1987 P Cr (PLP)

4. In support of his application, Mr. Khalid Farooq, Advocate., learned counsel for accused‑petitioner Asif Mahmood, has submitted that factually the allegation that accused‑petitioner had not got the title deeds scrutinized for their genuineness is incorrect. He has referred me to the photo copy of letter, dated 28‑8‑1980 of Senior Vice‑President N . B . P. , Lahore Zone (A) , put by him on the record of this case whereby the said S. V. P. had recommended the acceptance of resignation, dated 24‑2‑1980 of Asif Mahmood from N.B.P. specifically stating therein that the said title deeds had been duly scrutinized by Bank's Law Officer and Asif Mahmood Qureshi had recommended the loan in good faith on the basis of draft of mortgage deed prepared by Bank's Law Officer and had prima facie no bad intention (at the time) when he recommended the said loan. Learned counsel states that as a result of this letter resignation of Mr. Asif Mahmood was accepted. He has also referred me to the photo copy of declaration, dated 7‑2‑1977 of Zahoor Ahmad Chishti, Officer, N.B.P., Lahore stating that when the loan was sought he was posted in the Principal Office N.B.P. at Lahore at that time and that Alamgir Butt was his friend and he had introduced him at Mall Mansion Branch, Lahore and had accompanied him to it and given assurance to the Manager that whole business of Alamgir Butt would be transferred to Mall Mansion Branch, Lahore and that he had dealt with the case for grant of loan of Rs.50,000 personally and that he had delivered at the branch the sanction advice, the clearance certificate in respect of property mortgaged to the bank and that he had collected draft of mortgage deed from the principal office and delivered it at the branch and had typed the same at Mall Mansion, Lahore to make available the funds to the party immediately. Learned counsel for accused Asif Mahmood submits that the facts disclosed in this document show that the title deeds had also been subjected to scrutiny by the said other officer of the said bank who had asked the accused to recommend the loan limit for sanction to the higher authorities. Learned counsel for the accused has pointed out that Asif Mahmood was not named as an accused person in the F.I.R. and nothing was said against him therein although all facts were before the then Manager and higher officers at whose instance the case was registered. Learned counsel has next submitted that even if the allegation made against the accused‑petitioner in the statements of relevant P.Ws. and the police report is accepted to be correct, no offence at law is likely to be made out therefrom and, therefore, accused petitioner should be acquitted at this stage without going into the formality of recording the statements of prosecution witnesses.

5. Muhammad Ashraf Falahi, learned counsel for the complainant Bank has on my enquiry submitted that his instructions are that he is not to oppose this application, as, according to the bank, the accused petitioner had as Manager of Mall Mansion Branch recommended the grant of loan to Muhammad Alamgir Butt to the higher authorities on the recommendation of law officer of the Bank who had duly scrutinized the title deeds and on the assurance of Zahoor Ahmad Chishty, another officer of the bank to the effect that Muhammad Alamgir Butt would pay back the loan and for the same reason, bank's letter to F.I. A. for registration of a case did not mention the name of Asif Mahmood as an accused person in this case. He also states that copies of documents placed on record alongwith this application are true copies of the original record available in the bank.

6. Sardar Nazar Hussain Dogar, Special Prosecutor has, however, opposed this application on the ground that it was the duty of the accused‑petitioner as Manager of the branch to see that the party seeking loan was not a swindler and, if therefore, accused had in fact, not got the authenticity of title deeds checked, he had prima facie facilitated accused Muhammad Alamgir Butt in cheating the bank and had accordingly committed an offence under section 420/109, P.P.C. and in that situation, it cannot be said that there is no probability of his being convicted in this case if the statement of all the P.Ws. are recorded.

7. I have given my serious thought to the points raised by the learned counsel for the parties and have also gone through the record minutely.

8. Sections 249‑A and 265‑K, Cr.P.C. under which the above application has been filed authorise the Court to acquit an accused person at any stage of the case, if it considers that there is no probability of the accused being convicted of any offence. In my opinion, the said provisions of law, visualize that the Court should make an appraisal of the evidence proposed to be produced in the case and come to the conclusion on the basis of the said evidence that there is no likelihood of the accused being convicted. The evidence which is likely to be produced in the case, should not be considered to be confined to prosecution evidence only but should include in it the defence evidence which at the stage before the commencement of the trial should consist of such documents which are admitted by the opposite party for their authenticity and genuineness. Examination at the same time of said documents of unquestioned authenticity alone would ensure equal treatment to both the parties visualized by our procedural law. Apart from that under the established principles of law, the prosecution evidence is to be seen and judged in juxtaposition to the defence version and for that reason too, at the stage when power under section 249‑A/265‑K, Cr.P.C. is to be exercised, uncontroverted documentary evidence which is proposed to be produced by the accused has also to be seen before making any order under the said provision.

