P L D 1993 Quetta 49 (PLP)

13. 15/1988 -do- Rs. 07,00,000 Rs. 14,80,000 Not declared. 14. 16/1988 -do- Rs. 08,00,000 Rs. 26,39,200 Rs .2,40,920 15. 17/1988 -do- Rs. 06,00,000 Rs. 10,20,130 Rs .29,940 16. 18/1988 -do- Rs. 06,00,000 Rs. 12,00,295 Rs .5,05,977 17. 19/1988 -do- Rs. 05,00,000 Rs. 10,00,198 Rs .17,148 18. 20/1988 -do- Rs. 07,50,000 Rs. 13,45,000 Rs .30,000 19. 21/1988 -do- Rs. 07,50,000 Rs. 13,00,500 Rs .21,780 20. 22/1988 -do- Rs. 07,00,000 Rs. 14,02,771 Rs .36,000 21. 23/1988 -do- Rs. 06,00,000 Rs. 01,11,020 Rs .20,520 22. 24/1988 -do- Rs. 07,00,000 Rs. 15,35,255 Rs. 5,30,160 23. 25/1988 -do- Rs. 08,00,000 Rs. 12,62,000 Not declared. 24. 28/1988 -do- Rs. 06,00,000 Rs. 14,07,340 Rs. 2,03,076 25. 27/1988 -do- Rs. 07,50,000 Rs. 12,23,385 Rs . 45,736 26. 26/1988 -do- Rs. 07,50,000 Rs. 12,15,235 Rs. 50,088 The petitioners alongwith other Officers as well as Borrowers were nominated in the FIRs. On the completion of investigation, separate challans, were submitted before the Special Court constituted under Ordinance IX of 1984 (Offences in Respect of Banks Special Courts Ordinance), on 8tb December, 1991, wherein the names of both the petitioners were shown in Column No.2, meant for the names and addresses of the accused 'not sent-up for trial'. The Special Court registered the cases vide order, dated 14th July, 19.92, and directed issuance of process against the accused, who were sent up to face the trial.

3. On 16th December, 1992, cases covered by Criminal Revisions Nos. 13 to 21, 31, 33, 36 and 37 were taken up and the trial Judge, passed impugned order. Operative portion where of, relating to the present matters is reproduced as under:

"It transpires from the record that Waqar Ilias and Raja Khalid Banwa have been placed in Column No.2 of the challan submitted by FIA. I hereby direct that process be issued against them. To come upon 16-2-1993."????????????????? Similarly regarding the Criminal Revisions Nos.22 to 30, 32, 34, 35 and 38, identical type of order, as has been reproduced hereinabovd, was passed by the trial Judge, whereby directions were, issued for summoning the petitioner for 17th February, 1993. 3-A. The petitioners have challenged the above orders in all these petitions with the following prayer:

"It is, therefore, to pray that the t record ~ of the, Court: below be sent for and the impugned orders be set aside. ?????? 4.??? Mr. Basharatullah,, learned Advocate appeared in support of the petitions and urged as follows:

A.??? After having shown the names of the petitioners in, Column No.2, by the Investigating Offices, no , power are vested? in the Special Court to take cognizance of offence on his own. information,. in view of section 5(l) of the Ordinance IX of 1984. B. Petitioners were not sent up for trial on account of insufficient evidence and the Special Judge, tentatively accepted this position as he registered the case against the other accused on 14th July, 1992, therefore, without examining the evidence, the trial Court has no justification -for issuing process of summoning the petitioners. C. The impugned orders have been passed without assigning any reason warranting the issuance of process against the petitioners. ???????? D. No show-cause notice was issued before passing the impugned orders. On the other hand, Mr. Muhammad Riaz Ahmad, learned Standing Counsel, seriously controverted the stand ta ken by petitioners', counsel and argued as under:

A.??? The trial Judge, is competent under the law to take cognizance of the offence, against the petitioners as their names were available in the FIR as well as in Column N6.2 of the challan and the learned Judge has not initiated suo motu the action against the petitioners. B.??? Although Investigating Agency had not sent up the petitioners to face the trial, but the Presiding Officer while trying a criminal case is always empowered,,. to issue the process even against those persons, whose names rind mention in Column No.2 of the challan. C.? The Special Judge, after having gone through the record, decided issue the process and legally was not under obligation to assign reasons in the impugned order. D. The relevant law does not contemplate issuance of show-cause notice before issuing the process.

6. I have heard the learned counsel for parties and with their assistance, the relevant law and the papers, so made available have also been perused carefully.

