the filing of the' above petition are that respondent No.1 was working as the General Manager of Dubai Bank in Pakistan (hereinafter referred to as the Bank). The Bank issued a guarantee for Rs.7.5 million on behalf of Messrs Galadhari Cement Gulf Limited in favour of Bankers Equity Ltd. It may be observed that according to the petitioner the above guarantee was against the security of a foreign currency deposit amounting to U.S. Dollars 1.54 million standing m the name of A.R.E. Galadhari and Brothers, whereas according to 'respondent No.1 this was not so. Be that as it may, respondent No.1 by Memorandum dated 16‑2‑1985 instructed the Branch Manager of the Bank to transfer the above deposit to New York on the ground that Mr. A.L. Galadhari requested immediate transfer. It is the case of the petitioner that the above act of respondent No.1 caused wrongful loss to the bank and thereby he had committed an offence of criminal breach of trust and/or of cheating. The petitioner presented a complaint under section 5(1) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (hereinafter referred to as the Ordinance), for offences under sections 408 and 477‑A, P.P.C. on 26‑12‑1985 before the Presiding Officer, Special Court of Sind (Offences in Banks) Karachi, (hereinafter referred to as the Presiding Officer), which was registered as direct complaint No.3 of 1986. The Presiding Officer after examining the petitioner under section 200, Cr.P.C. on 13‑1‑1986 passed 'the following order for registration of a case under section 420, P.P.C. and ordered the issuance of bailable. warrants in the sum of Rupees one crore fifty lacs only:‑ "From the statement of complainant and by copy of letter, dated 17‑7- 1984 of Bank produced, it seems prima facie that foreign exchange amounts in question were limited with guarantee as alleged to complaint and hence I register case under section 420, P.P.C. and issue bailable warrants in the sum of Rs.1,50,00,000 (one crore fifty lac) against the accused for 1‑2‑1986, to the satisfaction of the Nazir of the High Court. (Sd.) 13‑1‑1986 (Z.C. Valiani) Presiding Officer Special Court (Offences in Banks) Karachi."

3. When on 1‑2‑1986 the case was taken up for framing of the charge the Presiding Officer after hearing the learned counsel for the petitioner and respondent No.1 passed an order on the above date under section 265‑K, Cr.P.C. acquitting the accused and discharging the bail bond executed by him. It may be observed that the learned counsel for the petitioner, Mr. Muhammad Hayat Junejo then appearing had conceded before the Presiding Officer that legally unless the amount of the foreign exchange was converted into Pakistani rupees, it could not have been accepted as a security and upon the above concession the Presiding Officer observed that he was unable to frame any charge against the accused as no scheduled offence was made out. The petitioner being aggrieved by the above order has filed the above petition on 9‑9‑1986 i.e. after the expiry of more than seven months from the date of the acquittal. In the above petition it has been averred that since the petitioner has no other adequate alternate remedy by way of appeal or otherwise available in respect of the offences triable under the Ordinance against an acquittal order, the petitioner had filed the above petition. The above petition has been resisted by respondent No.1, inasmuch as he has filed a counter‑affidavit in which it has been averred that the action initiated by the successor bank against respondent No.1 was mala fide. It has been denied that the bank guarantee for Rs.7.5 millions on behalf of Messrs Galadhari Cement (Gulf) Ltd., in favour of Bankers Equity Ltd. was against the security of Foreign Currency Deposit of Messrs A.R.E. Galadhari & Brothers. It has been averred that Galadhris were the owners of not only the said two organizations but also of Dubai Bank Limited and that the accounts of Cement Company and of Galadhari and Brothers were two separate and independent accounts. It has also been averred that the amount of U.S. $.1.5 million from the foreign currency account of Galadhari & Brothers was transferred at the request of the account holders in official manner as there was no charge or lien of the Bank on that account.