9. Now in this context, it may be seen that the accused has produced on record a photo copy of letter, dated 28‑8‑1980 of the Senior Vice‑President to the Vice‑President Administration Department, National Bank of Pakistan, Principal Office, Lahore, in which it was stated that title deeds were duly scrutinized by the Bank's Law Officer and accused Asif Mahmood Qureshi recommended the loan in good faith on the basis of draft of mortgage deed prepared by Bank's Law Officer and he (Asif Mahmood) had no bad intention at the time he recommended the loan. Mr. Muhammad Falahi, Advocate counsel for the complainant Bank conceded that the said photo copy was a correct copy of the original letter available in the bank. This document is thus not controverted by the bank. It is true that in a criminal case, State is the party as against the accused but it cannot be lost sight of that the prosecution of the accused by the State depends upon the material made available by the bank who is the aggrieved person in this case. Learned Special Prosecutor has not contested the genuineness of the said document and proposal of its consideration by this Court at this stage and has based his argument on the contingency of the accused petitioner having not in fact got the title deeds checked up for their genuineness and authenticity. In the circumstances, there is nothing to restrain this Court from considering this document as evidence proposed to be produced by the accused in his defence in this case. The said document clearly shows that accused Asif Mahmood Qureshi had done the act of recommending the loan to higher authorities not in the secrecy of his office but had first sent the title deeds to Law Officer of the bank for the necessary scrutiny and for drafting a mortgage deed based on the said title deeds and had not recommended the grant of said loan till after the said scrutiny, the law officer, considering the said title documents to be in order, had drafted a mortgage deed of the property relating to said title deeds. Therefore, the allegation against the accused Asif Mahmood that he had not got the said documents scrutinized for genuineness (due to which he is said to have committed an offence under section 420/109, P.P.C.) appears to stand negated on factual plans and accused Asif Mahmood Qureshi appears to be wholly innocent on that score. If, therefore, trial of the accused Asif Mahmood Qureshi takes place, he is certain to produce the said letter and the Executive Vice‑President, the author of the said letter, and other witnesses in his defence and it is almost sure to be proved by that evidence that the said accused had got the said deeds verified for their genuineness. The said proposed evidence is certain to falsify the stand of the prosecution that accused Asif Mahmood Qureshi did not get the saga documents verified for their genuineness. There is, therefore, no probability of it being held that accused Asif Mahmood Qureshi had committed the offence of abetment of the offence under section 420, P.P.C. and of his being convicted of the said offence. Accordingly, he is entitled to acquittal at this stage on this score.

10. I may, however, add that otherwise too, even if the statements', of all the prosecution witnesses who have deposed against the accused before the police, are considered to be wholly true, in my opinion, no case is likely to make out against the accused on their basis. The, witnesses relevant to the case of the prosecution against accused Asif Mahmood Qureshi are Abdul Qayyum Butt, Agha Ijaz Ali and Nayyar‑ul- Islam. The only thing which Abdul Qayyum Butt, the succeeding Manager of N.B.P. Mall Mansion Branch stated against accused Asif Mahmood Qureshi in his statement under section 161, Cr. P. C. is that he, as Manager of the said branch, ought to have, at the time of grant of loan, got the P.T.O., P.T.D. and N.E.C. verified (for their authenticity) which was part of his duty and from that it was clear that he had dishonestly given loan to Sahir Trading Company. Agha Ijaz Ali, Officer, only stated that accused Asif Mahmood had given the suai of Rs.50,000 to the party (accused Muhammad Alamgir Butt) as loan through the cheque taken into possession by police in his presence on 11‑11‑1981. Nayyar‑ul‑Islam who as paying cashier had paid the sum of Rs.50,000 to co‑accused Muhammad Alamgir Butt in the basis of cheque for the said sum of money as loan stated that it was part of duty of the accused to get the (authenticity of) P. T. O. , P. T. D. and N.E.C. 'verified before santioning the loan. And the Investigating Officer, on the basis of the said evidence, challaned accused‑petitioner Asif Mahmood Qureshi on the ground that accused‑petitioner during the period of his posting when loan for said sum of Rs.50, 000 was granted to co‑accused Muhammad Alamgir Butt, had not got the title deeds verified for their authenticity which was part of his duty and had thus, abetted the crime of co‑accused Muhammad Alamgir Butt of Sahir Trading Company in cheating the bank and inducing it to deliver to him a sum of Rs.50,000 as loan. The said witnesses are not likely to state any thing better in their Court statements than what they stated in their statements under section 161, Cr.P.C. The pith of their evidence is that accused Asif Mehmood did not get the title deeds checked up for their genuineness. The question, therefore, is whether the mere act of not getting the said title deed verified for their authenticity is sufficient to hold a person to be guilty of abetment of offence of cheating by co‑accused Alamgir Butt in the manner mentioned above. My answer to the said question is in the negative. My reasons for the same are detailed hereinafter.

