P L D 2004 Supreme Court (AJ&K) 40 (PLP)

KHAWAJA MUHAMMAD SAEED, J.

This petition for leave to appeal is directed against the judgment of the High Court dated 29-4-2003, whereby while allowing the appeal of the accused respondent the conviction order recorded by the trial Court (Judge Banks Special Court) dated 8-3-2003 was set aside and accused-respondent was acquitted from the charge.

2. Relevant facts, briefly stated, are that Iftikhar Ahmed Wani who at the relevant time was posted as Manager of Habib Bank Limited Main Branch Muzaffarabad, made a written complaint at Police Station Muzaffarabad on 20-8-1999 stating therein that Muhammad Shafique, a resident of Domushi bong Tehsil and District Muzaffarabad, moved a written application before him on 22-7-1999 to the effect that he was an account holder Number 32186 of the Habib Bank, Main Branch, Muzaffarabad. On 26-12-1998 he deposited Rs.2,25,000 in his aforesaid account. Later on he checked the account and found the said amount missing from it. He claimed that on the relevant day Naseer Ahmed, the accused-respondent, was on duty to whom the amount was given and who had also issued him the receipt in his own signatures. According to the complainant, Ch. Muhammad Shafique, the accused-respondent requested him that he should wait for some time in the meantime he will return the said amount to him. In pursuance of his commitment the accused-respondent paid him Rs.60,000 in cash and deposited Rs.20,000 in his aforesaid account and requested that rest of the amount shall be paid to the complainant. He requested him not to bring this matter in the notice of Bank authorities. The Manager Iftikhar Ahmed Wani further stated in his written complaint that amount received by accused Naseer Ahmed had not been entered in the relevant Bank register, therefore, he was guilty of criminal breach of trust and fraud.

3. The police conducted the investigation and sent the accused respondent to face the trial before the Judge Banks Special Court. The proceedings were conducted against him in accordance with law and finally the said Court found the accused respondent guilty under sections 419, 420, 468 and 471 of Penal Code and awarded him rigorous imprisonment for three years in each offence besides passing order of fine to the tune of Rs.10,000 in default of which he was ordered to undergo further rigorous imprisonment for six months.

4. Feeling aggrieved, the accused-respondent filed an appeal before the High Court. The same was accepted by the High Court on following grounds: - (i) That Iftikhar Ahmed Wani, Manager of Habib Bank, though has identified the signatures of the accused-respondent on the deposit receipt but could not explain that which of the two signatures is of the said accused. The Handwriting Expert even though was cited as witness but was given up vide statement dated 29-7-2002. In theses circumstances the doubt arising out of the statement of this wit news was resolved in favour of the accused respondent. (ii) That even though the fraud attributed to the accused-respondent was brought to the notice of Iftikhar Ahmed Wani, the Manager of the Bank, on 22-7-1999 but he took no step nor conducted any inquiry against the accused-respondent. The report was made by him on 20-8-1999 with the Police Station Muzaffarabad without furnishing any explanation for delay. (iii) That the High Court also extended the benefit of doubt to the accused-respondent on the ground that according to the prosecution case, as set up in the F.I.R, the account holder Muhammad Shafique had given the cash for deposit to the accused-respondent who was on duty at the relevant time whereas in his Court statement the said account holder has stated that he did not personally deposited the amount in his account on the relevant day rather the amount was deposited by his father who was in a better position to explain that to whom he Panded over the amount. Muhammad Siddique the father of account holder Muhammad Shafique, has stated in his Court statement that he deposited the amount through one Qadir who was 'Riksha' Driver. Qadir has not been cited or produced as witness to the case. The Qadir who was the best witness like Handwriting Expert was withheld, therefore, the High Court drew adverse inference against the prosecution in view of Article 129 of Qanun-e-Shahadat, 1984.