4. In support of the above petition, Mr. Sharaf Faridi, learned counsel for the petitioner has vehemently urged as follows:‑ (i) That the Presiding Officer after having found a prima facie case upon recording of the petitioner's statement under section 200, Cr.P.C. was not justified to stifle or throttle 'tie prosecution and record an acquittal order under section 265‑K, Cr.P.C. without having any further material on record and without providing opportunity to the petitioner to produce evidence. (ii) That the case was fixed on 1‑2‑1986 for framing of the charge and, therefore, in any case the Presiding Officer was not justified to pass an order under section 265‑K, Cr.P.C. as the complaint disclosed a prima facie case in any case under section 409, P.P.C. On the other hand Mr. Ahsan Zahir Rizvi, learned counsel for respondent No.1 has contended as under:‑ (i) That the petition suffers from laches. (ii) That the Presiding Officer could, on the basis of the admitted facts record an acquittal order under section 265‑K, Cr.P.C. without framing any charge or recording any evidence. (iii) That the complaint or the statement under section 200, Cr.P.C. of the petitioner does not disclose any case of criminal liability. Mr. Abdul Rahim Kazi, learned Additional Advocate‑General Sind, has adopted the arguments of learned counsel for respondent No. 1, Mr. Ashan Rizvi.

5. Before taking up the contentions on merits, it may be pertinent to take up the question of laches. In support of his above contention Mr. Ahsan Rizvi, learned counsel for respondent No.1 has invited our attention to the fact that the order of acquittal was passed on 1‑2‑1986 but the petitioner applied for certified copy on 17‑6‑1986 which was delivered to him on 18‑6‑1986, and the above petition was presented on 9‑9‑1986, as observed hereinabove. It has, therefore, been contended by him that admittedly there is laches on the part of the petitioner and this Court should not condone the same, particularly, as the petition is directed against an acquittal order in a criminal case and even if an appeal would have been provided, it could have been filed within 60 days. In furtherance of his above submission, he has referred to the following cases:‑ (i) The State v. Muhammad Saleh and another reported in P L D 1980 Kar. 131, in which a learned Single Judge of this Court while allowing suo motu revision against the pending cases in the District and Sessions Court Dadu was of the view that the delay in fling of police reports after six days was one of the adverse factors against the prosecution. (ii) Hussain Bakhsh v. Allah Bakhsh etc. reported in 1981 S C M R

410. In the above case the Honourable Supreme Court while declining the appeal for leave against an acquittal judgment has observed that it is its consistent view expressed in the cases of (i) Nazar v. The State 1968 S C M R 715, (ii) Jalal Khan v. Lakmir, 1968 S C M R 1345, (iii) Muhammad Khan v. Sultan 1969 S C M R 82, (iv) Piran Ditta v. The State 1970 S C M R 282 and (v) Nur Muhammad v. The State 1972 S C M R 331 that in petitions against acquittal delay cannot be condoned unless it is shown that the petitioner was precluded from filing his petition in time due to some act of the acquitted respondents, or by some circumstance of a compelling nature, beyond the petitioner's control and that the reason for taking the strict view is that in most jurisdictions an acquittal, once recorded by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State, but in Pakistan an acquittal can be challenged m certain circumstances. (iii) Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana reported in P L D 1976 SC 410, in which the Honourable Supreme Court while hearing an appeal against the judgment of the erstwhile High Court of W.P. at Lahore in a settlement case observed that the delay and laches were so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at that time was no ground to omit to consider the consequence of delay and laches. It was also observed that it was the duty of the