7. Mr. Basharatullah, Advocate, to elaborate his first point, argued that under section 190 of the Code of Criminal Procedure, the Court is empowered to take cognizance of the offence suo motu, being on its own information, whereas under section 5(1) of the Ordinance IX of 1984, cognizance can be taken either upon receiving a complaint of facts, which constitutes such offence, or upon a report in writing of such facts by any Police Officer and no suo motu. powers are available to the Presiding Officer to take cognizance upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. The distinction in both the provisions of law, is very much clear, but in the cases in hand, factually learned Presiding Officer of the Special Court had not taken the cognizance upon his own knowledge or suspicion but 6n the basis of perusal of the record which had transpired, to him that the names of the petitioners are mentioned in Column No.2 of the Challan. The petitioners' counsel "Invited my attention towards the case I of Nasibullah Khan and another v. The State PLD 1986 Kar. 417 wherein the Hon'ble Division Bench concluded that the Special Judge is not competent to take cognizance on his'own information or suspicion about the commission of offence. In view of comparative study of section 190, Cr.P.C. and section 5(1) of Ordinance IX of 1984, there is no cavil with the proposition, that Special Judge had no authority to suo motu take the cognizance of the offence. But the facts of reported judgment are distinguishable from the instant cases. In that case, the accused was not challaned nor his name was appearing in Column No.2, but. during trial when statements of witnesses were recorded, then the learned Special Judge, came to the conclusion that Account-holder namely Muzafar Alam was also involved in the fraud, hence he was ordered to be joined as co-accused and non-bailable warrants were issued for his arrest. Whereas distinctly in these cases, petitioners were nominated in the F.I.Rs. and according to the wisdom of Investigating Officer, they were not sent to face trial, for want of insufficient evidence. Mr. Basharatullah, Advocate also relied on Shafique Alam Farooqi and another v. The State 1986 PCr.1J 2243. In this judgment as well, same principle was discussed, but here too, the facts were different, because two accused were arrayed before the trial Court, who were not named as accused in the challan, as such, this report also does not render any help to the learned counsel. This point can also be viewed from another angle i.e. the Presiding Officer of the Special Court had taken the cognizance of the offence before issuance of process against the petitioners. It is a settled proposition of law, that cognizance has to be taken of the offences and not of the offenders. As the Special Judge also acts, as a Magistrate, in- view of the provisions section 5(8) of Ordinance IX of 1984, therefore, while exercising powers under section 173, Cr.P.C. the Special Court was within its legal competency, to issue process against those persons whose names are appearing -in Column No.2, solely for the reason that to their extent case is yet pending and has not been cancelled nor they had been acquitted of the charge.

8. It was next contended by Mr. Basharatullah, Advocate, that prima facie, no evidence is available on record to connect the accused in the commission of offence, therefore, Special Judge had no jurisdiction to issue process for summoning them. In support of this limb of the arguments, he referred to Muhammad Saddique v. The State 1993 PCr.LJ

75. In this report hon'ble Judges of the Divisional Bench of this Court had held that there must be justification to issue process against the accused, whose names were appearing in Column* No.2 of the challan. As far as the connotation 'Legal Justification' is concerned that would near.-conscious- application of judicial mind basing on the material available on record to justify a legal action'. In my opinion, in the present case even a layman on having gone through the FIRs, detail whereof has been given hereinabove, can form an opinion tentatively that there is some evidence to justify the action against persons whose names are appearing in Column No.2. Although complete set of documents including evidence portion has not been placed before the Court by the petitioners; but even on the basis of FIRs as well as the challans, it can be. concluded that the Investigating Agency has acted in a most unlawful manner in mentioning the names of the petitioners in Column No.2 of the challan. It is to be seen that petitioners, who being responsible for sanctioning the loan, allowed financial facilities to the borrowers, on accepting fictitious documents of mortgage property, which was highly under valued and in this way million of rupees belonging to the Public Exchequers, was allowed to the Loanees against the properties which had comparatively a very meagre value and this fact is indicative from the table of the FIRs, reproduced hereinabove. Since all the relevant papers were available before the trial Court, at the time of passing impugned order against the petitioners, therefore, it is difficult to hold that without any reasons, process was issued against the petitioners. It is now settled by Hon'ble Supreme Court that while exercising jurisdiction under section, 173 of the Code of Criminal Procedure, for issuing the process against the persons, whose names are mentioned in Column No.2, the Court is not bound to record evidence and also assign reasons for issuing the process. In this behalf, case of Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428 is higher instructive. The relevant portion whereof, is reproduced hereinbelow:-- "The point involved in this case is that three persons have been accused of the offence, out of which one Muhammad Rafiq was placed in Column No.3 whereas the present petitioners were placed in Column No.2. The accused persons whose names appear in Column? No.2 of the challan can be summoned by the trial Court directly to stand the trial and it is not necessary that first some evidence should be recorded. In the present case the challan against the petitioners had not been cancelled by placing them in Column No.2. It only meant that according to the police investigation they were found innocent, and therefore, they were discharged under section 63 of the Cr.P.C. However it does not mean that they could not be summoned to stand trial by the Sessions Court. In that view of the matter we do not find any substance in this petition, which is accordingly dismissed." The above principle of law has also been followed in the case of Riasat Ali v, The State and another PLD 1993 Lahore 105. 8-A. Besides the above discussion, it is also settled principle of law ha Presiding Officer of the Court is not bound to follow the opinion of the Investigating Officer in determining, whether sufficient evidence is available against the accused persons for the purpose of sending him to face the trial or not. Such opinion can independently be formed on the basis of record so made available before the trial Judge and he is always competent to issue process against those persons, even who have not been challaned, because the criminal cases stand registered against them and the F.I.Rs. as well as challans to their extent have not been cancelled. In support of this view, I am fortified by Waqarul Haq alias Nithoo v. The State 1988 SCMR 1428, Riasat Ali v. The State PLD 1993 Lahore 105, Naubat Khan v. The State 1991 MLD 186 and Sohna Khan v. The State 1990 PCr.LJ 1190.

9. As far as non-issuance of show-cause notice is concerned, that can hardly form a ground for interfering in the impugned orders, because the petitioners have not acquired a vested right, entitling them for the right of audience before initiating any action. Before parting with the judgment, I would like to observe that the petitioners, if consider that no incriminating evidence is available against them, warranting their trial, they would be at liberty to invoke the jurisdiction of trial Court for their acquitted, under section 265-IC, Cr.P.C. and if such application is moved that will be disposed of independently, without having been influenced from the observations, made hereinabove. The upshot of the above discussion is that the petitions having no force, are dismissed. N.14.Q./436/Q Revision petitions dismissed.