11. Abetment of a thing is defined in section 107, P.P.C. while the punishment for substantive offence of abetment is prescribed in section 109, P.P.C. To the facts of the present case, clauses I and II of section 107, P.P. C. do not apply. It is only in the third clause of the said section that the present case may be said to fall. Portion of section 107, P.P. C. which is relevant to the present case is cited in extenso as below:‑‑ Section 107. ‑‑ A person abets the doing of a thing who‑‑‑

Thirdly.‑‑Intentionally side, by any act or illegal omission, the doing of that thing. Explanation:‑‑A person who, by wilful misrepresentation or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to aid the doing of that thing. Relevant portions of section 109, P.P.C. reads as below: Section 109.‑‑ Whoever abets any offence shall if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation:‑‑An act or offence is said to be committed in consequence of abetment, when it is committed .. with the aid which constitutes the abetment. It is notable that the omission mentioned in section 107, P.P.C. which is punishable under section 109, P.P.C., has to be an illegal omission which aids the doing of that thing, as, it is its illegality which makes an omission an act of abetment. To say it differently, abetment by omission is punishable only if it is an illegal omission i.e. an omission of a duty which the said person was bound to perform on account of a provision of law laying it down as legal obligation on the said person to perform the same. The omission must be a breach of a legal obligation binding that person to perform a duty. The prosecution case, however, does not show that it was a legal obligation on the part of Asif Mahmood Qureshi as Manager of the said Branch to get the said documents verified for their genuineness. The prosecution has not alleges that it was a legal obligation on the part of the accused‑petitioner to get the said documents scrutinized and checked up for their authenticity. No provision of law has been quoted by any one of the three witnesses cited above or by the Investigating Officer in the challan in which he stated that he had found the accused‑petitioner Asif Mahmood Qureshi guilty of abetment. If the witnesses and the Investigating Officer had stated that it was the duty of accused Asif Mahmood Qureshi to get the said documents scrutinised for their authenticity, they should have brought out the provision of banking law or practice or of general law under which it was legally necessary for the said accused to have done that. None of them have quoted particular provision of law which laid it down as a legal obligation on the part of the accused to get the said thing done. The Investigating Officer should have quoted in the very prosecution case the provision of law which was binding on the accused and laid it as a duty on him to get the said title deeds checked up for their genuineness. Since this has not been done, essential ingredient of section 107, P.P.C. is missing in this case. Offence of abetment under section 109, P.P.C. is obviously, therefore, not made out for that reason.

13. Furthermore, the aiding which an illegal omission should bring about should be intentional. Aiding unwittingly and unknowingly is not sufficient. It has to be conscious and wilful. In Naseebullah Khan and another v. The State P L D 1986 Kar. 417 (D. B. ) the accused, cashiers in that case had been convicted for the abetment of offence under section 403, P. P. C . committed by their co‑accused Muzaffar Alam on the ground that they had encashed the cheques for sums more than Rs.5,000 although the said cheques which ought to have been passed by two officers had been passed by one officer only. Their Lordships of the Karachi High Court held that abetment could be committed only when,, there was positive evidence of intentional aid and if the said evidence was not available, the abetment did not stand proved. In the] present case, there is absolutely no evidence on the record to the effect that accused petitioner Asif Mahmood Qureshi intentionally aided co‑accused Muhammad Alamgir Butt. It was further held in the above case that criminal negligence was not enough unless there was positive evidence available for proof of the fact that the accused person intentionally aided the original offence and that evidence was sufficient to establish the charge beyond doubt. It was further held that strict proof of abetment of the principal offence cannot be presumed simply from the fact that the said cashiers did not act upon the instruction issued by the bank that if the amount is more than Rs.5,000 the said cheques must be passed for payment with signatures of two officers. It was also held that on the basis of the fact that two cheques in question were encashed by the said cashiers in that case in spite of the fact that they were signed by one officer instead of two, are must not jump to the conclusion that they (the cashiers) had abetted the principal offence (of dishonest misappropriation of money in that case). The observations made in the said judgment apply with equal force to the case in hand. From the mere factum of accused having failed to have it ascertained whether the title deeds were genuine documents or not, it cannot be said that Asif Mahmood Qureshi had intentionally aided co‑accused Muhammad Alamgir Butt in committing principal offence under section 420, P.P.C. There is no evidence of any intentional aid. There is no evidence with the police to show any link between accused Asir Mahmood and Muhammad Alamgir Butt. It is true that one, witness Nayyar‑ul‑Islam had stated that Alamgir Butt had friendly relations with accused‑petitioner Asif Mahmood Qureshi but apart from the fact that said evidence is devoid of any corroboration from any independent source, there is the further circumstance that the mere factum of accused petitioner Asif Mahmood having friendly relations with co‑accused Muhammad Alamgir Butt does not lead to the conclusion that in omitting to make inquiry into the genuineness of the title deeds, the accused petitioner had intentionally aided and facilitated co‑accused Muhammad Alamgir Butt, to cheat the bank and induced the bank to deliver the said sum to him. As a matter of fact, it appears that the accused petitioner Asif Mahmood Qureshi was himself cheated by co‑accused Muhammad Alamgir Butt. In any way there is absolutely no evidence on the record to show that the accused petitioner had intentionally aided and facilitated co‑accused Muhammad Alamgir Butt in cheating the bank and in obtaining the said sum of Rs.50,000 from it, on the basis of the assistance intentionally and deliberately rendered by the accused petitioner Asif Mahmood Qureshi.