respondent to explain the obvious delay in moving the writ petition and nevertheless the Supreme Court is entitled to consider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the constitutional petition. It may be pointed out that there was a delay in the above‑cited case for about six months between impugned order of rejecting respondent's application for the transfer and the Filing of the petition. In the above‑cited case the respondent instead of impugning the order of rejecting his application for the transfer participated in the auction. On the other hand Mr. Sharaf Faridi, learned counsel for the petitioner has invited our attention to para. 9 of the petition in order to explain the delay, in which inter alia it has been averred that the petitioner referred the matter to various legal experts in Pakistan and was advised that the only course of action was to invoke the extraordinary jurisdiction of this Honourable Court under Article 199 of the Constitution and that the judgment was announced on 10‑5‑1986 and a copy was made available on 18‑6‑1986 and the Court remained closed for summer vacations from 2‑6‑1986 to 2‑8‑1986 and that there has been no laches or delay on the part of the petitioner as considerable time was spent in seeking and obtaining legal opinion of counsel in view of the complicated and substantial questions of law involved regarding the remedy available and the nature of offence involved. We may point out that the date of the order is not 10‑5‑1986 as stated by the petitioner in the petition but it is 1‑2‑1986. It is, therefore, evident that the petitioner applied for a certified copy after the expiry of 4‑1/2 months from the date of the order as the application was made on 17‑6‑1986 as stated hereinabove. There seems to be no plausible reason for not applying for a certified copy of the impugned order for a period of 4‑1/2 months. We are unable to agree with the learned counsel for the petitioner that there is any justifiable reason for explaining the delay for the entire period of the delay involved in the instant case. We may observe that the question, whether delay in filing of a Constitutional petition is fatal, depends upon the facts of each case. In some cases the delay/laches of even several years has been overlooked by the superior Courts because of the facts of the cases. However, in some cases even short delay/laches has been held to be fatal. The instant petition is directed against an acquittal order. Even if we were to hold that the petitioner was entitled to apply for permission to appeal under section 417, Cr.P.C. the period for filing such an application in the High Court provided under subsection (3) of section 417, Cr.P.C. is sixty days and, therefore, the petitioner could not file an application for leave to appeal before the High Court under above section 417, Cr.P.C. after the expiry of the above period of sixty days. In our view, the petitioner cannot be placed on a better footing than a party who might have the right to apply for permission to appeal against an acquittal order under section 417, Cr.P.C. as it would be against the spirit of the law inasmuch as under section 10 of the Ordinance the right of appeal is provided to a convict against the sentence and not to the complainant or to the State against an acquittal. On the contrary under the above section 10 of the Ordinance it has been provided that `except as the right of appeal provided under the aforesaid section notwithstanding the provisions of the Code or any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court". If we were to hold that in spite of the above express exclusion of the right of an appeal to a complainant party or to the State against the acquittal, a writ petition which suffers from laches will be competent, it would be contrary to the spirit of the above section 10 of the Ordinance. We are, therefore, of the view that the above petition suffers from laches and, therefore, is liable to be dismissed on that ground. However, we have examined the case on merits.

