1992 PLP 1484 (MLD)

(i) Affirmative. (ii) Not proved. (iii) No offence. REASONS: Mr. S.M. Khursheed, Deputy Director (P.W.1) has produced the advertisement (Exh.6) made by the accused by which Shirakatnars were invited to invest money. This fact is admitted by the accused in their written reply submitted before this Court on 13‑3‑1991 in the following words:‑ "It was admitted that at that time, under the influence of a flood of advertisements, the accused also inserted advertisements but as the accused had no acumen or tact, they did not attract any money from the public. At that time when the State Bank of Pakistan took up the enquiry, the accused had already stopped inserting advertisements. 1n the above statement (Annexure `A') the accused undertook not to advertise for any finance from public. In the above statement, it was submitted that the accused had never transacted any banking business, or acted as a Bank in any manner?

9. It may be added that prior to this case the accused were also prosecuted for the offence under section 27‑A, read with section 83(1‑D) of the Banking Companies Ordinance, 1962, and were convicted on their own plea o guilt vide judgment, dated 23‑5‑1988. On the face of this admitted position the State Bank of Pakistan had reason to believe that the accused were indulging in illegal business of banking. The word "appears" used in section 43‑A of the Banking Companies Ordinance, 1962, simply means that at the present stag there should be prima facie material before the State Bank of Pakistan indicate that the illegal business of banking complained of is likely to have bee committed. Point No.1 is, therefore, answered in affirmative.

10. POINTS NOS.2 and

3. Both these points are interconnected, hence for the sake of convenience they are being discussed together.

11. The receipts of directives (Exh.7) and (Exh.9) by the accused are not disputed. Muhammad Rafique, Inspecting Officer (P.W.2), has testified that these directives were served upon Fateh Muhammad Khan, Manager of accused No.1. The accused had sent replies to these directives vide (Exh.8) and (Exh.10) respectively. In the former reply it was made clear that the record of accused No.1 was already checked and examined by G.M. Ghazali, Inspecting Officer, State Bank of Pakistan. The reply sent by accused on 9th July, 1988 (Exh.10) is; however, material and for the sake of convenience is reproduced below:‑ "Your above letter was delivered personally by Mr. Qureshi and Pervez today. The required information is furnished hereunder inter alia. (1) Copy of Partnership deed attached. (2) NA. (3) NA. (4) NA. (5) NA. (6) Photo copy of our current bank a/c is attached. (7) Not prepared as financial year has not yet been ended. (8) No Branch in operation. (9) It may be noted that M/s. Perfect Enterprises is a partnership firm duly ‑ registered by Registrar of firms and they have three manufacturing units in Muzaffargarh Distt. The units are Ghazi Cotton Ginning Factory, Mehar Rice Mills and M.M. Industries. (10) NA. (11) As per partnership deed. During 1987 capital was invited on partnership basis but no response was received from the public. The business is being conducted on normal business lines. M/s. Perfect Enterprises (Regd.) do not indulge in the business of Banking in Pakistan. We hope the above information/explanation will meet your requirements. Kindly withdraw your notice in light of the above explanations."

12. The above reply is self‑explanatory. The accused had furnished all available information. Admittedly the Inspecting Officer had the powers to search and seize books of accounts, documents or other record relevant to the business of accused No.1, but no effort was made to seize the same, if the authorised officers of the State Bank of Pakistan were not satisfied with the replies of accused (Exh.8) and (Exh.10).

13. In criminal cases the onus is on the prosecution to prove beyond all reasonable doubt the guilt of the accused. The mens rea or a guilty mind is an essential ingredient of a criminal offence and it is a sound rule of construction to read this element in the statutory provisions unless the statute expressly by necessary implications excluded it. If any authorities are needed on t subject the cases of Pakistan and others v. Hardcastle Sond (Pakistan) Limited Karachi, reported in PLD 1967 SC 1, Jahanara Khatoon and others v. The State reported in PLD 1967 Dacca 704 and Syed Abul Aala Moududi v. The State Bank of Pakistan and another reported in PLD 1969 Lah. 908, may be cited with advantage. In the first cited case Hamoodur Rahman, J, observed as follows:‑ "Even in a case of statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implications rules it out. The mere omission of the word "knowingly" or "intentionally" is not sufficient to rebut this presumption for all that such words do is to say expressly that is normally implied."

14. The perusal of the record shows that the accused had not concealed the information called for by the State Bank of Pakistan. They had co‑operated with the authorised officers of the Bank by sending the partnership deed, and statement of Bank Account alongwith their reply (Exh.10). Accused Shabbir Ahmad Mehar, when examined on oath produced the journal (Exh.18), ledger (Exh.19) and cash book (Exh:20) before the Court. An offer was also made to the Advocate for complainant to examine the original record, if so desired.

15. All these factors when combined together show that the accused had not violated the provisions of section 43‑A of the Banking Companies Ordinance, 1962, and they are entitled to an acquittal. Accordingly they are acquitted and are discharged from their bail bonds. N.H.Q./S‑868/E Accused acquitted.