5. The Habib Bank Limited obtained the copies of this order on 20-6-2003 but did not file any appeal before this Court. The State filed petition for leave to appeal before this Court on 28-6-2003 and appended with the petition for leave to appeal the copies obtained by Habib Bank Limited. During the course of arguments an objection was taken by Ch. Muhammad Ibrahim Zia, the learned counsel for the accused-respondent. that this petition is not maintainable as mandatory provisions contained in the Supreme Court Rules, 1978, have not been followed strictly as required by law. According to him the period of availing the right of petition for leave to appeal before this Court was 30 days for Habib Bank whereas the State could file appeal before this Court within 60 days. The Habib Bank did not file petition for leave to appeal before this Court on account of weaknesses noticed by the High Court and later on, on its request the State has filed petition for leave to appeal before this Court without obtaining the copies required to be appended with the petition for leave to appeal, therefore, this petition on account of this legal defect is liable to be dismissed summarily on this ground. The reliance was placed upon the judgments of this Court titled Azad Government and another v. Mujahid Hussain Naqvi (2002 SCR 302) and Azad Government and others v. Abdul Salam Butt and another (Civil Appeal No.42 of 2002 decided on 16-6-20031. In both these cases the copies were obtained through such persons who were totally alien to the proceedings in question, therefore, appeals filed before this Court were held incompetent.

6. Raja Ibrar Hussain, Advocate-General and Mr. Muhammad Idrees Mugnal, the learned counsel for pro forma respondent, argued that the case of State and the Habib Bank is similar, therefore, the copies obtained by Habib Bank were rightly utilized by the State for filing petition for leave to appeal before this Court.

7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. In this case the Habib Bank is not in the line of appellants rather Habib Bank has been impleaded as pro forma respondent alongwith Naseer Ahmed. Admittedly the copies were obtained by Habib Bank. On account of unexplained reasons the Habib Bank did not file any petition for leave to appeal before this Court whereas the attested copies of the relevant documents were obtained after one and a half month when the order of acquittal was recorded by the High Court in favour of accused respondent. The Habib Bank was competent to seek the indulgence of this Court through proper proceedings if it was not satisfied by the impugned order of the High Court dated 29-4--2003. Later on, on the request of the Habib Bank the State filed this petition for leave to appeal. It has repeatedly been laid down by the superior Courts that what is not allowed to be done directly cannot be permitted to be done indirectly. So the Habib Bank in the present case is not justified to stand with the State before this Court. So far as the petition filed by the State is concerned, it is not fulfilling the requirement of the Supreme Court Rules. This is now a universal principle of law that when any act is required to be done in a particular way it must be done according to that way or not at all. Under Order XXIII, 'Rule 1 of the Azad Jammu and Kashmir Supreme Court A Rules it is laid down that the provisions applicable in respect of petition for special leave to appeal in civil proceedings shall apply to the application for leave to appeal in criminal matters. Under Order XIII, Rule 3 of the Supreme Court Rules; petition fur leave to appeal is required to be accompanied by the judgment and order sought to be appealed from alongwith the grounds of appeal before the High Court. It is the requirement of rules that copies must be obtained in the name of the State by a person duly authorized in this behalf. In the present case the copies have not been obtained by the Advocate-General or any other person authorized in this behalf, therefore, the mandatory provisions have not been complied with. This petition for leave to appeal, therefore, is not competent. The copies obtained by the Habib Bank could not be used to the benefit of Habib Bank as it has lost its right to agitate its grievance before this Court within the limitation prescribed for a private party. If we allow these copies to be read with the petition for leave to appeal filed by the State then this practice would go against the principles laid down by this Court because the Habib Bank after the expiry of limitation of one month period was not justified to file petition for leave to appeal, therefore, indirectly we, will be allowing petition for leave to appeal on these documents to the Habib Bank. This petition for leave to appeal is not properly constituted. The same, therefore, stands dismissed without entering into the merits of the case. H.B.T./21/SC(AJ&K) Petition dismissed.