14. The matter can be viewed from another angle. One consequence of the words in section 107, P.P.C. that the aiding should be intentional is that accused should know all the facts constituting the offence. In England where the law as regards abetment is the same, it was held by King's Bench Division in Wessel v. Carter Paterson and Pickfords Carrters (1947) 2 All. E. R . 280 that a person could only be convicted as an eider and abettor if he knew all the circumstances which constituted the offence and he helped in the actions which constituted the offence and that was enough to convict him of being aider and abettor. Again in Ackroyds Air Travel, Ltd. v. Director of Public Prosecutions (1950) 1 All. ER 933 decided by the same Court namely King's Bench Division consisting of Lord Goddard, C.J. Humphreys and Jones, JJ, the said dictum of law was referred by Lord Goddard, C.J. with approval to maintain conviction of abetment and Lord Humphrey, J, further observed that he agreed that in order that a person may be convicted as aider and abettor of an offence, it must be shown that the person charged as an aider or abettor was aware of the facts sufficiently to enable him to know that the act was unlawful. In Radhe Kishun v. Emperor A I R 1929 Patna 157, it was held that a person who identified another who intended to cheat the Treasury Officer by personation, made the identification on the assurance of another in whom he had confidence, but did riot tell the treasury officer that he identified only on such assurance, could not be convicted of abetting the offence unless it was definitely proved that he knew that the offence was being committed that is to say that the man whom he identified was not the same. Again in Ram Nath v. Emperor A I R 1925 All. 230 it was held that "mere giving of an aid will not make the act an abetment of an offence if the person who gave the aid did not know that an offence was being committed or contemplated. The intention should be to aid an offence or facilitate the commission of an offence but if the person who lends his support does not know as has no reason to believe that the act which he was aiding or, supporting was by itself a criminal act, it cannot be said that he intentionally aids or facilitates the doing of the offence. In the present case, there is absolutely no evidence on the record to show that accused Asif Mahmood Qureshi was aware of the circumstance that the documents of title to the plot which was being mortgaged to seek loan from the bank were forged. No witness has appeared before the police to state or otherwise show that the accused petitioner Asif Mahmood Qureshi knew that the said documents were forged. It is clear, therefore, that the said accused had not by the mere act of recommending the grant of loan to co‑accused Alamgir Butt aided the said co‑accused intentionally to cheat the bank and induce it to pay the sum of Rs.50,000 to him (the co‑accused). For this reason too, on the basis of evidence adduced before the police, offence of abetment is not established against the accused.

15. As a matter of fact on the basis of above discussion, I am inclined to think that in view of the evidence collected by the police and the law applicable thereto, the accused petitioner Asif Mahmood Qureshi was wholly innocent and there was no justification for the police to have challaned this accused for offence under section 420/109, P.P.C. In my opinion, therefore, even if all the evidence proposed to be adduced by the prosecution is produced in this case and is accepted in all its details to be correct and worthy of credit, the offence of abetment of the principal offence under section 420, P.P.C. would not be found to have been committed by accused petitioner Asiff Mahmood Qureshi in this case. There is accordingly no probability of the accused being convicted of the said offence in this case.

16. For the foregoing reasons, in exercise of my powers under section 249‑A/265/K, Cr.P.C. I acquit the accused of the scheduled offence under section 420/109, P.P.C. with which he stands charged in this case. He is on bail. His bail bonds stand discharged. S. A. /3‑L Accused acquitted.