6. Adverting to Mr. Sharaf Faridi's above first contention that the Presiding Officer after having found a prima facie case upon recording of the petitioner's statement under section 200, Cr.P.C. was not justified to stifle or throttle the prosecution and record an acquittal order under section 265‑K, Cr.P.C. without having any further material on record and without providing opportunity to the petitioner to produce evidence, it may be observed that in furtherance of his above submission he has referred to the case of Malik Muhammad Ibrahim v. The State and others reported in 1985 P Cr. L J 929, the case of State through Advocate‑General Baluchistan, Quetta v. Mir Nabi Bakhsh Khan Khoso and 4 others reported in 1986 P Cr. L J 1130 and the case of Syed Mushtaq Hussain Shah Bokhari v. The State and another reported in P L D 1981 SC

573. In the first case a Division Bench of this Court while construing section 249‑A, Cr.P.C. which corresponds to section 265‑K held as follows:‑ "It is true that a trial Court has the power to pass an order under section 249‑A, Cr.P.C. at any stage including at the initial stage if it finds that the process which he had issued should not have been issued. In the present case the complainant disclosed prima facie a criminal case and the learned Magistrate after holding preliminary enquiry issued process. No further evidence was recorded for the reason that two of the accused were not served with the process. There was no default on the part of appellant in producing the witnesses or there was factually no allegation against the appellant that he was delaying the trial. In the background of the above facts, in our view the learned trial Court was not justified in passing an order under section 249‑A, Cr.P.C." In the above‑cited second case, a Division Bench of the Quetta High Court while allowing an appeal against the acquittal order observed as follows:‑ "However, under the above‑quoted section 265‑K, Cr.P.C. there is no reference to the recording of any evidence. Under this section, a Court has been empowered to acquit an accused at any stage of the case (i) after hearing the prosecutor and the accused and (ii) for the reasons to be recorded, if it considers that there is no probability of the accused being convicted of any offence. The expression `at any stage of the case' employed in the above section, is succeptible to a very wide connotation. In our view, it will include even a stage prior to framing of charge or recording of any evidence." "We are inclined to hold that though under the above‑quoted repealed section 253, there was acquirement to record some evidence before discharging an accused on the ground that the charge was groundless, but under the above new, enacted section' 265‑K, Cr.P.C. there is no requirement to record any evidence before passing an order of acquittal, but the above section 265‑K, Cr.P.C. cannot be pressed into service to stifle or to throttle the prosecution. It is a cardinal principle of jurisprudence that the parties to a litigation should be given fair opportunity to place their respective cases. In a criminal proceeding, either the State or a private complainant is a party on one hand, and an accused on the other hand. Both are entitled to have a fair opportunity and not only an accused. Furthermore, the Court is bound to record reasons for concluding that there is no probability of the accused being convicted of any offence. The above conclusion should be based not on fanciful or imaginary reasons, but should be founded on the basis of the material available on record. In the present case, the learned trial Court has not even touched upon as to the material which was available on record. It has in one stroke brushed aside the material without even referring to it by observing that I do not find any evidence in the file against the applicants at this stage'. The power under section 265‑K, Cr.P.C. was not intended to be exercised arbitrarily and capriciously in the manner in which, the learned trial Court in the instant case, has exercised. In the above third cited case the Honourable Supreme Court while dismissing an appeal against the judgment of a learned Single Judge of the Lahore High Court, inter alia, observed that the prosecution should not be stifled at the outset and the parties should be allowed to produce their witnesses and if in the course of the proceedings it appears that the case is such that it cannot be tried without the sanction under section 197, Cr.P.C. of the appropriate Government the proceedings should be stopped and a reasonable time be given to the complainant to file the sanction of the appropriate Government and that the question of acquittal under section 265‑K of Cr.P.C. will arise only if the complainant fails to do so within a reasonable time. On the other hand Mr. Ahsan Rizvi learned counsel for respondent No.1 has referred to the case of State v. Muhammad Rafique and another reported in P L D 1983 Quetta 122 and the case of Lai v. Ghullan and others reported in 1988 P Cr. L J

990. In the first case a Division Bench of the Baluchistan High Court while construing section 249‑A, Cr.P.C. held that a Magistrate has power to acquit accused under section 249‑A at any stage if after giving notice to other party and hearing them he considers charge to be groundless irrespective of whether charge has or has not been framed; whereas in the latter case, a learned Single Judge of the Lahore High Court, while dismissing a criminal revision against an acquittal order passed under section 265‑K, Cr.P.C. by a learned Additional Sessions Judge, observed that `I feel that in order to avoid undue delay in the disposal of the cases and hardship to the parties, it is very much necessary that powers under section 265‑K, Cr.P.C. should be exercised by the trial Court as frequently as possible as this will not only save the time of the Court and relieve the parties from hardship but will also be in consonance with the intention and object of the provisions of section 265‑K, Cr.P.C.

7. From the above‑cited cases, it is evident that a trial Court can press into service section 249‑A, Cr.P.C. or section 265-K, Cr.P.C. at any stage of the trial of a criminal case which will include even the stage prior to the framing of any charge or prior to the recording of any evidence. In our view, generally the Court after having issued process after recording statements of the witnesses under section 200, Cr.P.C. and after having found a prima facie case should not record an acquittal order without providing an opportunity to the complainant to adduce further evidence after framing of the charge, but in a fit case the trial Court can record an acquittal order under the above section 249‑A, Cr.P.C. or section 265-K, Cr.P.C. even without framing of the charge or recording of the evidence if the facts of the case and the dictates of justice so demand. It will be unreasonable and contrary to the spirit of the above provisions of the Cr.P.C. if we were to hold that even in a case where the trial Court should not have initially issued the process is not entitled to rectify the above mistake at the earliest opportunity in order to eliminate harassment and inconvenience to the accused party. It is, therefore, evident that it will depend upon the facts of each case. In the instant case, as observed hereinabove, even the learned counsel for the petitioner conceded before the Presiding Officer that no charge could have been framed as the foreign exchange could not have been accepted as a security against the aforesaid bank guarantee issued by respondent No.1 on behalf of Messrs Galadhari Cement (Gulf) Ltd. in favour of Bankers Equity Ltd: Though any concession on the part of a counsel of a complainant on a legal point may not constitute estoppel, but it may be a relevant factor for examining the question, whether the Presiding Officer was justified not to frame the charge and to record an acquittal order. In the present case the complaint was filed under sections 408 and 477‑A, P.P.C. read with section 5(1) of the Ordinance, whereas upon examination of the witness by the Presiding Officer, cognizance was taken under section 420, P.P.C. But during the arguments Mr. Sharaf Faridi has contended that section 409, P.P.C. may be applicable which provides that `whoever being in any manner entrusted with property, or with any dominion over property m his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, I attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of ether description for a term which may extend to ten years, and shall also be liable to fine'. It may also be observed that section 405, P.P.C. defines criminal breach of trust as `whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of any such trust, or wilfully suffers any other person so to do, commits `criminal breach of trust'. It was vehemently urged by Mr. Sharaf Faridi that since the foreign exchange was released in violation of the direction and as the foreign exchange was the property vested in the Bank as a security against the above bank guarantee, there was a breach of trust in terms of section 405, P.P.C. read with section 409, P.P.C. However, he has not been able to produce any document to indicate that Messrs A.R.E. Galadhari & Brothers had agreed to offer their above deposit of U.S. Dollars 1.54 million as a security against the aforesaid bank guarantee of Rs.7.5 million which was issued by the Bank on behalf of Messrs Galadhari Cement (Gulf) Ltd. On the other hand Mr. Rizvi has invited our attention to the factum that even in the complaint there is no allegation of dishonesty on the part of respondent No.1 as to attract the provisions of section 405 or section 409, P.P.C. and that in the absence of any documentary evidence that Messrs,. A.R.E. Galadhari had offered their aforesaid foreign exchange deposit as a security against the above bank guarantee, even section 409, P.P.C. cannot be applied. In leaving apart the fact that foreign exchange could not have been accepted as a security against the bank guarantee in the absence of any permission from the State Bank. In furtherance of his above submission he has referred to the case of Nadir Shah v. The State reported in 1980 S C M R 402 and the case of the Janki Nath Paul v. Dhokar Mall Kedar Bux reported in A I R 1935 Pat.

376. In the above first case the Honourable. Supreme Court while dismissing an appeal against the order of remand to the Sessions Judge after setting aside acquittal order inter alia observed that in a criminal breach of trust the question of intention is of paramount importance and that in the instant case conversion/disposal of amount was not done dishonestly, benefit of doubt had to be given to accused despite temporary misappropriation. Whereas in the second case a Division Bench of the Patna High Court held that a contract of guarantee if relied on, should be proved strictly, and the consideration for the alleged contract should be stated and established.

8. It seems to be an admitted position that till today Messrs Bankers Equity Ltd. have not called upon the Bank or its successor to pay any amount under the above bank guarantee. It also seems to be an admitted position that the above foreign exchange was released at the instructions of Mr. A.L. Galadhari, who was the Deputy Chairman of the Bank, as is indicated in respondent No.l's letter, dated 16‑2‑1985 addressed to the Manager Karachi Branch of the Bank. It is also admitted position that the Bank belonged to the Galadhari family. Keeping in view the above facts and the factum that there is nothing on record before us to indicate that Messrs A.R.E. Galadhari & Brothers had offered their above deposit of foreign exchange as a security against the above bank guarantee and because of the fact that there was no permission of the State Bank to accept the foreign exchange as a security, in our view, the Presiding officer could record an acquittal under section 265‑K, Cr.P.C. without framing of the charge, particularly when it was conceded by the learned counsel for the petitioner that the foreign exchange could not .have been accepted as a security against the bank guarantee and no charge could have been framed.

9. We may also point out that we are exercising constitutional jurisdiction and, therefore, cannot constitute ourselves as a Court of Appeal. The only question before us is, as to whether the impugned order suffers from any jurisdictional defect or it violates any provision of the law as to warrant interference with the impugned order by this Court in exercise of constitutional jurisdiction though the right of appeal has been expressly taken away by the section 10 of the Ordinance. In our view the impugned order does not suffer from any jurisdictional defect nor it violates any provision of law and, therefore, the petition has no merits and hence it is dismissed but there will be no order as to costs. H.B.T./M‑638/K Petition dismissed.